Case ID: 1861

Judgment:
ence No. 1 of 1964. Special Reference under article 143 of the Constitution of India. C.K. Dhaphtary	 Attorney General	 H.N. Sanyal	 Solicitor General	 section V. Gupte	 Addl. Solicitor General	 D. R. L. lyengar and R. H. Dhebar	 for Union of India. M.C. Setalvad	 G.S. Pathak	 Jagadish Swaroop	 S.N. Andley	 P.L. Vohra	 Rameshwar Nath	 Mahinder Ndrain	 Harish K. Puri and Suresh Vohra	 for Hon 'ble the Chief Justice and other Judges of the Allahabad High Court. G. section Pathak	 Jagdish Swaroop	 Bishun Singh	 Gopal Behari	 J.S. Trivedi	 S.N. Pawnikar	 S.N. Andley	 P.L. Vohra and Rameshwar Nath	 for Hon 'ble Mr. Justice N.U. Beg. N.C. Chatterjee	 Asif Ansari	 M.K. Ramamurthi	 and R.K. Garg for Hon 'ble Mr. Justice G.D. Sehgal. H. M. Seervai	 Advocate General	41	 Mahashtra	 T. )Z. Andhyarujina and S.P. Varma	 for U.P. Vidhan Sabha. N.A. Palkhivala	 J.B. Dadachanji	 O.C. Mathur and Ravinder Narain	 for Hon 'ble the Chief Justice	 Maharashtra High Court. J. M. Thakore	 Advocate General	 Gujarat	 J. B. Dadachanji	 O. C. Mathur and Revinder Jain	 for Hon 'ble the Chief Justice	 Gujarat High Court. D. Narsaraju	 N. R Ramdar	 O.P. Malhotra	 B. Parthasarthy	 J.B. Dadachanji	 O.C. Mathur	 and Ravinder Narain	 for Hon 'ble the Chief Justice	 Orissa High Court. Murli Manohar Vyas	 section Murti	 B.N. Kirpal	 B.L. 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. D.P. Singh	 section Balkrishnan	 Shanti Bhatnagar and Lai Narain Singh	 for Hon 'ble the Chief Justice	 Patna High Court. C.1.165 2 424 A.C. Mitra and D.N. Mukherjee	 for Hon 'ble Speker	 West Bengal Legislative Assembly. section section Sanyal	 section K. Acharyya and D. N. Mukheriee	 for Hon 'ble Chairman	 W.B.L.C. H.M. Seervai	 Advocate General	 Maharashtra	 T.R. Anand yarujina	 R.A. Gagrat and V.J. Merchant	 for Hon 'ble the Speaker/Chairman Maharashtra L.A. & L.C. G.N. loshi	 Atiqur Rehman and K.L. Hathi	 for Hon 'ble the Speaker	 Gujarat L.A. Atiqur Rehman and K.L. Hathi	 for Hon 'ble the Speaker	 Himachal Pradesh Vidhan Sabha. B.C. Barua	 Advocate General	 Assam and Naunit Lal	 for Hon 'ble the Speaker	 Assam Legislative Assembly. D.M. Sen	 Advocate General	 Nagaland and Naunit Lal	 for Nagaland Legislative Assembly. B.P. Jha	 for Hon 'ble the Chairman	 Bihar Legislative Council and Hon 'ble the Speaker Bihar Legislative Assembly. K.L. Misra	 Advocate General	 Uttar Pradesh	 B.C. Misra	 D.D. Chaudhury and C.P. Lal	 for the Advocate General for the State of U.P. M. Adhikari	 Advocate General	 Madhya Pradesh and I.N. Shroff	 for the Advocate General for the State of Madhya Pradesh. N. Krishnaswamy Reddy	 Advocate General	 Madras	 V. Ramaswamy and A.V. Rangam	 for the Advocate General for State of Madras. B.V. Subrahamanyam	 Advocate General	 State of Andhra Pradesh	 M. Jaganadha Rao and T.V.R. Tatachari	 for the Advocate General for the State of Andhra Pradesh. B. Sen	 S.C. Bose and P.K. Bose	 for the Advocate General for the State of West Bengal. G.C. Kasliwal	 Advocate General	 State of Rajasthan	 M. V. Goswami	 for the State of Rajasthan. S.P. Varma	 for the Advocate for the State of Bihar. J.P. Goyal	 for M/s. Keshav Singh and B. Soloman. M. K. Nambyar and N. N. Keswani	 for Bar Council of India. M. K. Nambyar	 Chaudhury Hyder Hussain	 B. K. Dhawan	 Bishun Singh	 Shiv Sastri and section section Shukla	 for Oudh Bar Association. 425 R. Jethmalni	 P.K. 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). M.K. Nambyar and V.A. 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 C.J. delivered the Opinion on behalf of SUBBA RAO	 WANCHOO	 HIDAYATULLAH	 SHAH AND RAJGOPALA AYYANGAR JJ. and himself. SARKAR J. delivered a separate Opinion. Gajendragadkar C.J. This is Special Reference No. 1 of 1964 by which the President has formulated five questions for the opinion of this Court under Article 143(1) of the Constitution. The Article authorises the President to refer to this Court questions of law or fact which appear to him to have arisen or are likely to arise and which are of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon them. Article 143(1) provides that when such questions are referred to this Court by the President	 the Court may	 after such hearing as it thinks fit	 report to the President its opinion thereon. In his Order of Reference made on March 26	 1964	 the President has expressed his conclusion that the questions of law set out in the Order of Reference are of such a nature and of such public importance that it is expedient that the opinion of the Supreme Court of India should be obtained thereon. It appears that on March 14	 1964	 the Speaker of the Legislative Assembly of Uttar Pradesh administered	 in the name of and under the orders of the Legislative Assembly (hereinafter referred to as "the House")	 a reprimand to Keshav Singh	 who is a resident of Gorakhpur	 for having committed contempt of the House and also for having committed a breach of the privileges of Narsingh Narain Pandey	 a member of the House. The contempt and 426 the breach of privileges in question arose because	 of a pamphlet which was printed and published and which bore the signature of Keshav Singh along with the signatures of other persons. In pursuance of the decision taken by the House later on the same	 day	 the Speaker directed that Keshav Singh be committed to prison for committing another contempt of the House by his conduct in the House when he was summoned to receive the aforesaid reprimand and for writing a disrespectful fetter to the Speaker of the House earlier. According to this order	 a warrant was issued over the signature of the Speaker of the House	 Mr. Verma	 directing that Keshav Singh be detained in the District Jail	 Lucknow	 for a Period of seven days	 and in execution of the warrant Keshav Singh was detained in the Jail. On March 19	 1964	 Mr. B. Solomon	 an Advocate practising before the Lucknow Bench of the Allahabad High Court	 presented a petition to the High Court on behalf of Keshav Singh under section 491 of the Code of Criminal Procedure	 1898	 as well as under Article 226 of the Constitution. To this petition were implemented the speaker of the House	 the House	 the Chief Minister of Uttar Pradesh and the Superintendent of the District Jail	 Lucknow	 where Keshav Singh was serving the sentence of improvement imposed on him by the House	 as respondents 1 to 4 respectively. The petition thus presented on behalf of Keshav Singh alleged that his detention in jail was illegal on several grounds. According to the petition	 Keshav Singh had been ordered to be imprisoned after the reprimand had been administered to him	 and that made the order of imprisonment illegal and without authority. 'Me petition further alleged that Keshav Singh had not been given an opportunity to defend himself and that his detention was mala fide and was against the principles of natural justice. It was also his case that respondents 1 to 3 had no authority to send him to the District Jail	 Lucknow	 and that made his detention in jail illegal. After the said petition was filed before the Lucknow Bench of the Allahabad High Court	 the learned Advocates for both the parties appeared before Beg and Sahgal JJ. at 2 P.m. and agreed that the petition should be taken up At 3 P.M. the same day. Mr. Solomon represented keshav Singh and Mr. K. N. Kapur	 Assistant Government Advocate	 appeared for all the respondents. Accordingly	 the petition was taken up before the Court at 3 P.m. On this occasion	 Mr. Solomon appeared for the petitioner but Mr. Kapur did not appear in Court. The Court then passed an Order that the applicant should be released on bail 427 on furnishing two sureties in a sum of Rs. 1	000 each and a personal bond in the like amount to the satisfaction of the District Magistrate	 Lucknow. The Deputy Registrar of the Court was asked to take necessary action in connection with the Order. The Court also directed that the applicant shall remain present in Court at every hearing of the case in future. Thus	 the petition was admitted and notice was ordered to be issued to the respondents with the additional direction that the case should be set down for hearing as early as possible. This happened on March .19	 at 3 P.m. On March 20	 1964	 Mr. Shri Rama	 the Government Advocate	 wrote to Mr. Nigam	 Secretary to Government U.P. Judicial Department	 Lucknow	 giving him information about the Order passed by the High Court on Keshav Singh 's application. In this communication	 Mr. Shri Rama has stated that after the matter was mentioned to the Court at 2 P.m. it was adjourned to 3 P.m. at the request of the parties; soon thereafter Mr. Kapur contacted Mr. Nigam on the phone	 but while the conversation was going on	 the Court took up the matter at 3 P.m. and passed the Order directing the release of Keshav Singh on terms and conditions which have already been mentioned. Mr. Shri Rama sent to Mr. Nigam three copies of the application made by Keshav Singh and suggested that arrangement should be made for making an appropriate affidavit of the persons concerned. He also told Mr. Nigam that the application was likely to be listed for hearing at a very early date. Instead of complying with the request made by the Government Advocate and instructing him to file a return in the application made by Keshav Sin 	 the House proceeded to take action against the two learned Judes why passed the order on Keshav Singh 's application	 as well as Keshav Singh and his Advocate	 on March 21	 1964. It appears that two Members of the House brought to the notice of the Speaker of the House on the 20th March what had happened before the Court in regard to the application made by Keshav Singh. Taking notice of the order passed by the High Court on Keshav Singh 's petition	 the House proceeded to pass a resolution on March 21	 1964. This resolution said that the. House Was of the denote view at M/s. G. D. Sahgal	 N. U. Beg. Keshav Singh and P. Solomon had committed contempt of the House and therefore	 it was ordered that Keshav Singh Should immediately be taken into custody and kept confined in the District Jail	 Lucknow	 for the remaining term of his impri sonment and M/s. N. U. Beg	 D. Sahgal and B. Solomon should 428 be brought in custody before the House. The resolution further added that after Keshav Singh completed the term of his imprisonment	 he should be brought before the House for having again committed contempt of the House on March 19	 1964. The two learned Judges heard about this resolution on the radio on the evening of March 21	 and read about it in the morning edition of the Northern India Patrika published on March 22	 1964. That is why they rushed to the Allahabad High Court with separate petitions under 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 U.P. and the Marshal of the House from executing the warrant. Meanwhile	 on March 25	 1964	 Mr. Solomon	 the learned Advocate of Keshav Singh	 presented a similar petition to the High Court under 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	 U.P.; the Marshal of the U.P. Legislative Assembly; 429 Mr. Saran and Mr. Ahmad	 Members of the Legislative Assembly	 U.P.	 who brought to the notice of the House the orders passed by the two learned Judges of the High Court; and the State of Uttar Pradesh. This application again was heard by a Full Bench of 28 Judges of the Allahabad High Court on March 25	 and after admitting the petition	 an interim order was passed prohibiting the implementation of the resolution the validity of which was challenged by the petitioner. At the preliminary hearing of this petition	 notice had been served on the Senior Standing Counsel who was present in Court. He stated to the Court that he had no instructions at that stage to oppose the application. That is why the Court issued notice of the application and passed what it thought would be appropriate orders. On the same day	 the House passed a clarificatory resolution. This resolution began with the statement that a misgiving was being expressed with regard to the motion passed by the House in that it could be construed as depriving the persons concerned of an opportunity of explanation	 and it added that it was never the intention of the House that a charge against a High Court Judge for committing breach of privilege or contempt of the House	 should be disposed of in a manner different from that governing breach of privilege or contempt committed by any other person. The House	 therefore	 resolved that the question of contempt may be decided after giving an opportunity of explanation to the persons named in the original resolution of March 20	 1964 according to rules. As a result of this resolution	 the warrants issued for the arrest of the two learned Judges and Mr. Solomon were 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 143(1) of the Constitution on March 26	 1964. The Order of Reference shows that it appeared to the President that the incidents in question had given rise to a serious conflict between a High Court and a State Legislature which involved important and complicated questions of law regarding the powers and jurisdiction of the High Court and its Judges in relation to the State Legislature and its officers and regarding the 430 powers	 privileges and immunities of the	 State Legislature and its members in relation to the High Court and its Judges in the discharge of their duties. The President was also satisfied that the questions of law set out in his Order of Reference were of such a nature and of such public importance that it was expedient to obtain the opinion of this Court on them. That is the genesis of the present reference. The questions referred to this Court under this Reference read as follows : (1) Whether	 on the facts and circumstances of the case	 it was competent for the Lucknow Bench of the High Court of Uttar Pradesh consisting of the Hon 'ble	 Mr. Justice N. U.	 Beg and the Hon 'ble Mr Justice G. D. Sahgal	 to entertain and deal with the petition of Mr. Keshav Singh challenging the legality of the sentence of imprisonment imposed upon him by the Legislative Assembly of Uttar Predesh for its contempt and for infringement of its privileges and to pass orders releasing Mr. Keshav Singh on bail pending the disposal of his said petition; (2) Whether	 on the facts and circumstances of the case	 Mr. Keshav Singh	 by causing the petition to be presented on his behalf to the High Court of Uttar Pradesh as aforesaid	 Mr. B. Solomon	 Advocate	 by presenting the said petition and the said two Hon 'ble ' Judges by entertaining and dealing with the said 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 143(1) because the questions referred to this Court are not related to any of the entries in Lists 1 and III and as such	 they cannot be said to be concerned with any of the powers	 duties or functions conferred on the President by the relevant articles of the Constitution. The argument appears to be that it is only in respect of matters failing within the powers	 functions and duties of the President that it would be competent to him to frame questions for the advisory opinion of this Court under article 143(1). In our opinion	 this contention is wholly misconceived. The words of article 143(1) are wide enough to empower the President to forward to this Court for its advisory opinion any question of law or fact which has arisen or which is likely to arise	 provided it appears to the President that such a question is of such a nature or of such public importance that it is expedient to obtain the opinion of this Court upon it. It is quite true that under article 143(1) even if questions are referred to this Court for its advisory opinion	 this Court is not bound to give such advisory opinion in every case. article 143(1) provides that after the questions formulated by the President are received by this Court	 it may	 after such hearing as it thinking fit	 report to 'the	 President its opinion thereon. The use of the word "may" in contrast with the use of the word "shall" in the provision prescribed by 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 143(2) it is the constitutional obligation of this Court to make a report on that reference embodying its advisory opinion	 in a reference made under article 143(1) there is no such obligation. In dealing with this latter class of reference	 it is open to this Court to consider whether it should make a report to the President giving its advisory opinion on the questions under reference. This position	 however	 has no bearing on the question raised by Mr. Varma. The validity of the objection raised by Mr. Varma must be judged in the light of the words of article 143(1) themselves and these words are of such wide amplitude that it would be impossible to accede to the argument that the narrow test suggested by Mr. Varma has to be applied in determining the validity of the reference itself. What article 143(1) requires is that the President should be satisfied that a question of law or fact has arisen or is likely to arise. He should also be satisfied that such a question is of such a nature and of such public importance that it is expedient to obtain the opinion of this Court on it. Prima facie	 the satisfaction of the President on both these counts would justify the reference	 and it is only where this Court feels that it would be inadvisable for it to express its advisory opinion on it that it may respectfully refuse to express any opinion. But there can be no doubt that in the present case it would be impossible to suggest that questions of fact and law which have been referred to this Court	 have not arisen and they are not of considerable public importance. Therefore	 we do not think there is any substance in the preliminary objection raised by Mr. Varma. The references made to this Court since the Constitution was adopted in 1950 illustrate how ' it would be inappropriate to apply the narrow test suggested by Mr. Varma in determining the competence or validity of the reference. The first Special Reference No. 1 of 1951 was made to this Court to obtain the advisory opinion of this Court on the question about the validity and constitutionality of the material provisions of the 	 the Ajmer Merwara (Extension of Laws) Act	 1947	 and the Part C States (Laws) Act	 1951(1). The second Special (1) In re: the ; 	 433 Reference(1) was made in 1958. This had reference to the validity of certain provisions of the Kerala Education Bill	 1957	 which had been passed by the Kerala Legislative Assembly	 but had been reserved by the Governor for the consideration of the President. The third Special Reference(1) was made in 1959	 and it invited the advisory opinion of this Court in regard to the validity of the material provisions of an agreement between the Prime Ministers of India and Pakistan which was described as the Indo Pakistan Agreement. The fourth Special Reference(2) was made in 1962. By this reference	 the President forwarded for the advisory opinion of this Court questions in regard to the validity of the relevant provisions of a draft Bill which was intended to be moved in the Parliament with a view to amend certain provisions of the 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 143(1). It is hardly necessary to emphasise that the questions of law which have been forwarded to this Court on the present occasion are of very great constitutional importance. The incidents which have given rise to this Reference posed a very difficult problem and unless further developments in pursuance of the orders passed by the two august bodies were arrested	 they were likely to lead to a very serious and difficult situation. That is why the President took the view that a case for reference for the advisory opinion of this Court had been established and he accordingly formulated	 five questions and has forwarded the same to us for our advisory opinion. Under article 143(1) it may be competent to the President to formulate for the advisory opinion of this Court questions of fact and law relating to the validity of the impinged provisions of existing laws; it may be open to him to formulate questions in regard to the validity of provisions proposed to be included in the Bills which would come before the Legislatures; it may also be open to him to formulate for the advisory opinion of this Court questions of constitutional importance like the present; and it may be that the President may	 on receiving our answers consider whether the Union Government or the State Government should be requested to take any	 suitable or appropriate action	 either legislative or executive in (1) In re the Kerala Education Bill	 1957	 [1959] S.C.R. 995. (2) In re: the Berubari Union	 	 (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 143(1)	 this Court may	 in a given case	 for sufficient and satisfactory reasons	 respectfully refuse to make a report containing its answers on the questions framed by the President; such a situation may perhaps arise if the questions formulated for the advisory opinion of this Court are purely socioeconomic or political questions which have no relation whatever with any of the provisions of the Constitution	 or have otherwise no constitutional significance. It is with a view to confer jurisdiction on this Court to decline to answer questions for such strong and compelling reasons that the Constitution	 or have used the word 'may ' in 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 143(1). Let us then begin by stating broadly the main contentions urged on behalf of the House and on behalf of the Judges and the Advocate. Mr. Seervai began his arguments by pointing out the fact that in dealing with reference under article 143(1)	 the Court is not exercising what may be described as its judicial function. There are no parties before the Court in such a reference and there is no his. The opinion expressed by the Court on the reference is	 therefore	 advisory; and so	 he contends that though ha appears before us in the present reference on behalf ' of the House	 he wants to make it clear that the House does not submit to the jurisdiction of this Court in any manner in respect of the area of controversy covered by the questions. In other words	 he stated that his appearance before us was without prejudice to his main contention that the question about the existence and extent of the powers	 privileges and immunities of the House	 as well as the question about the exercise of the powers and privileges were entirely and exclusively within the jurisdiction of the House; and whatever this Court may say will not preclude the House from deciding for itself the points referred to us under this Reference. This stand was based on the ground that the opinion "pressed by us is advisory and not in the nature of a judicial adjudication between the parties before the Court as such The same stand was taken by Mr. Seervai in regard to article 194(3) of the Constitution. article 194(3) deals with the question about the powers	 privileges and immunities of the Legislatures and of the Members and Committees thereof. We will have occasion to deal with the provisions of this Article later on. For the present	 it is enough to state that according to Mr. Seervai	 it is the privilege of the House to construe the relevant provisions of ' article 194(3) and determine for itself what its powers	 privileges and immunities are	 and that being so	 the opinion expressed by this Court on the questions relating to the existence and extent of its powers and privileges will not preclude the House from	 determining the same questions for itself unfettered by the views of this Court. Having	 thus made his position clear in regard to the claim which the House proposes to make in respect of its powers and Privileges	 Mr. Seervai contended that even in England this dualism between the two rival jurisdictions claimed by the Judicature and the Parliament has always existed and it still continue& 436 to be unresolved. On some occasions	 the dispute between the Judicature and the House of Commons has assumed a very bitter form and it has disclosed a complete antinomy or contradiction in the attitudes adopted by the two respective august bodies. The courts claimed that they had a right to decide the question about the existence and extent of powers and privileges in question and the Parliament consistently refused to recognise the jurisdiction of the courts in that behalf during the 17th	 18th and 19th centuries. The Parliament conceded that it could not create any new privileges	 but it insisted on treating itself as the sole and exclusive judge of the existing privileges and was not prepared to part with its authority to determine what they were	 or to deal with their breach	 and how to punish the delinquent citizens. On the other hand	 the courts insisted on examining the validity of the orders passed by the Parliament on the ground of breach of privilege	 and the dualism thus disclosed persisted for many years. Mr. Seervai 'argues that the House for which he appears adheres to the stand which the House of Commons took in similar controversies which led to a conflict between the Judicature and itself on several occasions in the past. Consistently with this attitude	 be denies the jurisdiction of the Allahabad High Court to deal with the points raised by Keshav Singh in his writ petition. Logically	 his argument is that the presentation of the petition by Keshav Singh and his Advocate amounted to contempt of the House	 and when the learned Judges entertained the petition and passed an interim order on it	 they committed contempt of the House. That is the view taken by the House	 and the propriety	 correctness	 or validity of this view is not examinable by the Judicature in this country. Alternatively	 Mr. Seervai put his argument on a slightly different basis. He conceded that for over a century past	 in England	 this controversy can be taken to have been settled to a large extent by agreement between the Judicature and the House of Commons. It now appears to be recognised by the House of Commons that the existence and extent of privilege can be examined by the courts. It also appears to be recognised by the House of Commons that if in exercise of its power to punish a person for its contempt	 it issues a speaking warrant	 it would be open to the court to consider whether the reasons set out in the warrant amount to contempt or not. To this limited extent	 the jurisdiction of the Judicature is recognised and consistently	 for the last century	 whenever it became necessary to justify the orders passed by it for its contempt	 a return has always been 437 filed in courts. Mr. Seervai	 however	 emphasises the fact that even as a result of this large measure of agreement between the Judicature and the House of Commons on the question about the nature and extent of privilege	 it appears to be taken. as settled that if an unspeaking or general warrant is issued by the House of Commons to punish a person who is guilty of its contempt	 the courts would invariably treat the said general warrant as conclusive and would not examine the validity of the order passed by the House. In the present case	 according to Mr. Seervai	 the resolution which has been passed by the House against the two learned Judges as well as against Mr. Solomon is in the nature of a general resolution and though the warrants issued against the Judges have been withdrawn	 it is clear that the decision of the House and the warrants which were initially ordered to be issued in pursuance of the said resolution	 were in the nature of general resolution and general warrants	 and so	 it would not be open to this Court to enquire the reasons for which the said warrants were issued. The resolution in question and the warrants issued pursuant to it are conclusive and must be treated as such. The argument	 therefore	 is that in answering the question formulated under the present Reference	 we should give effect to this position which appears to have been evolved by some sort of implied agreement between the Judicature and the House of Commons. This agreement shows that the right to determine questions of contempt and to decide adequacy of punishment for the said contempt belong exclusively to the House	 and if in pursuance of the said exclusive power	 a general warrant is issued	 the House can never be called upon to explain the genesis or the reasons for the said warrant. This itself is an integral part of the privileges and powers of the House	 and this integral part	 according to the House	 has been brought into India as a result of article 194(3) of the Constitution. In other words	 the argument is that even if this Court has jurisdiction to determine the scope and effect of article 194(3)	 it should bear in mind the fact that this particular Power to issue an unspeaking general warrant and to insist upon the Judicature treating the said warrant as conclusive	 is a part of the privileges to which the latter part of article 194(3) 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 194(3) falls within the exclusive jurisdiction of this Court and the High Courts and that the construction which this Court would place upon the relevant words used in the latter part of article 194(3) would finally determine the scope	 extent and character of the privileges in question. According to Mr. Setalvad	 article 194(3) cannot be read in isolation	 but must be read in its context and in the light of other important constitutional provisions	 such as articles 32	 211 and 226. When the material portion of article 194(3) is thus read	 it would appear that there is no scope for introducing any antinomy or conflict or dualism between the powers of the High Court and those of the House in relation to matters which have given rise to the present 'questions. He further urges that it would be idle for the House to adopt an attitude which the House of Commons in England appears to have adopted in the 17th	 18th and 19th centuries when conflicts arose between the said House and the Judicature. For more than a century no attempt has been made by the House of Commons	 says Mr. Setalvad	 to contend that if a citizen who is punished by the House for its alleged contempt committed by him would be guilty of another contempt if he moved the Court in its habeas corpus jurisdiction	 nor has Any attempt been made during this period by the House of Commons to proceed against a lawyer Who presents an application for habeas corpus or against Judas who entertain such applications; and so	 the argument is that we ought 'to deal with the present dispute on the basis of the common agreement which has	 by convention	 been evolved between the two august and powerful institutions	 the Judicature and the Legislature. Mr. Setalvad conceded that there appears to be some 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 P.C.I./65 3 440 or unspeaking. According to Mr. Setalvad	 since the High Court has jurisdiction to entertain a Writ Petition for habeas corpus under 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 194(3) is really the crux of the matter. At this stage	 it is necessary to read Article 194 : "194. (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature	 there shall be freedom of speech in the Legislature of every State. (2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof	 and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report	 paper	 votes	 or proceedings. (3) In other respects	 the powers	 privileges and immunities of a House of the Legislature of a State	 and of the members and the committees of a House of such Legislature shall be such as may from time to time be defined by the Legislature by law	 and	 until so defined	 shall be those of the House of Commons of Parliament of the United Kingdom	 and of its members and committees	 at the commencement of this Constitution. (4) The provisions of clauses (1)	 (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in	 and otherwise to take part in the proceedings of	 a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature." ' 441 It will be noticed that the first three material clauses of 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 19(1)(a). If all that the legislators were entitled to claim was the freedom of speech and expression enshrined in article 19(1)(a)	 it would have been unnecessary to confer the same right specifically in the manner adopted by article 194(1); and so	 it would be legi timate to conclude that article 19(1)(a) 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	 i.e.	 on January 26	 1950. It is well known that out of a large number of privileges and powers which the House of Commons claimed during the days of its bitter struggle for recognition	 some were given up in course of time	 and some virtually faded out by desuetude; and so	 in every case where a power is claimed	 it is necessary to enquire whether it was an existing power at the relevant time. It must also appear that the said power was not only claimed by the House of Commons	 but was recognised by the English Courts. It would obviously be idle to contend that if a particular power which is claimed by the House was claimed by the House of Commons but was not recognised by the English courts	 it would still be upheld under the latter part of clause (3) only on the ground that it was in fact claimed by the House of Commons. In other words	 the inquiry which is prescribed by this clause is : is 443 the power in question shown or proved to have subsisted in the House of Commons at the relevant time ? Clause (4) extends the provisions prescribed by the three preceding clauses to certain persons therein described. It will thus be seen that all the four clauses of 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 & Others(1). The implications of the first part of clause (3)may	 however	 be examined at this stage. The question is	 if the Legislature of a State makes a law which prescribes its powers	 privileges and immunities	 would this law be subject to 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 guaranteed	by Part M. As we will presently point out	 that is the effect of the decision of this Court in Pandit Sharma 's(1) case. In other words	 it must now be taken as settled (1) [1959] Supp. 1 S.C.R. 806. 444 that if a law is made under the purported exercise of the power conferred by the first part of clause (3)	 it will have to satisfy the test prescribed by the fundamental rights guaranteed by the Constitution. If that be so	 it becomes at once material to enquire whether the Constitution makers had really intended that the limitations prescribed by the fundamental rights subject to which alone a law can be made by the Legislature of a State prescribing its powers	 privileges and immunities	 should be treated as irrelevant in construing the latter part of the said clause. The same point may conveniently be put in another form. If it appears that any of the powers	 privileges and immunities claimed by the House are inconsistent with the fundamental rights guaranteed by the Constitution	 how is the conflict going to be resolved. Was it the intention of the Constitution to place the powers	 privileges and immunities specified in the latter part of cl. (3) on a much higher pedestal than the law which the Legislature of a State may make in that behalf on a future date ? As a matter of construction of clause (3)	 the fact that the first part of the said clause refers to future laws which would be subject to fundamental rights	 may assume significance in interpreting the latter part of clause (3). That	 in brief	 is the position of the first three material provisions of 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 194(3) so as to bind it. As we have already indicated	 his stand is that in the matter of privileges	 the House is the sole and exclusive judge at all stages. It may be that technically	 the advisory opinion rendered by this Court on the Reference made to it by the President may not amount to judicial adjudication properly so called and since there are no parties as such before the Court in the Reference	 nobody would be bound by our answers. But apart from this technical aspect of the matter	 it is necessary that we should determine the basic question as to whether even in the matter of privileges	 the Constitution confers on the House sole and exclusive jurisdiction as claimed by Mr. Seervai. It is common ground that the powers have to be found in article 194(3). That provision is the sole foundation of the powers	 and no power which is not included in it can be claimed by the House; and so	 at the very 'threshold of our discussion	 we must decide this question. In dealing with this question	 it is necessary to bear in mind one fundamental feature of a federal constitution. In England	 445 Parliament is sovereign; and in the words of Dicey	 the three distinguishing features of the principle of Parliamentary Sovereignty are that Parliament has the right to make or unmake any law whatever; that no person or body is recognised by the law of England is having a right to override or set aside the legislation of Parliament; and that the right or power of Parliament extends to every part of the Queen 's dominions(1). On the other hand	 the 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 legislation(2). Thus the dominant characteristic of the British Constitution cannot be claimed by a federal constitution like ours. Our Legislatures have undoubtedly plenary powers	 but these powers are controlled by the basic concepts of the written Constitution itself and can be exercised within the legislative fields allotted to their jurisdiction by the three Lists under the Seventh Schedule; but beyond the Lists	 the Legislatures cannot travel. They can no doubt exercise their plenary legislative authority and discharge their legislative functions by virtue of the powers 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 194(3) must ultimately rest exclusively with the	Judicature of this country. That is why we must over rule Mr. Seervai 's argument that the question of determining the nature	 scope and effect of the powers of the House cannot be said to lie exclusively within the jurisdiction of this Court. This conclusion	 however	 would not impair the validity of Mr. Seervai 's contention that the advisory opinion 447 rendered by us in the present Reference proceedings is not adjudication properly so called and would bind no parties as such. In coming to the conclusion that the content of article 194(3) must ultimately be determined by courts and not by the legislatures	 we are not unmindful of the grandeur and majesty of the task which has been assigned to the Legislatures under the Constitution. Speaking broadly	 all the legislative chambers in our country today are playing a significant role in the pursuit of the ideal of a Welfare State which has been placed by the Constitution before our country	 and that naturally gives the legislative chambers a high place in the making of history today. The High Courts also have to play an equally significant role in the development of the rule of law and there can be little doubt that the successful working of the rule of law is the basic foundation of the democratic way of life. In this connection it is necessary to remember that the status	 dignity and importance of these two respective institutions	 the Legislatures and the Judicature	 are derived primarily from 'the status dignity and importance of the respective causes that are assigned to their charge by the Constitution. These two august bodies as well as the Executive which is another important constituent of a democratic State	 must function not in antinovel nor in a spirit of hostility	 but rationally	 harmoniously and in a spirit of understanding within their respective spheres	 for such harmonious working of the three constituents of the democratic State alone will help the peaceful development	 growth and stabilization of the democratic way of life in this country. But when	 as in the present case	 a controversy arises between the House and the High Court	 we must deal with the problem objectively and impersonally. There is no occasion to import heat into the debate or discussion and no justification for the use of strong language. The problem presented to us by the present reference is one of construing the relevant provisions of +	he Constitution and though its consideration may present some difficult aspects	 we must attempt to find the answers as best we can. In dealing with a dispute like the present which concerns the jurisdiction	 the dignity and the independence of two august bodies in a State	 we must remember that the objectivity of our approach itself may incidentally be on trial. It is	 therefore	 in a spirit of detached objective enquiry which is the distinguishing feature of judicial process that we propose to find solutions to the questions framed for our advisory opinion. If ultimately we come to the conclusion that the view pressed before us by Mr. Setalvad for the High Court Is erroneous	 we would not hesitate to pronounce ' our verdict 448 against that view. On the other hand	 if we ultimately come to the conclusion that the claim made by Mr. Seervai for the House cannot	 be sustained	 we would not falter to pronounce our verdict accordingly. In dealing with problems of this importance and significance	 it is essential that we should proceed to discharge our duty without fear or favour	 affection or ill will and with the full consciousness that it is our solemn obligation to uphold the Constitution and the laws. It would be recalled that article 194(3) consists of two parts. The first part empowers the Legislature to define by law from time to time its powers	 privileges and immunities	 whereas the Second part provides that until the legislature chooses so to define its powers	 privileges and immunities	 its powers	 privileges and immunities would be those of the House of Commons of the Parliament of the United Kingdom and of its members and committees	 at the commencement of the Constitution. Mr. Seervai 's argument is that the latter part of article 194(3) expressly provides that all the powers which vested in the House of Commons at the relevant time	 vest in the House. This broad claim	 however	 cannot be accepted in its entirety	 because there are some powers which cannot obviously be claimed by the House. Take the privilege of freedom of access which is exercised by the House of Commons as a body and through its Speaker "to have at all times the right to petition	 counsel	 or remonstrate with their Sovereign through their chosen representative and have a favorable construction placed on his words was justly regarded by the Commons as fundamental privilege(1)". It is hardly necessary to point out that the House cannot claim this privilege. Similarly	 the privilege to pass acts of attainder and the privilege of impeachment cannot be claimed by the House. The House of Commons also claims the privilege in regard to its own Constitution. This privilege is expressed in three ways	 first by the order of new writs to fill vacancies that arise in the Commons in the course of a parliament; secondly	 by the trial of controverted elections; and thirdly	 by determining the qualifications of its members in cases of doubt(1). This privilege again	 admittedly	 cannot be claimed by the House. Therefore	 it would not be correct to say that an powers and privileges which were possessed by the House of Commons at the relevant time can be claimed by the House. In construing the relevant provision of article 194(3)	 we must deal with the question in the light of the previous decision of this (1) Sir T. Erskine May 's Parliamentary Practice(16th ed.) p. 86. (2) lbid	 p. 175. 449 Court in Pandit Sharma 's(1) case. It is	 therefore	 necessary to recall what according to the majority decision in that case	 is the position of the provision contained in article 194(3). In that case. the Editor of the English daily newspaper	 Search Light of Patna	 had been called upon by the Secretary of the Patna Legislative Assembly to show cause before the Committee of Privileges why appropriate action should not be taken against him for the breach of privileges of the Speaker and the Assembly in that he had published in its entirety the speech delivered in the Assembly by a Member	 portions of which had been directed to be expunged by the Speaker. The Editor who moved this Court under 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 194(3). Two questions arose	 one was whether the privilege claimed by the House was a subsisting privilege in England at the relevant time; and the other was	 what was the result of the impact of Articles 19 (1) (a) and 21 on the provisions contained in the latter part of Article 194(3)? The majority decision was that the privilege in question was subsisting at the relevant time and must	 therefore	 be deemed to be included under the latter part of 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 194(3)	 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 194(3)	 it must be controlled by article 19(1)(a) on the ground that fundamental rights guaranteed by Part III of the Constitution were of paramount importance and must prevail over a provision like that contained in article 194(3) which may be inconsistent with them. At this stage	 it would be useful to indicate broadly the points decided both by the majority and minority decisions in that case. Before the Court	 it was urged by the petitioner that though article (1) [1959] Supp. 1 S.C.R. 806. 450 194(3) had not been made subject to the provisions of the Constitution	 it does not necessarily mean that it is not so subject	 and that the several clauses of 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 19(1)(a). This argument was rejected both by the majority and the minority views. The next argument urged in that case was that article 194(1) in reality operates as an abridgement of the fundamental right of freedom of speech conferred by article 19(1)(a) when exercised in the State Legislatures	 but article 194(3) does not	 in terms	 purport to be an exception to article 19(1)(a). This argument was also rejected by both the majority and the ' minority views. It was 	pointed out by the majority decision that clause (1) of 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 194(1). The third argument urged by the petitioner was that article 19 enunciates a transcendental principle and should prevail over the provisions of article 194(3)	 particularly because these latter provisions were of a transitory character. This contention was rejected by the majority view	 but was upheld by the minority view. The fourth argument urged was that if a law is made by the legislature prescribing 'its powers	 privileges and immunities	 it would be subject to 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 U.P. (1). The majority decision has commented on this earlier decision and has observed that the said decision was based entirely on a concession and cannot	 therefore	 be deemed to be a considered decision of this Court. As we will presently point out	 (1) A.I.R. 1954 S.C. 636. 451 the said decision dealt with the applicability of article 22(2) to a case falling under the latter part of article 194(3). The minority opinion	 however	 treated the said decision as a considered decision which was binding on the Court. We ought to add that the majority decision	 in terms	 held that 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 194(3). It would thus be seen that in the case of Pandit Sharma(1)	 contentions urged by the petitioner did not raise a general issue as to the relevance and applicability of all the fundamental rights guaranteed by Part HI at all. The contravention of only two articles was pleaded and they were Articles 19(1)(a) and 21. Strictly speaking	 it was	 therefore	 unnecessary to consider the larger issue as to whether the latter part of article 194(3) was subject to the fundamental rights in general	 and indeed	 even on the majority view it could not be said that the said view excluded the application of all fundamental rights	 for the obvious and simple reason that 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 194(3) and any of the provisions of the fundamental rights guaranteed by Part III	 the latter must always yield to the former. The majority decision	 therefore	 must be taken to have settled that article 19(1)(a) would not apply	 and article 21 would. Having reached this conclusion	 the majority decision has incidentally commented on the decision in Gunupati Keshavram Reddy 's(2) case. Apart from the fact that there was no 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 22(2) of (1) (1959] Supp. 1 S.C.R. 806. (2) A.I.R. 1954 S.C. 636. 452 the Constitution. The facts alleged in support of this plea were admitted to be correct by the Attorney General	 and on those admitted facts	 the Court held that Mr. Mistry 's detention was clearly invalid. Referring to this decision	 the majority judgment has observed that it "proceeded entirely on a concession of counsel and cannot be regarded as a considered opinion on the subject. " There is no doubt that the first part of this comment is not accurate. A concession was made by the Attorney General not on a point of law which was decided by the Court	 but on a point of fact; and so	 this part of the comment cannot strictly be said to be justified. It is	 however	 true that there is no discussion about the merits of the contention raised on behalf of Mr. Mistry and to that extent	 it may have been permissible to the majority judgment to say that it was not a considered opinion of the Court. But	 as we have already pointed out	 it was hardly necessary for the majority decision to deal with the point pertaining to the applicability of article 22(2)	 because that point did not arise in the proceedings before the Court in Pandit Sharma 's(1) case. That is why we wish to make it clear that the orbiter observations made in the majority judgment about the validity or correctness 	of the earlier decision of this Court in Gunther Keshavram Reddy 's(1) case should not be taken as having decided the point in question. In other words	 the question as to whether article 22(2) would apply to such a case may have to be considered by this Court if and when it becomes necessary to do so. Before we part with the decision of this Court in Pandit Sharma 's(1) case	 it is necessary to refer to another point. We have already observed that the majority decision has accepted the	 contention raised by the petitioner in that case that of a law were passed by the Legislature of a State prescribing its powers	 privileges and immunities as authorised by the first part of article 194(3)	 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 194(3) is a constitutional power	 and so	 if a law is passed in exercise of the said power	 it will be outside the scope of 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 194(3); 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 S.C.R. 806. (2) A.I.R. 1954 section C. 636. 453 of article 13. That is the view which the majority decision expressed in the case of Pandit Sharma(1)	 and we are in respectful agreement with that view. Mr. Seervai attempted to support his contention by referring to some observations made by Venkatarama Aiyar J. in Ananthakrishnan vs State of Madras(1). In that case	 the learned Judge has observed that "[Art. 131 applies in terms only to laws in force before the commencement of the Constitution and to laws to be enacted by the States	 that is	 in future. It is only those two classes of laws that are declared void as against the provisions of Part III. It does not apply to the Constitution itself. It does not enact that the other portions of the Constitution should be void as against the provisions in Part III and it would be surprising if it did	 seeing that all of them are parts of one organic whole. " This principle is obviously unexceptionable. This principle could have been invoked if it had been urged before us that either the first or the second part of article 194(3) itself is invalid because it is inconsistent with the relevant provisions in Part III which provides for fundamental rights. That	 however	 is not the argument of Mr. Setalvad	 nor was it the argument urged before this Court in the case of Pandit Sharma(1). The argument was and is that if in pursuance of the power conferred by the first part of article 194(3) 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 13(2)	 requires reconsideration. The position	 therefore	 is that	in dealing with the present dispute we ought to proceed on the basis that the latter part of article 194(3) is not subject to article 19(1) (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) I.L.R. (1952] Mad. 933	 951. 454 rudely disturbed public life in England in the 17th	 18th and 19th centuries ? The Constitution makers were aware of several unhappy situations which arose as a result of the conflict between the Judicature and the Houses of Parliament and they knew that these situations threatened to create a deadlock in the public life of England. When they enacted article 194(3)	 was it their intention to leave this conflict at large	 or have they adopted a scheme of constitutional provisions to resolve that conflict ? The answer to this question would obviously depend upon a harmonious construction of the relevant provisions of the Constitution itself. Let us first take 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 226(1) can	 in a proper case	 be exercised even against the Legislature. If an application is made to the High Court for the issue of a writ of habeas corpus	 it would not be competent to the House to raise a preliminary objection that the High Court has no jurisdiction to entertain the application because the detention is by an order of the House. article 226(1) 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 226(1) is still more true about article 32(1). Whilst we are considering this aspect of the matter	 it is relevant to emphasise that the conflict which has arisen between the High Court and the House is	 strictly speaking	 not a conflict between the High Court and the House as such	 but between the House and a citizen of this country. Keshav Singh claims certain fundamental rights which are guaranteed by the Constitution and he seeks to move the High Court under article 226 on the ground that his fundamental rights have been contravened illegally. The High Court purporting to exercise its power under article 226(1)	 455 seeks to examine the merits of the claims made by Keshav Singh and issues an interim order. It is this interim order which has led to the present unfortunate controversy. No doubt	 by virtue of the resolution passed by the House requiring the Judges to appear before the Bar of the House to explain their conduct	 the controversy has developed into one between the High Court and the House; but it is because the High Court in the discharge of its duties as such Court intervened to enquire into the allegations made by a citizen that the Judges have been compelled to enter the arena. Basically and fundamentally	 the controversy is between a citizen of Uttar Pradesh and the Uttar Pradesh Legislative Assembly. That is why in dealing with the question about the extent of the powers of the House in. dealing	 with cases of contempt committed outside its four walls	 the provisions of article 226 and article 32 assume significance. We have already pointed out that in Pandit Sharma(1) this Court has held that article 21 applies where powers are exercised by the legislature under the latter part of article 194(3). 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 208(1) provides that a House of the Legislature of a State may make rules for regulating	 subject to the provisions of this Constitution	 its procedure and the conduct of its business. This provision makes it perfectly clear that if the House were to make any rules as prescribed by it	 those rules would be subject to the fundamental rights guaranteed by Part M. In other words	 where the House makes rules for exercising its powers under the latter part of article 194(3)	 those rules must be subject to the fundamen tal rights of the citizens. Similarly	 article 212(1) makes a provision which is relevant. It lays down that the validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure. article 212(2) confers immunity on the officers and members of the Legislature in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business	 or for maintaining order	 in the Legislature from being subject to the jurisdiction of any court in respect of the exercise by him of those powers. article 212(1) (1) [1959] pp. 1 S.C.R. 806. C.I.165 4 456 seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the legislative chamber if his case is that the said proceedings suffer not from mere irregularity of procedure	 but from an illegality. If the impugned procedure is illegal and unconstitutional	 it would be open to be scrutinised in a court of law	 though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular. That again is another indication which may afford some assistance in construing the scope and extent of the powers conferred on the House by article 194(3). 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 194(3). If a Judge in the discharge of his duties commits contempt of the House	 the only step that can be taken against him is prescribed by 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 194(3). That	 in substance	 is the principal argument which has been urged before us by Mr. Setalvad. On the other hand	 Mr. Seervai has argued that the effect of the provisions contained in 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 194(2) which expressly prohibit any action against a member of the Legislature for anything said or any vote given by him in the Legislature. In other words	 if a member of the Legislature contravenes the absolute prohibition prescribed by 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 U.P. vs Manbodhan Lal Srivastava(1). 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 3(c) it has provided that the Union Public Service Commission or the State Public Service Commission	 as the case may be	 shall be consulted on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity	 including memorials or petitions relating to such matters. It was held that the provisions of this clause were not mandatory and did not confer any right on a public servant	 so that the absence of consultation or any 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 194(2) in terms provides for immunity of action in any court in respect of a speech made by a member or a vote given by him in the legislative Assembly. But this provision itself emphatically brings out the fact that the Constitution was anxious to protect full freedom of speech and expression inside the legislative chamber	 and so	 it took the 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 194(2) and that is the limit to which the Constitution has gone in its objective of securing complete freedom of speech and expression within the four walls of the legislative chamber. The latter part of article 194(3) 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 194(2)	 no such exception or protection is provided in prescribing the powers and privileges of the House under the latter part of article 194(3). If a Judge in the discharge of his duties passes an order or makes observations which in the opinion of the House amount to contempt	 and the House proceeds to take action against the Judge in that behalf	 such action on the part of the House cannot be protected or justified by any specific provision made by the latter part of article 194(3). In our opinion	 the omission to make any such provision when contrasted with the actual provision made by article 194(2) is riot without significance. In other words	 this contrast leads to the inference that the Constitution makers took the view that the utmost that can be done to assure absolute freedom of speech and expression inside the legislative 459 chamber	 would be to make a provision in article 194(2); and that is about all. The conduct of a Judge in relation to the discharge of his duties cannot be the subject matter of action in exercise of the powers and privileges of the House. Therefore	 the position is that the conduct of a Judge in relation to the discharge of his duties cannot legitimately be discussed inside the	 House	 though if it is	 no remedy lies in a court of law. But such conduct cannot be made the subject matter of any proceedings under the latter part of article 194(3). 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 U.P. vs Manbodhan Lal Srivastava(1). But it would be noticed that in coming to the conclusion that the provision contained in article 320(3)(c) was not mandatory	 this Court has referred to certain other facts which determined the said construction. Even so	 this Court has accepted the principle laid down by the Privy Council in Montreal Street Railway Company vs Normandin(1) wherein the Privy Council observed that "the question whether provisions in a statute are directory or imperative has very frequently arisen in this country	 but it has been said that no general rule can be laid down	 and that in every case the object of the statute must be looked at. " question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern	 and these are to be ascertained	 not only from the phraseology of the provision	 but also by consider in its nature	 its design	 and the consequences which would follow from construing it the one way or the other. "(1) These principles would clearly negative the construction for which Mr. Seervai contends. It is hardly necessary to refer to other provisions of the Constitution which are intended to safeguard the independence of the Judicature in this country. The existence of a fearless and independent judiciary can be said to be the very basic foundation of the constitutional structure in India	 and so	 it would be idle	 we think	 to contend that the absolute prohibition prescribed by 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 N.Y.S.) (2) 694	166 Misc. (582) cited in Crawford	 Statutory Construction p. 516. 460 duties. Therefore	 we are satisfied that Mr. Setalvad is right when he contends that whatever may be the extent of the powers and privileges conferred on the House by the latter part of article 194(3)	 the power to take action against a Judge for contempt alleged to have been committed by him	 by his act in the discharge of his duties cannot be included in them. Thus	 Mr. Setalvad 's case is that so far as the Judges are concerned	 the position is quite clear that as a result of the impact of the provisions contained in Articles 226 and 211	 judicial conduct can never become the subject matter of contempt proceedings under the latter part of article 194(3)	 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 194(3) and further urges that even if Mr. Setalvad be right in respect of that contention	 he would not be entitled to dispute the validity of the power and privilege claimed by the House of Commons which can	 therefore	 be claimed by the House in the present proceedings that no court can go behind a general or unspeaking warrant. In order to determine the validity of these rival contentions	 it is now necessary to consider very briefly what was the position of this particular power and privilege at the commencement of the Constitution. In dealing with this question	 we will also very broadly refer to the wider aspect of the powers	 privileges and immunities which vest in both the Houses of Parliament in England. While considering the question of the powers	 privileges and immunities of the English Parliament it would	 we think	 be quite safe to base ourselves on the relevant statements which have been made in May 's Parliamentary Practice. This work has assumed the status of a classic on the subject and is usually regarded as an authoritative exposition of parliamentary practice; and so	 we think it would be an exercise in futility to attempt to deal with this question otherwise than by reference to May. Parliamentary privilege	 according to May	 is the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament	 and by members of each House individually	 without which they could not discharge their functions	 and which exceed those possessed by other bodies or individuals. Thus	 privilege	 though part of the law of the land	 is to a certain extent an exemption from the ordinary law. The particular privileges of the House of Commons have been defined as "the sum of the fundamental 461 rights of the House and of its individual Members as against the prerogatives of the Crown; the authority of the ordinary courts of law and the special rights of the House	 of Lords". There is a distinction between privilege and function	 though it is not always apparent. On the whole	 however	 it is more convenient to reserve the term "privilege" to certain fundamental rights of each House which are generally accepted as necessary for the exercise of its constitutional functions. The distinctive mark of a privilege is its ancillary character. The privileges of Parliament are rights which are "absolutely necessary for the due execution of its powers". They are enjoyed by individual Members	 because the House cannot perform its functions without unimpeded use of the services of its Members; and by each House for the protection of its Members and the vindication of its own authority and dignity(1). May points out that except in one respect	 the surviving privileges of the House of Lords and the House of Commons are justifiable on the same ground of necessity as the privileges enjoyed by legislative assemblies of the 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 Carson(1) it has been held that this power is inherent in the House of Lords and the House of Commons	 not as a body with legislative functions	 but as a descendant of the High Court of Parliament and by virtue of the lex et consuetudo parliamenti(1). Historically as originally the weaker body	 the Commons had a fiercer and more prolonged struggle for the assertion of their own privileges	 not only against the Crown and the courts	 but also against the Lords. Thus the concept of privilege which originated in the special protection against the King began to be claimed by the Commons as customary rights	 and some of these claims in the course of repeated efforts to assert them hardened into legally recognised "privileges". In regard to the fierce struggle by the House of Commons to assert its privileges in a militant way	 May has made the significant comment that these claims to privilege were established in the late fifteenth and in the sixteenth centuries and were used by the House of Commons against the King in the seventeenth and arbitrarily against the people in the eighteenth century. Not until the nineteenth century was equilibrium reached and the limits of privilege prescribed and accepted by Parliament	 the Crown and the Courts(3). The two Houses are thus of equal authority in the (1) May 's Parliamentary Practice pp. 42 43. (2) ; (3) May 's Parliamentary Practice	 p. 44. 462 administration of a common body of privileges. Each House	 as a constituent part of Parliament	 exercised its own privileges independently of the other. They are enjoyed	 however	 not by any separate right peculiar to each	 but solely by virtue of the law and custom of Parliament. Generally speaking	 all privileges properly so called	 appertain equally to both Houses. They are declared and expounded by each House. and breaches of privilege are adjudged and censured by each; but essentially	 it is still the law of Parliament that is thus administered. It is significant that although either House may expound the law of Parliament	 and vindicate its own privileges	 it is agreed that no new privilege can be created. This position emerged as a result of the historic resolution passed by the House of Lords in 1.704. This resolution declared "that neither House of Parliament have power	 by any vote or declaration	 to create to themselves new privileges	 not warranted by the known laws and customs of Parliament. ' This resolution was communicated by the House of Lords to Commons and assented to by them(1). Thus	 there can be no doubt that by its resolutions	 the House of Commons cannot add to the list of its privileges and powers. It would be relevant at this stage to mention broadly the main privileges which are claimed by the House of Commons. Freedom of speech is a privilege essential to every free council or legislature	 and that is claimed by both the Houses as a basic privilege. This privilege was from 1541 included by established practice in the petition of the Commons to the King at the commencement of the Parliament. It is remarkable that notwithstanding the repeated recognition of this privilege	 the Crown and the	 Commons were not always agreed upon its limits. This privilege received final statutory recognition after the Revolution of 1688. By the 9th Article of the Bill of Rights	 it was declared "that the freedom of speech	 and debates or proceedings in Parliament	 ought not to be impeached or questioned in any court or place out of Parliament"(2). Amongst the other privileges are : the right to exclude strangers	 the right to control publication of debates and proceedings	 the right to exclusive cognizance of proceedings in Parliament	 the right of each House to be the sole judge of the lawfulness of its own proceedings	 and the right implied to punish its own Members for their conduct in Parliament(1). Besides these privileges	 both Houses of Parliament were possessed of the privilege of freedom from arrest or molestation	 (1) May 's Parliamentary Practice	 p. 47. (2) Ibid.	 p. 52. (3) Ibid.	 pp. 52 53. 463 and from being impleaded	 which was claimed by the Commons on ground of prescription. Although this privilege was given royal and statutory recognition at an early date	 ironically enough the enforcement of the privilege was dependent on the Lords and King	 who were not always willing to protect the Commons. In this connection	 May refers to the case of Thorpe who was the Speaker of the House of Commons and was imprisoned in 1452	 under execution from the Court of Exchequer	 at the suit of the Duke of York. It is an eloquent testimony to the dominance of the House of Lords and the weakness of the House of Commons which was struggling to assert its freedom and its rights that when the House of Lords in response to the application of the Commons adjudged that Thorpe should remain in prison	 the Commons so easily acquiesced in this decision that they	 immediately proceeded to the election of another Speaker(1). May points out that certain privileges have in course of time	 been discontinued. Amongst them may be mentioned the freedom from being impleaded. Similarly	 by the Parliamentary Privilege Act	 1770 a very important limitation of the freedom from arrest was affected. A somewhat similar position arises in respect of the privilege of exemption from jury service (2). In fact. the list of privileges claimed by the House of Commons in early days was a long and formidable list and it showed how the House of Commons was then inclined to claim all kinds of privileges for itself and its members. In course of time	 however	 many of these privileges fell into disuse and faded out of existence	 some were controlled by legislation while the major privileges which can be properly described as privileges essential for the efficient functioning of the House	 still continued in force. In considering the nature of these privileges generally	 and particularly the nature of the privilege claimed by the House to punish for contempt	 it is necessary to remember the historical origin of this doctrine of privileges. In this connection	 May has emphasised that the original of the modern Parliament consisted in its judicial functions. "One of the principal lines of recent research"	 says May	 "has revealed the importance of the judicial elements in the origins of Parliament. Maitland	 in his introduction to the Parliament Roll of 1305	 was the first to emphasise the importance of the fact that Parliament at that time was the King 's " great court" and was thereby (among other things) the highest court of royal justice. There is now general agreement in recognising the strongly judicial streak in the character of the earliest (1) May 's Parliamentary Practice	 p. 70. (2) Ibid. pp.	 75 77. 464 Parliaments and the fact that	 even under Edward 111	 although Parliaments devoted a considerable part of their time to political and economic business	 the dispensation of justice remained one of their chief functions in the eyes of the King 's subjects"(1). As is well known	 the Parliament of the United Kingdom is composed of the Sovereign	 the House of Lords	 and the House of Commons. These several powers collectively form the Legislature; and	 as distinct members of the constitution	 they exercise functions and enjoy privileges peculiar to each. The House of Lords	 Spiritual and Temporal	 sit together	 and jointly constitute the House of Lords(2). The exact date of the admission of the Commons to a distinct place in the legislature has always been a subject of controversy; but as it is admitted that they often sat apart for deliberation	 particular instances in which they met in different places will not determine whether their 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 separation(3). The House of Lords always was and continues to be today a Court of Judicature. According to May	 the most distinguishing characteristic of the Lords is their judicature	 of which they exercise several kinds. They have the power to sit as a court during prorogation and dis solution; a Court of Appeal is constituted by the House of Lords and final appellate jurisdiction vests in them(4). May has also referred to the power claimed by the Parliament in respect of acts of attainder and impeachments	 and he has described how this privilege was exercised by the House of Lords and the House of Commons(1). "In impeachments"	 says May	 "the Commons are but accusers and advocates; while the Lords alone are judges of the crime. On the other hand	 in passing bills of attainder	 the Commons commit themselves by no accusation	 nor are their powers directed against the offender; but they are judges of equal jurisdiction	 and with the same responsibility	 as the Lords; and the accused can only be condemned by the united judgment of the Crown	 the Lords	 and the Commons(6). " This aspect of the privilege is one of the typical features of the historical development of the constitutional law in England. It would thus be seen that a part of the jurisdiction claimed by the House of Lords as well as the House of Commons can be distinctly traced to the historical origin of the modem Parliament which	 as we have just indicated	 consisted in the judicial functions of Parliament. (1) May 's Parliamentary Practice	 pp. 3 4.(2) Ibid.	 pp.8 9. (3) lbid. 	 p.12. (4) Ibid.	 pp. 38 39. (5) Ibid.	 p. 40. (6) Ibid.	 p. 41. 465 The differences in punishments inflicted by Lords and Commons is also of some significance in this context. "While both Houses agree in regarding the same offences as breaches of privilege"	 says May	 "in several important particulars there is a difference in their modes of punishment. The Lords have claimed to be a court of record and	 as such	 not only to imprison	 but to impose fines. They also imprison for a fixed time	 and order security to be given for good conduct; and their customary form of commitment is by attachment. The Commons	 on the other hand	 commit for no specified period	 and during the last two centuries have not imposed fines. There can be no question that the House of Lords	 in its judicial capacity	 is a court of record; but	 according to Lord Kenyon	 'when exercising a legislative capacity	 it is not a court of record '. Whether the House of Commons be	 in law	 a court of record	 it would be difficult to determine; for this claiming	 once firmly maintained	 has latterly been virtually abandoned	 although never distinctly renounced"(1). This last comment made by May would be of decisive significance when we later have occasion to deal with the question as to whether the privilege claimed by Mr. Seervai that a general warrant cannot be examined by courts is a part of the privilege itself	 or is the result of convention established between the courts and the House of Commons. Let us then briefly indicate	 in the words of May	 the general features of the power of commitment possessed by the House of Commons. "The power of commitment"	 says May	 "is truly described as the keystone of parliamentary privilege". As was said in the Commons in 1593	 "This court for its dignity and highness hath privilege	 as all other courts have. And	 as it is above all other courts	 so it hath privilege above all other courts; and as it hath privilege and jurisdiction too	 so hath it also Coercion and Compulsion; otherwise the jurisdiction is nothing in a court	 if it hath no Coercion" (2). The comment made by May on this power of commitment is very instructive. The origin of this power which is judicial in its nature is to be found naturally in the medieval conception of Parliament as primarily a court of justice the "High Court of Parliament". As a court functioning judicially	 the House of Lords undoubtedly possessed the power of commitment by at least as good a title as any court of Westminster Hall. But the Commons	 "new comers to Parliament" within the time of judicial memory	 could not claim the power on grounds (1) May 's Parliamentary Practice	 p. 90. (2) Ibid.	 p. 90. 466 of immemorial antiquity. As late as 1399 they had record& their protest that they were not sharers in the judgments of Parliament	 but only petitioners. The possession of the right by the Commons was challenged on this ground	 and was defended by arguments which confounded legislative with judicial jurisdiction. It was probably owing to the medieval inability to conceive of a constitutional authority otherwise than as in some sense a court of justice that the Commons succeeded in asserting their right to commit offenders on the same terms as the Lords(1). That is the genesis of the privilege claimed by the House of Commons in the matter of commitment. As the history of England shows	 the House of Commons had to engage in a fierce struggle in order to arrest recognition for this right from the King	 the House of Lords	 and in many cases the people themselves. This power was distinctly admitted by the Lords at the conference between the two Houses	 in the case of Ashby vs White(2)	 in 1704	 and it has been repeatedly recognized by courts of law. In fact this power is also virtually admitted by the statute	 I James 1	 c. 13	 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 person(3). " Now we will refer to the statement of the law in May 's book on the vexed question about the jurisdiction of courts of law in matters of privilege. May says	 it would require a separate treatise to deal adequately with a subject which raises incidentally such important questions of constitutional law. According to him	 in cases affecting parliamentary privilege the tracing of a boundary between the competence of the courts and the exclusive jurisdiction of either House is a difficult question of constitutional law which has provided many puzzling cases	 particularly from the seventeenth to the nineteenth centuries. It has been common ground between the Houses and the courts that privilege depends on the "known laws and customs of Parliament"	 and not on the ipse dixit of either House. The question in dispute was whether the law of Parliament was a "particular" law or part of the common law in its wide and extended sense	 and in the former case whether it was a superior law which overrode the common law. Arising out of this question another item of controversy arose between the courts and the Parliament and that was whether a matter of privilege should be judged solely (1) May 's Parliamentary Practice	 p. 91. (2) L.J. (1701 05)	714. (3) May 's Parliamentary Practice	 p. 92. 467 by the House which it concerned	 even when the rights of third parties were involved	 or whether it might in certain cases be decided in the courts	 and	 if so	 in what sort of cases (1). The points of view adopted by the Parliament and the courts appeared to be irreconcilable. The courts claimed the right to decide or themselves when it became necessary to do so in proceedings brought before them	 questions in relation to the existence or extent of these privileges	 whereas both the Houses claimed to be exclusive judges of their own privileges. Ultimately	 the two points of view were reconciled in practice and a solution acceptable to both he parties was gradually evolved. This solution which is marked but by the courts is to insist on their right in principle to decide ill questions of privilege arising in litigation before them	 with certain large exceptions in favour of parliamentary jurisdiction. Two of these are the exclusive jurisdiction of each House over its own internal proceedings	 and the right of either House to commit and punish for contempt. May adds that while it cannot be claimed that either House has formally acquiesced in this assumption of jurisdiction by the courts	 the absence of any conflict for over a century may indicate a certain measure of tacit acceptance(2). In other words	 'the question about the existence and extent of privilege is generally treated as justiciable in courts where it becomes relevant for adjudication of any dispute brought before the courts. In regard to punishment for contempt	 a similar process of give and take by convention has been in operation and gradually a large area of agreement has	 in practice	 been evolved. Theoretically	 the House of Commons claims that its admitted right to adjudicate on breaches of privilege implies in theory the right to determine the existence and extent of the privileges themselves. It has never expressly abandoned this claim. On the other hand	 the courts regard the privileges of Parliament as part of the law of the land	 of which they are bound to take judicial notice They consider it their duty to decide any question of privilege arising directly or indirectly in a case which falls within their jurisdiction	 and to decide it according to their own interpretation of the law(3). Naturally	 as a result of this dualism the decisions of the courts are not accepted as binding by the House In matters of privilege	 nor the decision of the House by the courts; and as May points out	 on the theoretical plane	 the old dualism remains unresolved. In practice	 however	 "there is (1) May 's Parliamentary Practice	 p. 150. (2) Ibid.	 p. 152. (3) Ibid.	 p. 172. 468 much more agreement on the nature and principles of privilege than the deadlock on the question of jurisdiction would lead one to expect" and May describes these general conclusions in the following words : (1) It seems to be recognized that	 for the purpose of adjudicating on questions of privilege	 neither House is by itself entitled to claim the supremacy over the ordinary courts of justice which was enjoyed by the undivided High Court of Parliament. The supremacy of Parliament	 consisting of the King and the two Houses	 is a legislative supremacy which has nothing to do with the privilege jurisdiction of either House acting singly. (2) It is admitted by both Houses that	 since neither House can by itself add to the law	 neither House can by its own declaration create a new privilege. This implies that privilege is objective and its extent 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 privileges(1). That broadly stated	 is	 the position of powers and privileges claimed by the House of Commons. (1) May 's Parliamentary Practice	 p. 173. (2) Ibid.	 pp. 173 74. 469 What now remains to consider is the position in regard to the special privilege with which we are concerned	 viz.	 the privilege to determine whether its contempt has been committed and to punish for such contempt	 and to claim that a general order or warrant sentencing a person for its contempt is not examinable in a court of law. Is this last right claimed by Mr. Seervai on behalf of the House a part of the privilege vesting in the House of Commons	 or is it the result of an agreement evolved between the courts and the House by convention	 or by the doctrine of comity	 or as a matter of legal presumption ? It is to this question that we must now turn. Even while dealing with this narrow question	 it is necessary	 we think	 to refer broadly to the somewhat tortuous course through which the law on this question has been gradually evolved by judicial decisions in England. Just as in dealing with the question of privileges	 on principle we have mainly based ourselves on the statements of May	 so in dealing with the evolution of the law on this question	 we will mainly rely on the decisions themselves. Both Mr. Seervai and Mr. Setalvad have referred us to a large number of English decisions while urging their respective contentions before us and in fairness	 we think we ought to mention some of the important representative decisions to indicate how this doctrine of privilege and its accompaniments has been gradual`y developed in England. For our purpose	 the story can be said to begin in the year 1677 when the Court of King 's Bench had occasion to deal with a part of this problem in The Earl of Shaftesbury 's case(1); it develops from time to time when some aspect or the other of this problem of parliamentary privileges came before the courts at Westminster until we reach 1884 when the case of Bradlaugh vs Gossett(1) was decided. Let us then begin with Shaftesbury 's case. In that case	 the Earl of Shaftesbury was committed to the Tower of London under an order of the House of Lords which directed the constable of the Tower of London to receive him and keep him in safe custody during the pleasure of the House "for high contempts committed against this House; and this shall be a sufficient warrant on that behalf. " The Earl of Shaftesbury took the matter before the Court of Kings ' Bench on a writ of habeas corpus and urged that the committal of the Earl was unjustified in law	 because the general allegation of "high contempts" was (1) (2) L.R. 12 Q.B.D. 721. 470 too uncertain for the Court to sustain. It was also argued or his behalf that in respect of the jurisdiction exercised by the Lords the boundaries of the said jurisdiction were limited by common law and its exercise was examinable in the courts. This plea was unanimously rejected by the Court which held that the Court could not question the judgment of the House of Lords as a superior court. Rainford C.J. held "that this Court hath no jurisdiction of the cause	 and therefore	 the form of the return: is not considerable". According to the learned Chief Justice	 the impugned commitment was in execution of the judgment given by the Lords for the contempt; and therefore	 if the Earl be bailed	 he would be delivered out of execution; because for a contempt in facie curiae	 there is no other judgment for execution. This case	 therefore	 accepted the principle that the House of Lords had jurisdiction to issue a warrant for contempt and that since the commitment of the person thus committed was in execution of the judgment given by the House of Lords	 the general warrant issued in that behalf was not examinable by the King 's Bench Division. Five years thereafter	 Jay moved the King 's Bench Division for release from arrest and brought an action against Topham	 the serjeant at Arms	 for arresting and detaining him. Topham pleaded to the jurisdiction of the court	 but the court rejected his plea and judgment was given in favour of Jay. Seven years thereafter	 the House of Commons declared that the said judgment was "illegal	 a violation of the privileges of Parliament	 and pernicious to the rights of Parliament". Acting on this view the two Judges were called at the Bar of the House and asked to explain their conduct. Appearing before the Bar	 Sir Francis Pemberton mentioned to the House that he had been out of the Court for more than six years and did not exactly remember what had happened in the case. He expressed surprise that he was called to the Bar without giving him enough notice as to what was the charge against him. He also urged that if the defendant should plead he did arrest him by the command of this House	 and should plead that to the jurisdiction of the Court of King 's Bench	 he would satisfy the House that such a plea ought to be overruled. That is why he asked for time to look into the records of the court to make his further pleas. Eventually	 the two Judges were ordered to be imprisoned(1). This incident has been severely criticised by all prominent writers on constitutional law in England and it would be fairly accurate to state (1) 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 Abbot(1)	 Lord Ellenborough C.J.	 observed : "It is surprising upon looking at the record in that case how a Judge should have been questioned	 and committed to prison by the House of Commons	 for having given a judgment	 which no Judge whoever sat in this place could differ from" and he added that the AttorneyGeneral who had appeared in Burdett had conceded that probably the matter was not so well understood at that time	 whereupon Lord Ellenborough observed that it was after the Revolution	 which makes such a commitment for such a cause a little alarming; and he pointed out that it must be recollected that Lord C.J.	 Pemberton stood under the disadvantage at that period of having been one of the Judges who had sat on the trial of Lord Russel	 and therefore did not stand high in popularity after the Revolution	 when the judgment and attainder in his case had been recently reversed by Parliament. Similarly	 in Stockdale vs Hansard(2)	 referring to this incident	 Lord Denman C.J. declared : "Our respect and gratitude to the Convention Parliament ought not to blind us to the fact that this sentence of imprisonment was as unjust and tyrannical as any of those acts of arbitrary power for which they deprived King James of his Crown". The next case to which reference may be made is Ashby 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 C.J.	 dissenting. Justice Gould held that he was of opinion that the action brought against the defendants was not maintainable	 and in support of his conclusion he gave four reasons; first	 because the defendants are judges of the	 and act herein as judges; secondly	 because it is a Parliamentary matter	 with which we have nothing to do; thirdly	 the plaintiff 's privilege of voting is not a matter of property or profit	 so that the hindrance of it is merely damnum sine injuria; and fourthly	 it relates to the pub lick	 and is a popular offence(1). Holt C.J.	 however	 dissented from the majority opinion and expressed his views in somewhat strong language. Referring to the opinion expressed by his colleagues that the Court cannot judge of the matter because it was a Parliamentary thing	 he exclaimed : "O by all means be very tender of that. Besides	 it is intricate	 and there may be contrariety of opinions. But this matter can never come in question in Parliament; for it is agreed that the persons for whom the plaintiff voted were elected; so that the action is brought for being deprived of his vote. "(1) He conceded that the court ought not to encroach or enlarge its jurisdiction; but he thought that the court must determine on a charter granted by the King	 or on a matter of custom or prescription	 when it comes before the court without encroaching on the Parliament. His conclusion was that if it be a matter with the jurisdiction of the Court	 "we are bound by our oaths to judge of it"(3 ) . This decision	 however	 has nothing to do with the question of contempt. The next case which deals with the question of contempt of the House of Commons	 is R. vs Paty(4). In that case	 Paty and four others were committed to Newgate by warrant issued by the Speaker of the House. The warrant was a speaking warrant and showed that the persons detained had committed contempt of the jurisdiction of the House and open breach of its known privileges. The validity of this warrant was challenged by the said persons on the ground that it suffered from many infirmities. The majority decision in the case	 however	 was that the warrant was not reversible for the alleged infirmities and that the court had no jurisdiction to deal with the matter	 because the House of Commons were the proper judges of their own privileges. Justice Powys referred to the earlier decision in The (1) ; 	 129. (3) Ibid.	 138. (2) Ibid.	 137. (4) ; 473 Earl of Shaftesbury 's case(1) and observed all commitments for contempts	 even those by this Court	 should come to be scanned	 they would not hold water. Our warrants here in such cases are short	 as for a contempt	 or for a contempt in such a cause. So in Chancery the commitments for contempts are for a contempt in not fully answering	 etc.	 and would not this commitment be sufficient ?" He held that "the House of Commons is a great Court	 and all things done by them are to be intended to have been rite acta	 and the matter need not be so specially recited in their warrants; by the same reason as we commit people by a rule of Court of two lines	 and such commitments are held good	 because it is to be intended	 that we understand what we do. "(1) It would thus be seen that the majority decision in that case proceeded on the basis that the House of Commons was a great Court and like the superior courts at Westminster	 it was entitled to issue a short general warrant for committing persons for its contempt. If such a general warrant was issued and it was challenged before the courts at Westmins ter	 it should be treated with the same respect as is accorded to similar warrants issued by the superior courts. Holt C.J.	 however	 was not persuaded to take the view that the impugned imprisonment was such "as the freeman of England ought to be bound by"; and he added	 "for that this	 which was only doing a legal act	 could not be made illegal by the vote of the House of Commons; for that neither House of Parliament	 nor both Houses jointly	 could dispose of the liberty or property of the subject; for to this purpose the Queen must join : and that it was in the necessity of their several concurrences to such acts	 that the great security of the liberty of the subject consisted." ' (p. 236). This case	 therefore	 seems to recognise that it would be inappropriate for the courts at Westminster to examine the validity of a general warrant issued by the House of Commons. That takes us to the decision in Murray 's case(3) . 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 Crosby(1). Brass Crosby was Lord Mayor of London and a Member of the House of Commons	 and as Magistrate he had admitted to bail a person who had been committed to prison under a warrant issued by the Speaker of the House under the orders of the House itself. The House held that Lord Mayor was guilty of breach of privilege of the House	 and as such he was committed to the Tower of London. The validity of this order was challenged by Brass Crosby. The challenge	 however	 failed on the ground that when the House of Commons adjudges anything to be a contempt or a breach of privilege	 their adjudication is a conviction	 and their commitment in consequence is in execution. As Lord C.J. de Grey observed	 "no court can discharge or bail a person that is in execution by the judgment of any other court	 and so, he came to the conclusion that the House of Commons having authority to commit	 and that commitment being an execution	 the question is what can this Court do ? He gave the answer with the remark that "it can do nothing when a person is in execution	 by the judgment of a court having a competent jurisdiction; in such case	 this Court is not a court of appeal. "(2) Concurring with this view	 Blackstone J. observed that the House of Commons is a Supreme Court and he was impressed by the argument that "it would occasion the utmost confusion	 if every Court of this Hall should have power to examine the commitments of the other Courts of the Hall	 for contempts; so that the judgment and commitment of each respective Court	 as to contempts	 must be final	 and without control. "(1) It would thus be seen that this decision proceeded on the same ground which had by then been recognised that the House of Commons was a superior 	court and as such had jurisdiction to punish persons adjudged (1) ; (3) Ibld.	 1014. (2) Ibid.	 1011. 475 by it to be guilty of contempt. A general warrant issued by the House in respect of such a contempt was treated as of the same status as a similar warrant issued by other superior courts at Westminster Hall. Before parting with this case	 we may incidentally advert to the comment made by Lord Denman C.J. on this decision. Said Lord Denman : "We know now	 as a matter of history	 that the House of Commons was at that time engaged	 in unison with the Crown	 in assailing the just rights of the people. Yet that learned Judge [Blackstone J.] proclaimed his unqualified resolution to uphold the House of Commons	 even though it should have abused its power(1). " The next important decision on this topic is Sir Francis Burdett 's case(1). This case arose out of an action of trespass which Sir Francis Burdett commenced against the Speaker of the House of Commons for breaking and entering his house	 and imprisoning him in the Tower. The plea raised in defence was that the conduct of the defendant was justified by an order of the House for Burdett 's committal after the House had adjudicated that he had been guilty of a contempt of the House by publishing a libellous and scandalous paper reflecting on the just rights and privileges of the House. The case was elaborately argued and as May points out : "This case provides one of the principal authorities for the Commons ' power (as Lord Shaftesbury 's case does for the Lords ') to commit for contempt(	 '). " The warrant in this case was a speaking warrant and the contempt was the contempt of the House of Commons. The plea made by Burdett was rejected	 but the reasons given for rejecting the plea are significant. Lord Ellenborough C.J. has considered the question exhaustively. He has observed that upon the authority of precedents in Parliament	 upon the recognition by statute	 and upon the continued recognition of all Judges	 he should have thought that there was a quantity of authority enough to have put the question to rest	 that is	 whether the House of Commons has the power of commitment for a contempt of their privileges ? The House undoubtedly had that power. Proceeding to deal with the matter on that basis	 Lord Ellenborough held that the House was competent to decide both as to the fact and the effect of the publication which was held by it to be libellous	 and he added that by analogy to the judgment of a Court of law	 (and the judgments of either House of Parliament cannot with propriety (1) Stockdale vs Hansard	 112 E.R. 1112	1158. (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 man(2). " 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 Middlesex(1). Naturally	 Mr. Seervai has laid considerable emphasis on this decision. He has pointedly drawn our attention to the fact that the Court found itself powerless to protect the Sheriffs of Middlesex against their imprisonment	 though the conduct which gave rise to contempt of the House was	 in terms	 the result of an order passed by the Court. Lord Denman C.J.	 who had himself elaborately discussed the question and disputed the validity of the claim made by the House of Commons in regard to its privi (1) ; 479 leges in the case of Stockdale vs Hansard(1)	 was a party to this decision. He began his judgment by declaring that his earlier judgment delivered in the case of Stockdale vs Hansard(1) was correct in all respects. Even so	 the plea raised by the Sheriffs had to be answered against them	 because their commitment was sustained by a legal warrant. Lord Denman then examined the three grounds on which the validity of the warrant was impeached and he found that there was no substance in those pleas. The learned Chief Justice considered the previous decisions bearing on the point and observed that the test prescribed by Lord Eldon in the case of Burdett 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 C.J. said : "if the warant declares the grounds of adjudication	 this Court	 in many cases	 will examine into their validity; but	 if it does not	 we cannot go into such an inquiry. Here we must suppose that the House adjudicated with sufficient reason; and they were the proper judges". Justice Williams	 who also concurred with Lord Denman	 thought it necessary to add ' that "if the return	 in a case like this	 shewed a frivolous cause of commitment	 as for wearing a particular dress	 I should agree in the opinion expressed by Lord Ellenborough in Burdett vs Abbot(1)	 where he distinguishes between a commitment stating a contempt generally	 and one appearing by the return to be made on grounds palpably unjust and absurd. Coleridge J. preferred ' to put his conclusion on the ground that "[the right of the House of Commons] to adjudicate in this general form in cases of contempt is not founded on privilege	 but rests upon the same grounds on which this Court or the Court of Common Pleas might commit for a contempt without stating a cause in the commitment. " It is remarkable that Justice Coleridge thought it necessary to make it clear that the right to require a general warrant to be respected ' when its validity is challenged in habeas corpus proceedings	 is now 	a part of the privilege itself; it is the result of a convention by which such warrants issued by superior courts of record are usually respected. This decision was pronounced in 1840	 and ' can be said to constitute a landmark in the development of the law on this topic. Thus	 this decision also does not assist Mr. Seervai in contending that it is a part of the privilege of the" (1) 11 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 Gosset(1). In that case	 by a majority decision a warrant issued by the Speaker of the House against Howard was held to be invalid as a result of certain infirmities discovered in the warrant. Williams J. alone dissented. The warrant in this case was a general warrant and Williams J. held that the technical objections raised against the validity of the warrant could not be entertained	 because a general warrant should be treated as conclusive of the fact that the party against whom the warrant had been issued had been properly adjudged to be guilty of contempt. Since the judgment was pronounced in favour of the plaintiff Howard	 the matter was taken in appeal	 and the majority decision was reversed by the Court of Exchequer. Parke B. considered the several arguments urged against the validity of the warrant and rejected them. The general ground for the decision of the Court of Exchequer was expressed in these words : "We are clearly of opinion that at least as much respect is to be shewn	 and as much authority to be attributed	 to these mandates of the House as to those of the highest Courts in the country; and	 if the officers of the ordinary Courts are bound to obey the process delivered to them	 and are therefore protected by it	 the officer of the House of Commons is as much bound and equally protected. The House of Commons is a part of the High Court of Parliament	 which is without question not merely a Superior but the Supreme Court in this country	 and higher than the ordinary courts of law(1)". Thus	 the result of this decision is that the House of Commons being part of the High Court of Parliament is a superior Court and the general warrants issued by it cannot be subjected to the close scrutiny	 just as similar warrants issued by other superior courts of record are held to be exempt from such scrutiny. It would be noticed that the Court of Exchequer has observed in this case that the House of Commons as a part of the High Court of Parliament	 is a Supreme Court in this country and is higher than the ordinary courts of law; and this recalls the original judicial character of the House of Parliament in its early career and emphasises the fact that the House of Lords which is a part of the House of Parliament still continues to be the highest court of law in England. The last case in this series to which we ought to refer is the decision of the Queen 's Bench Division in Bradlaugh vs (1) ; (2) 1bid. 	 at 174. 481 Gossett(1). This decision is not directly relevant or material but since Mr. Seervai appeared to rely on certain statements of law enunciated by Stephen J.	 we think it necessary to refer to it very briefly. In the case of Bradlaugh the Court was called upon to consider whether an action could lie against the Serjeantat Arms of the House of Commons for excluding a member from the House in obedience to a resolution of the House directing him to do so; and the answer was in the negative. It appears that the material resolution of the House of Commons was challenged as being contrary to law	 and in fact the Queen 's Bench Division proceeded to deal with the claim of Bradlaugh on the footing that the said resolution may strictly not be in accordance with the true effect of the relevant provision of the law; and yet it was held that the matter in dispute related to the internal management of the procedure of the House of Commons	 and so	 the Court of Queen 's Bench had no power to interfere. It was pressed before the Court that the resolution was plainly opposed to the relevant provision of the law. In repelling the validity of this argument	 Stephen J.	 observed that in relation to the rights and resolutions concerning its internal management	 the House stood precisely in the same relation "as we the judges of this Court stand in to the laws which regulate the rights of which we are the guardians	 and to the judgments which apply them to particular cases; that is to say	 they are bound by the most solemn obligations which can bind men to any course of conduct whatever	 to guide their conduct by the law as they understand it". The learned Judge then proceeded to add "If they misunderstand it	 or (I apologize for the supposition) wilfully disregard it	 they resemble mistaken or unjust judges; but in either case	 there is in my judgment no appeal from their decision. The law of the land gives no such appeal; no precedent has been or can be produced in which any Court has ever interfered with the internal affairs of either House of Parliament	 though the cases are no doubt numerous in which the Courts have declared the limits of their powers outside of their respective Houses". That	 said the learned Judge	 was enough to justify the conclusion which he had arrived at(1). Mr. Seervai 's argument was that though the resolution appeared to constitute an infringement of the Parliamentary Oaths Act	 the Court refused to give any relief to 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 Glass(1). In that case by the Constitution Act for the Colony of Victoria power had been given to the Legislative Assembly of Victoria to commit by a general warrant for contempt and breach of privilege of that Assembly. In exercise of that power	 Glass was declared by the House to have committed contempt and under the Speaker 's warrant	 which was in general terms	 he was committed to jail. A habeas corpus petition was then moved on his behalf and this petition was allowed by the Chief Justice of the Supreme Court in the Colony	 on the ground that the Constitution Statute and the Colonial Act did not confer upon the Legislative Assembly the same powers	 privileges and immunities as were possessed by 1) 483 Assembly	 the decision of the Supreme Court in the Colony was reversed and it was held that the relevant Statute and the Act gave to the Legislative Assembly the same powers and privileges as the House of Commons had at the time of the passing of the said Acts. Having held that the Legislative Assembly had the same powers as the House of Commons	 the Privy Council proceeded to consider the nature and extent of these powers. Lord Cairns who delivered the judgment of the Privy Council observed that "[b]eyond all doubt	 one of the privileges and one of the most important privileges of the House of Commons is the privilege of committing for contempt; and incidental to that privilege	 it has . been 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 transferred(1). In other words	 this decision shows that the Privy Council took the view that the power to issue a general warrant and to insist upon the conclusive character of the said warrant it itself (1) 	 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 Thomas(1). In that case	 the question about the extent of the power conferred on the Nova Scotia House of Assembly fell to be considered	 and it was held by the Privy Council that the said Assembly had statutory power to adjudicate that wilful disobedience to its order to attend in reference to a libel reflecting on its members is a breach of privilege and contempt	 and to punish that breach by imprisonment. For our present purpose	 it is not necessary to refer to the relevant provisions of the statute on which the argument proceeded	 or the facts which gave rise to the action. It is only one observation made by Lord Halsbury which must be quoted. Said Lord Halsbury in that case : "The authorities summed up in Burdett vs Abbot(1)	 and followed in the Case of The Sheriff of Middlesex(1)	 establish beyond all possibility of controversy the right of the House of Commons of the United Kingdom to protect itself against insult and violence by its own process without appealing to the ordinary courts of law and without having its process interfered with by those courts." (4 ) It is the last part of this observation which lends some support to Mr. Seervai 's case. All that we need say about this observation is that it purports to be based on two earlier decisions which we have already examined	 and that it is not easily reconcilable with the reservations made by some of the Judges who had occasion to deal with this point in regard to their jurisdiction to examine the validity of the imprisonment of a petitioner where it appeared that the warrant issued by the House (1) (2) ; (3) 113 E.R.419. (4) [18961 L.R.A.C. 600	 609. 485 of Commons appeared on a return made by the House to be palpably frivolous or based on extravagant or fantastic reasons. The last decision on which Mr. Seervai relies is the case of The Queen vs Richards(1). 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 194(3) of our Constitution. Section 49 reads thus : "The powers	 privileges	 and immunities of the Senate and of the House of Representatives	 and of the members and the committees of each House	 shall be such as are declared by the Parliament	 and until declared shall be those of the Commons House of Parliament of the United Kingdom	 and of its members and committees	 at the establishment of the Commonwealth. " One of the points which fell to be considered was what was the nature and extent of the powers	 privileges and immunities conferred by 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 Glass(2). In fact	 fact	 Dixon C.J. has expressly referred to this "aspect of the matter. Naturally	 he has relied on the observations made by Lord Cairns in Hugh Glass and has followed the said observations in deciding the point raised before the High Court 	of Australia. That is the basis which was adopted by Dixon C.J. in dealing with the question. Having adopted this approach	 the learned Chief Justice thought it unnecessary to discuss at length the situation in England	 because what the situation in England was	 had been conclusively determined for the guidance of the Australian courts by the observations made by Lord Cairns in Hugh Glass(1). Even so	 he has observed that the question about the powers	 privileges and immunities of the House of Commons is one which the courts of law in England have treated as a matter for their decision	 though he has added that "the courts in England arrived at that position after a long course of judicial decision not unaccompanied by political controversy. The law in England was finally settled about 1840. " This observation obviously refers to the Case of the Sheriff of Middlesex("). To quote the words of the learned Chief Justice : "Stated shortly	 it is this : it is for the courts to judge of the existence in either House of Parliament of a privilege	 but	 given an undoubted privilege	 it is for the House to judge of the occasion and of the manner 	of its exercise. The judgment of the House is expressed by its resolution and by the warrant of the Speaker. If the warrant specifies the ground of the commitment the court may	 it would seem	 determine whether it is sufficient in law as a ground to amount to a breach of privilege	 but if the warrant is upon its (1)15 E.R. 784:(1864)1 Moo P.C.(N.S.)487. (2)[1869 71] 3L.R.P.C.560. (3) ; 487 face consistent with a breach of an acknowledged privilege it is conclusive and it is no objection that the breach of privilege is stated in general terms. This statement of law appears to be in accordance with cases by which it was finally established	 namely	 the Case of the Sheriff of Middlesex"(1). Thus	 even according to Chief Justice Dixon	 the existence and extent of privilege is a justiciable matter and can be adjudicated upon by the High Court. If the warrant is a speaking warrant	 the Court can determine whether it is sufficient in law as a ground to amount to breach of privilege	 though	 if the warrant is unspeaking or general	 the court cannot go behind it. In our opinion	 it would not be reasonable to treat this decision as supporting the claim made by the House that the conclusive character of its general warrant is a part and parcel of its privilege. The learned Chief Justice in fact did not consider the question on the merits for himself. He felt that he was bound by the observations made by Lord Cairns and he has merely purported to state what in his opinion is the effect of the decision in the Case of the Sheriff of Middlesex(1). Besides	 there is another aspect of this matter which cannot be ignored. The learned C.J. Dixon was dealing with the construction of section 49 of the Australian Constitution	 and as GwyerC.J. has observed in In re The Central Provinces and Berar Act No. XIV of 1938 (2)	 "there are few subjects on which the decisions of other Courts require to be treated with greater caution than that of federal and provincial powers	 for in the last analysis the decision must depend upon the words of the Constitution which the Court is interpreting; and since no two Constitutions are in identical terms	 it is extremely unsafe to assume that a decision on one of them can be applied without qualification to another. " The learned Chief Justice has significantly added that this may be so even where the words or expressions used are the same in both cases for a word or a phrase may take a colour from its context and bear different senses accordingly (p. 38). These observations are particularly relevant and appropriate in the context of the point which we are discussing. Though the words used in section 49 of the Australian Constitution are substantially similar to the words used in article 194(3)	 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. C.I./65 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 194(3) has already been examined by us	 it may be that there are some provisions in the Australian Constitution which may take in some of the rights which are safeguarded under 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 194(3) 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 194(3). These distinctive features of the relevant and material provisions of our Constitution would make it necessary to bear in mind the words of caution and warning which Gwyer C.J.	 uttered as early as 1938. Therefore	 we think that it would not be safe or reasonable to rely too much on the observations made by Dixon C.J. in dealing with the question of privileges in the case of Richards(1). Before we part with this topic	 however	 we may incidentally point out that the recent observations made by Lord Parker C.J. in In re Hunt(1) indicate that even in regard to a commitment for contempt by the superior court of record	 the court exercising its jurisdiction over a petition filed for habeas corpus would be 	competent to consider the legality of the said contempt notwithstanding the fact that the warrant of commitment is general or unspeaking. Dealing with the arguments urged by Kenneth Douglas Hunt who had been committed for contempt by WynnParry J.	 Parker C.J. observed : "It may be that the true view is	 and I think the cases support it	 that though this Court always has power to inquire into the legality of the committal	 it will not inquire whether the power has been properly exercised." He	 however	 added that in the case before him	 he was quite satisfied that the application ought to fail on the merits. These observations tend to show that in exercising habeas corpus jurisdiction	 a court at Westminster has jurisdiction to inquire into the legality of the commitment even though the commitment has been ordered (1) 92 C.L.R.157. (2) 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 194(3) ? Let us first take the basis relating to the status of the House of Commons as a Superior Court of Record. Can the House claim such a status by any legal fiction introduced by article 194(3) ? In our opinion	 the answer to this question cannot be in the affirmative. The previous legislative history in this matter does not support the idea that our State Legislatures were superior Courts of Record under the Constitution Act of 1935. Section 28 of the said Act which dealt with the privileges of the Federal Legislature is relevant on this point. section 28(1) corresponds to article 194(3) of the present Constitution. Section 28(2) provides that in other respects	 the privileges of members of the Chambers shall be such as may from time to time be defined by Act of the Federal Legislature and	 until so defined	 shall be such as were immediately before the establishment of the Federation enjoyed by members of the Indian Legislature. it is not disputed that the members of the Indian Legislature could not have claimed the status of being members of a superior Court of Record prior to the Act of 1935. Section 28(3) prescribes that nothing in any existing Indian Act	 and	 notwithstanding anything in the foregoing provisions of this section	 nothing in this Act	 shall be construed as conferring	 or empowering the Federal Legislature to confer	 on either Chamber or on both Chambers sitting together	 or on any committee or officer of the Legislature	 the status of a Court	 or any punitive or disciplinary powers other than a power to remove or exclude persons infringing the rules or standing orders	 or otherwise behaving in a disorderly manner. Section 28 (4) is also relevant for our purpose. It provides that provision may be made by an Act of the Federal Legislature for the 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 194(3) insofar as the Provincial Legislatures are concerned. Considered in the light of this background	 it is difficult to accept the argument that the result of the provisions contained in the latter part of article 194(3) was intended to be to confer on the State Legislatures in India the status of a superior Court of Record. 491 In this connection	 it is essential to bear in mind the fact that the status of a superior Court of Record which was accorded to the House of Commons	 is based on historical facts to which we have already referred. It is a fact of English history that the parliament was discharging judicial functions in its early career. It is a fact of both historical and constitutional history in England that the House of Lords still continues to be the highest Court of law in the country. It is a fact of constitutional history even today that both the Houses possess powers of impeachment and attainder. It is obvious	 we think	 that these historical facts cannot be introduced in India by any legal fiction. Appropriate legislative provisions do occasionally introduce legal fictions	 but there is a limit to the power of law to introduce such fictions. Law can introduce fictions as to legal rights and obligations and as to the retrospective operation of provisions made in that behalf; but legal fiction can hardly introduce historical facts from one country to another. Besides	 in regard to the status of the superior Court of Record which has been accorded to the House of Commons	 there is another part of English history which it is necessary to remember. The House of Commons had to fight for its existence against the King and the House of Lords	 and the Judicature was regarded by the House of Commons as a creature of the King and the Judicature was obviously subordinate to the House of Lords which was the main opponent of the House of Commons. This led to fierce struggle between the House of Commons on the one hand	 and the King and the House of Lords on the other. There is no such historical background in India and there can be no historical justification for the basis on which the House of Commons struggled to deny the jurisdiction of the Court; that is another aspect of the matter which is relevant in considering the question as to whether the House in the present case can claim the status of a superior Court of Record. There is no doubt that the House has the power to punish for contempt committed outside its chamber	 and from that point of view it may claim one of the rights possessed by a Court of Record. A Court of Record	 according to Jowitt 's Dictionary of English Law	 is a court whereof the acts and judicial proceedings are enrolled for a perpetual memory and testimony	 and which has power to fine and imprison for contempt of its authority. The House	 and indeed all the Legislative Assemblies in India never discharged any judicial functions and their historical and constitutional background does not support the claim that they can be 492 regarded as Courts of Record in any sense. If that be so	 the very basis on which the English Courts agreed to treat a general warrant issued by the House of Commons on the footing that it was a warrant issued by a superior Court of Record	 is absent in the present case	 and so	 it would be unreasonable to contend that the relevant power to claim a conclusive character for the general warrant which the House of Commons	 by agreement	 is deemed to possess	 is vested in the House. On this view of the matter	 the claim made by the House must be rejected. Assuming	 however	 that the right claimed by the House can be treated as an integral part of the privileges of the House of Commons	 the question to consider would be whether such a right has been conferred on the House by the latter part of article 194(3). On this alternative hypothesis	 it is necessary to consider whether this part of the privilege is consistent with the material provisions of our Constitution. We have already referred to Articles 32 and 226. Let us take 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 194(3). 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 194(3) 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 208(1). 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 194(3) in respect of this particular power is again decisively against the contention raised by the House. If the power of the High Courts under 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 S.C.R. 806. 494 High Courts or this Court to invoke their jurisdiction even in	 cases where his fundamental rights have been violated. The existence of judicial power in that behalf must necessarily and inevitably postulate the existence of a right in the citizen to move the Court in that behalf; otherwise the power conferred on the High Courts and this Court would be rendered virtually meaningless. Let it not be forgotten that the judicial power conferred on the High Courts and this Court is meant for the protection of the citizens ' fundamental rights	 and so	 in the existence of the said judicial power itself is necessarily involved the right of the citizen. to appeal to the said power in a proper case. In In re Parliamentary Privilege Act	 1770(1)	 the Privy Council was asked to consider whether the House of Commons would be acting contrary to the Parliamentary Privilege Act	 1770	 if it treated the issue of a writ against a Member of Parliament in respect of a speech or proceeding by him in Parliament as a breach of its privileges. The said question had given rise to some doubt	 and so	 it was referred to the Privy Council for its opinion. The opinion expressed by the Privy Council was in favour of Parliament. Confining its answer to the said limited question	 the Privy Council took the precaution of adding that "they express no opinion whether the proceedings referred to in the introductory paragraph were 'a proceeding in Parliament	 a question not discussed before them	 nor on the question whether the mere is sue of a writ would in any circumstances be a breach of privilege." "In taking this course"	 said Viscount Simonds who spoke for the Privy Council	 "they have been mindful of the inalienable right of Her Majesty 's subjects to have recourse to her courts of law for the remedy of their wrongs and would not prejudice the hearing of any cause in which a plaintiff sought relief. " The inalienable right to which Viscount Simonds referred is implicit in the provisions of 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 194(3)	 so the rights of the citizens to move the Judicature and the rights of the advocates to assist that process must remain uncontrolled by Article 194(3). That is one integrated scheme for enforcing the fundamental rights and for sustaining the rule of law in this country. Therefore	 our conclusion is that the particular right which the House claims to be an integral part of its power or privilege is inconsistent with the material provisions of the Constitution and cannot be deemed to have been included under the latter part of article 194(3). 496 In this connection	 we ought to add that there is no substance in the grievance made by Mr. Seervai that Keshav Singh acted illegally in impleading the House to the habeas corpus petition filed by him before the Lucknow Bench. In our opinion	 it cannot be said that the House was improperly joined by Keshav Singh	 because it was open to him to join the House on the ground that his commitment was based on the order passed by the House	 and in that sense the House was responsible for	 and had control over	 his commitment (vide The King vs The Earl of Crewe	 Ex parte Sekgome(1) and The King vs Secretary of State for Home Affairs	 Ex parte O 'brien(2). Besides	 the fact that Keshav Singh joined the House to his petition	 can have no relevance or materiality in determining the main question of the power of the House to take action against the Judges	 the Advocate	 and the 'party for their alleged contempt. As we have indicated at the outset of this opinion	 the crux of the matter is the	 construction of the latter part of article 194(3)	 and in the light of the assistance in which we must derive from the other relevant and material provisions of the Constitution	 it is necessary to hold that the particular power claimed by the House that its general warrants must be held to be conclusive	 cannot be deemed to be the subject matter of the latter part of article 194(3). In this connection	 we may incidentally observe that it is somewhat doubtful whether the power to issue a general unspeaking warrant claimed by the House is consistent with section 554(2)(b) 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 function(1). Nobody has ever suggested that the American Congress has not been functioning effectively because it has not been armed with the particular power claimed by the House before us. In India	 there are several State Legislatures in addition to the Houses of Parliament. If the power claimed by the House before us is conceded	 it is not difficult to imagine that its exercise may lead to anomalous situations. If by virtue of the absolute freedom of speech conferred on the Members of the Legislatures	 a Member of one Legislature makes a speech in his legislative chamber which another legislative chamber regards as amounting to its contempt	 what would be the position ? The latter legislative chamber can issue a general warrant and punish the Member alleged to be in contempt	 and a free exercise of such power may lead to very embarrassing situations. That is one reason why the Constitution makers thought it necessary that the Legislatures should in due course enact laws in respect of their powers	 privileges and immunities	 because they knew that when such laws are made	 they would be subject to the fundamental rights and would be open to examination by the courts in India. Pending the making of such laws	 powers	 privileges and immunities were conferred by the latter part of article 194(3). As we have already (1) Wills	 constitutional Law	 p. 145. 498 emphasised	 the construction of this part of the article is within the jurisdiction of this Court	 and in construing this part	 we have to bear in mind the other relevant and material provisions of the Constitution. Mr. Seervai no doubt invited our attention to the fact that the Committees of Privileges of the Lok Sabha and the Council of States have adopted a Report on May 22	 1954 with a view to avoid any embarrassing or anomalous situations resulting from the exercise of the legislative powers and privileges against the members of the respective bodies	 and we were told that similar resolutions have been adopted by almost all the Legislatures in India. But these are matters of agreement	 not matters of law	 and it is not difficult to imagine that if the same political party is not in power in all the States	 these agreements themselves may not prove to be absolutely effective. Apart from his aspect of the matter	 in construing the relevant clause of article 194(3)	 these agreements can play no significant part. In the course of his arguments Mr. Seervai laid considerable emphasis on the fact that in habeas corpus proceedings	 the High Court had no jurisdiction to grant interim bail. It may be conceded that in England it appears to be recognised that in regard to habeas corpus proceedings commenced against orders of commitment passed by the House of Commons on the ground of 	contempt	 bail is not granted by courts. As a matter of course	 during the last century and more in such habeas corpus proceedings returns are made according to law by the House of Commons	 but "the general rule is that the parties who stand committed for contempt cannot be admitted to bail. " But it is difficult to accept the argument that in India the position is exactly the same in this matter. If 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 execution(2). That being so	 the argument based on the relevant provisions of the Criminal Procedure (1) [1952] S.C.R. 28. (2) Maxwell on Interpretation of Statutes	 11th ed.	 p. 350. 499 Code and the decision of the Privy Council in Lala Jairam Das and Others vs King Emperor(1)	 is of no assistance. We ought to make it clear that we are dealing with the ques tion of jurisdiction and are not concerned with 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 P.m. on March 19	 1964	 both parties. appeared by their respective Advocates and agreed that the application should be taken up at 3 P.m. the same day	 and yet the House which was impleaded to the writ petition and the other respondents to it for whom Mr. Kapur had appeared at the earlier stage	 were absent at that time. That is how the Court directed that notice on the petition should be issued to the respondents and released the petitioner on bail subject to the terms and conditions which have already been mentioned; and it is this latter order of bail which has led to the subsequent developments. In other words	 before taking the precipitate action of issuing warrants against the Judges of the Lucknow Bench	 the House did not conform to the uniform practice which the House of Commons has followed for more than a century past and did not instruct its lawyer either to file a return or to ask for time to do so	 and to request that the Court should stay its hands until the return was filed. It is not disputed that whenever commitment orders passed by the House of Commons are challenged in England before (1) 72 I.A. 120. (2) Halsbury 's Laws of England	 vol. 9	 p. 349. 500 the Courts at Westminster	 the House invariably makes a return and if the warrant issued by it is general and unspeaking	 it is so stated in the return and the warrant is produced. If this course had been adopted in the present proceedings	 it could have been said that the House in exercising its powers and privileges	 conformed to the pattern which	 by convention	 the House of Commons has invariably followed in England during the last century and more; but that was not done; and as soon as the House knew that an order granting bail had been passed	 it proceeded to consider whether the Judges themselves were not in contempt. On these narrow facts	 it would be possible to take the view that no question of contempt committed by the Judges arises. In view of the fact that Mr. Kapur had appeared before the Court at 2 P.m. on behalf of all the respondents and had agreed that the matter should be taken up at 3 P.m.	 it was his duty to have appeared at 3 P.m. and to have either filed a return or to have asked for time to do so on behalf of the House. If the House did not instruct Mr. Kapur to take this step and the Court had no knowledge as to why Mr. Kapur did not appear	 it is hardly fair to blame the Court for having proceeded to issue notice on the petition and granted bail to the petitioner. In these proceedings it is not necessary for us to consider what happened between Mr. Kapur and the House and why Mr. Kapur did not appear at 3 P.m. to represent the House and the other respondents. The failure of Mr. Kapur to appear before the Court at 3 P.m. has introduced an unfortunate element in the proceedings before the Court and is partly responsible for the order passed by the Court. One fact is clear	 and that is that at the time when the Court issued notice and released the petitioner on bail	 it had no knowledge that the warrant under which the petitioner had been sentenced was a general warrant and no suggestion was made to the Court that in the case of such a warrant the Court had no authority to make any order of bail. This fact cannot be ignored in dealing with the case of the House that the Judges committed contempt in releasing the petitioner on bail. But we ought to make it clear that we do not propose to base our answers on this narrow view of the matter	 because questions 3 and 5 are broad enough and they need answers on a correspondingly broad basis. Besides	 the material questions arising from this broader aspect have been fully argued before us	 and it is plain that in making the present Reference	 the President desires that we should render our answers to all the questions and not 	exclude from our consideration any relevant aspects on the ground 501 that these aspects would not strictly arise on the special facts which have happened so far in the present proceedings. In conclusion		 we ought to add that throughout our 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 Trinidad(1). Said Lord Atkin "Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though out spoken comments of ordinary men. " We ought never to forget that the power to punish for contempt large as it is	 must always be exercised cautiously	 wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the court	 but may sometimes affect it adversely. Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments	 the fearlessness	 fairness and objectivity of their approach	 and by the restraint	 dignity and decorum which they observe in their judicial conduct. We venture to think that what is true of the Judicature is equally true of the Legislatures. Having thus discussed all the relevant points argued before us and recorded our conclusions on them	 we are now in a position (1) A.I.R. 1936 P.C. 141. 502 to render our answers to the five questions referred to us by the President. Our answers are: (1) On the facts and circumstances of the it was competent for the Lucknow Bench of the High Court of Uttar Pradesh	 consisting of N. U. Beg and G. D. Sahgal JJ.	 to entertain and deal with the petition of Keshav Singh challenging the legality of the sentence of imprisonment imposed upon him by the Legislative Assembly of Uttar Pradesh for its contempt and for infringement of its privileges and to pass orders releasing Keshav Singh on bail pending the disposal of his said petition. (2) On the facts and circumstances of the case	 Keshav Singh by causing the petition to be presented on his behalf to the High Court of Uttar Pradesh as aforesaid	 Mr. B. Solomon Advocate	 by presenting the said petition	 and the said two Hon 'ble Judges by entertaining and dealing with the said petition and 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 war.rants had been issued. That may have been because the warrants were issued after the petition had been presented	 or the issue of the warrant was not known to the petitioner. This petition was heard by all the Judges of the High Court excepting Sahgal and Beg JJ. and they passed an order on the same day directing that the implementation of the resolution be stayed. Similar petitions were presented by B. Solomon and Beg J. and also by other parties	 including the Avadh Bar Association	 and on some of them similar orders	 as on the petition of Sahgal J.	 appear to have been made. On March 25	 1964	 the Assembly recorded an observation that by its resolution of March 21	 1964 it was not its intention to decide that Beg J.	 Sahgal J.	 B. Solomon and Keshav Singh had committed contempt of the House without giving them a hearing	 but it had required their presence before the House for giving them an opportunity to explain their position and it resolved that the question may be decided after giving an opportunity to the above named persons according to the rules to explain their conduct. Pursuant to this resolution	 notices were issued on March 26	 1964 to Beg J.	 Sahgal J. and B. Solomon informing them that "they may appear before the Committee at 10 A.M. on April 6	 1964. . . to make their submissions". The warrants issued on March 23	 1964	 which had never been executed	 were withdrawn in view of these notices. The present reference was made on March 26. 1964 and thereupon the Assembly withdrew the notices of March 26	 1964 stating that in view of the reference the two Judges and Solomon and Keshav Singh need not appear before the Privilege Committee as required. 506 These 'facts are set out in the recitals contained in the order of reference. There is however one dispute as to the statement of facts in the recitals. It is there stated that the Assembly resolved on March 21	 1964 that the two Judges	 Solomon and Keshav Singh "committed	 by their actions aforesaid	 contempt of the House. " The words "actions aforesaid" referred to the presentation of the petition of Keshav Singh of March 19	 1964 and the order made thereon. It is pointed out on behalf of the Assembly that the resolution does not say what constituted the contempt. This contention is correct. The main question 'in this reference is whether the Assembly has. the privilege of committing a person to prison for contempt by general warrant	 that is	 without stating the facts	 which constituted the contempt	 and if it does so	 have the courts of law the power to examine the legality of such a committal '? In other words if there is such a privilege	 does it take precedence over the fundamental rights of the detained citizen. It is said on behalf of the Assembly that it has such a privilege and the interference by the court in the present case was without jurisdiction. The question is then of the privilege of the Assembly	 for if it does 	lot possess the necessary privilege	 it is not disputed	 that what the High Court has done in this case would for the present purposes be unexceptionable. First then as to the privileges of the Assembly. The Assembly relies for purpose on cl. (3) of article 194 of the Constitution. The first three clauses of that article may at this stage be set out. article 194(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature	 there shall be freedom of speech in + 'he Legislature of every State. (2) No member of the Legislature of a State shall be liable to any proceedings in any Court in respect of anything said or any vote given by him in the Legislature or any committee thereof	 and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report	 paper	 votes or proceedings. (3) In other respects	 the powers	 privileges and immunities of a House of the Legislature of a State	 and of the members and the committees of a House of such Legislature	 shall be such as may from time to time be defined by the Legislature by law	 and	 until 507 so defined	 shall be those of the House of Commons of the Parliament of the United Kingdom	 and of its members and committees	 at the commencement of this Constitution. Article 105 contains identical provisions in relation to the Central Legislature. It is not in dispute that the Uttar Pradesh Legislature has not made any law defining the powers	 privileges and immunities of its two Houses. The Assembly	 therefore	 claims that :It has those privileges which the House of Commons in England had on January 25	 1950. I would like at this stage to say a few general words about "powers	 privileges and immunities" of the House of Commons or its members. First I wish to note that it is not necessary for our purposes to make a distinction between "privileges"	 " powers" and "immunities". They are no doubt different in the matter of their respective contents but perhaps in no otherwise. Thus the right of the House to have absolute control of its internal proceedings may be considered as its privilege	 its right to punish one for contempt may be more properly described as its power	 while the right that no member shall be liable for anything said in the House may be really an immunity. All these rights are however created by one law and judged by the same standard. I shall for the sake of convenience	 describe them all as "privileges". Next I note that this case is concerned with privileges of the House of Commons alone	 and not with those of its members and its committees. I stress however that the privileges of the latter two are in no respect different from those of the former except as to their content	;. The nature of the privileges of the House of Commons can be best discussed by referring to May 's Parliamentary Practice	 which is an acknowledged work of authority on matters concern in the English Parliament. It may help to observe here that for a long time now there is no dispute as to the nature of the recognised privileges of the Commons. I start to explain the nature of the privileges by pointing out the distinction between them and the functions of the House. Thus the financial powers of the House of Commons to initiate taxation legislation is often described as its privilege. This	 however	 is not the kind of privilege of the House of Commons to which cl. (3) of 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: "[C]ertain fundamental 508 rights of each House which are generally accepted as necessary for the exercise of its constitutional functions. "(1) A point I would like to stress now is that it is of the essence of the nature of the privileges that they are ancillary to the main functions of the House of Commons. Another thing which I wish to observe at this stage is that "[s]one privileges rest solely upon the law and custom of Parliament	 while others have been defined by statute. Upon these grounds alone all privileges whatever are founded" (2). In this case we shall be concerned with the former kind of privilege only. The point to note is that this variety of privilege derives its authority from the law and custom of Parliament. This law has been given the name of Lex Parliamenti. It owes its origin to the custom of Parliament. It is	 therefore	 different from the common law of England which	 though also based on custom	 is based on a separate set of custom	 namely	 that which prevails in the rest of the realm. This difference in the origin had given rise to serious disputes between Parliament and the courts of law but they have been settled there for many years now and except a dispute as to theory	 the recurrence of any practical dispute is not considered a possibility. So Lord Coleridge C.J. said in Bradlaugh 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 194(3). It follows that when a question arises in this country under that article as to whether the House of Commons possessed a particular privilege at the commencement of the Constitution	 that question must be settled	 and settled only	 by the courts of law. There is no scope of the dreaded "dualism" appearing here	 that is	 courts entering into a controversy with a House of a Legislature as to what its privileges are. I think what I have said should suffice to explain the nature of the privileges for the purposes of the present reference and I will now proceed to discuss the privileges of the Assembly that are in question in this case	 using that word in the sense of rights ancillary to the main function of the legislature. The privilege which I take up first is the power to commit for contempt. It is not disputed that the House of Commons has this power. All the decided cases and text books speak of such power. "The power of commitment is truly described as the ' 'keystone of parliamentary privilege '. without it the privileges of Parliament could not have become self subsistent	 but	 if they had not lapsed	 would have survived on sufferance. "(1) In Burdett V. Abbott	 (2) Lord Ellenborough C.J. observed	 "Could it be expected. . that the Speaker with his mace should be under the necessity of going before a grand jury to prefer a bill of indictment for the insult offered to the House ? They certainly must have the power of self vindication and self protection in their own hands. . The possession of this power by the House of Commons is	 therefore	 undoubted. It would help to appreciate the nature of the power to commit for contempt to compare it with breach of privlege which itself may amount to contempt. Thus the publication of the proceedings of the House of Commons against its orders is a breach of its privilege and amounts to contempt. All contempts	 however	 are not breaches of privilege. Offences against the dignity or authority of the House though called "breaches of privilege" are more properly distinguished as contempts. Committing to prison for contempts is itself a privilege of the House of Commons whether the contempt is committed by a direct breach of its privilege or by offending its (1) May	 P. 90. (2) ; 	 559. 510 dignity or authority.(1) "The functions	 privileges and disciplinary powers of a legislative body are thus closely connected. The privileges are the necessary complement of the functions	 and the disciplinary powers of the privileges. "(1) I may add that it is not in dispute that power to commit for contempt may be exercised not only against a member of the House but against an outsider as well. (3) It was contended on behalf of the High Court that the power of the House of Commons to commit for contempt was not 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 194(3) could not be read as conferring judicial powers possessed by the House of Commons in England as one of its privileges on a legislative body and so the Assembly did not possess it. This contention of the High Court is	 in my view	 completely without foundation; both principle and authority are against it. This Court has on earlier occasions observed that the principle of separation of powers is not an essential part of our Constitution : see for example In re. Delhi Laws Act(1). Again the Constitution is of course supreme and even if it was based on the principle of separation of powers	 there was nothing to prevent the Constitution makers	 if they so liked	 from conferring judicial powers on a legislative body. If they did so	 it could not be said that the provision concerning it was bad as our Constitution was based on a division of powers. Such a contention would of course be absurd. The only question	 therefore	 is whether our Constitution makers have conferred the power to commit on the Legislatures. The question is not whether they had the power to do so	 for there was no limit to their powers. What the Constitution makers had done can	 however	 be ascertained only from the words used by them in the Constitution that they made. If those words are plain	 effect must be given to them irrespective of whether our Constitution is based on a division of power or not. That takes me to the language used in cl. (3) of 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 Sinha(1). I will have to refer to this case in some detail later. There Das C.J.	 delivered the majority judgment of the constitution bench consisting of five Judges and Subba Rao J. delivered his own dissenting opinion. Das C.J.	 proceeded on the basis that the Houses of a State Legislature had the power to commit for contempt. It was	 therefore	 held that there was nothing in our Constitution to prevent a legislative body from possessing judicial powers. On this point Subba Rao J. expressed no dissent. Further	 the Judicial Committee in England has in two cases held that under provisions	 substantially similar to those of article 194(3) of our Constitution	 the power of the House of Commons to commit for contempt had been conferred on certain legislative bodies of some of the British Colonies. In the Speaker of the Legislative Assembly of Victoria vs Glass(1) it was held that a statute stating. "The Legislative Council of Victoria. shall hold	 enjoy and exercise such and the like privileges	 immunities and powers as. were held	 enjoyed and exercised by the Commons House of Parliament of Great Britain and Ireland" conferred on the Houses of the Legislature of the Australian Colony of Victoria the judicial power to commit for contempt. In Queen vs Richards(1) 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 C.J. "This is not the occasion to discuss the historical grounds upon which these powers and privileges attached to the House of Commons. It is sufficient to say (1) [19591 Supp. 1 S.C.R. 806. (2) (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 case(1) an application was made to the Judicial Committee for leave to appeal from the judgment of Dixon C.J. but such leave was refused	 Viscount Simonds observing that the judgment of the Australian High Court "is unimpeachable": Queen vs Richards(1). Reference may also be made to Fielding vs Thomas(1) for the interpretation of a similar provision conferring the privileges of the Commons on the Legislature of Nova Scotia in Canada. It would	 therefore	 appear that article 194(3) conferred on the Assembly the power to commit for contempt and it possessed that power. The next question is as to the privilege to commit by a general warrant. There is no dispute in England that if the House of Commons commits by a general warrant without stating the facts which constitute the contempt	 then the courts will not review that order("). It was however said on behalf of the High Court that this power of the English House of Commons was not one of its privileges but it was possessed by that House because it was a superior court and	 therefore	 that power	 not being a privilege	 has not been conferred on the State Legislatures by article 194(3) of our Constitution. It is not claimed by the Assembly that it is a superior court and has	 therefore	 a power to commit for contempt by a general warrant. I would find nothing to justify such a claim if it had been (1) ; 	 (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 Middlesex(1). In Halsbury 's Laws of England	 Vol. 28 p. 467	 it is stated that the Courts of law will not enquire into the reasons for which a person is adjudged guilty of contempt and committed by either House by a warrant which does not state the causes of his a. rest. This observation is made in dealing with the conflict between the House of Commons and the courts concerning the privileges of the former and obviously treats the power to issue a general warrant as a matter of the privilege of the House. Lastly	 in Dicey 's Constitutional Law (10th ed.) at p. 58 in the footnote it is stated. "Parliamentary privilege has from the nature of things never been the subject of precise legal definition. One or two points are worth notice as being clearly established. (1) Either House of Parliament may commit for contempt; and the courts will not go behind the committal and enquire into the facts constituting the alleged contempt provided that the cause of the contempt is not stated. " I thus find that writers of undoubted authority have treated this power to commit by a general warrant with the consequent deprivation of the court 's jurisdiction to adjudicate on the legality of the imprisonment	 as a matter of privilege of the House and not as a right possessed by it as a superior court. I now proceed to refer to recent decisions of the Judicial Committee which a also put the right of the House. of Commons to com (1) ; 516 mit by a general warrant on the ground of privilege. The first case which I will consider is Glass 's(1) case. There the Legislative Assembly of the Colony of Victoria by a general warrant committed Glass to prison for contempt and the matter was brought before the court on a habeas corpus petition. I have earlier stated that under certain statutes the Assembly claimed the Same privileges which the House of Commons possessed. The Supreme Court of Victoria held in favour of Glass. The matter was then taken to the Judicial Committee and	it appears to have been argued there that "the privilege is the privilege of committing for contempt merely; that the judging of contempt without appeal	 and the power of committing by a general Warrant	 are mere incidents or accidents applicable to this Country	 and not transferred to the Colony. " The words "this Country" referred to England. Lord Cairns rejected this argument with the following observations: "The ingredients of judging the contempt	 and committing by a general Warrant	 are perhaps the most important ingredients in the privileges which the House of Commons in this Country possesses; and it would be strange indeed if	 under a power to transfer the whole of the privileges and powers of the House of Commons	 that which would 	only be a part	 and a comparatively insignificant part	 of this privilege and power were transferred." (p. 573). He also said	 (p. 572) "Beyond all doubt	 one of the privileges and one of the most important privileges of the House of Commons is the privilege of committing for contempt and incidental to that privilege	 it has	 as has already been stated	 been well established in this Country that the House of Commons have the right to be the .judges themselves of what is contempt	 and to commit for that contempt by a Warrant	 stating that the commitment is for contempt of the House generally	 without specifying what the character of the contempt is. It would	 therefore	 almost of necessity follow	 that the Legislature of the Colony having been permitted to carry over to the Colony the privileges	 immunities	 and powers of the House of Commons	 and having in terms carried over all the privileges and powers exercised by the House of Commons at the date of the Statute	 there was carried over to the Legislative Assembly of the Colony the privilege or power of the House of Commons connected with contempt the privilege or power	 namely	 of committing for contempt	 of judging itself of what is contempt	 and of committing for contempt by a Warrant stating generally that a contempt had taken place. " In Richard 's case (2) the power to commit by a general warrant was considered as a privilege of the House and the observations of Lord Cairns (1) ; (2) ; 517 in Glass 's(1) case were cited in support of that view. As I have already said this view was upheld by the Judicial Committee : Queen vs Richard (2). It is of some interest to note that Dixon C.J. was of the opinion	 as I have earlier shown	 that the power to commit was scientifically more properly a judicial power but nonetheless he found that it was a privilege technically so called of the House of Commons and so transferred to the Australian Houses by 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 Abbot(4).In this case	 in the first court judg (1) ; 	 (2) ; (3) (4) ; 518 ments were delivered by Ellenborough C.J. and Baylay J. With regard to this case	 Anson in his book at p. 189 says	 "It is noticeable that in the case of Burdett 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 C.J. rests his decision on the broader ground of expediency	 and the necessity of such a power for the maintenance of the dignity of the House. " Ellenborough C.J.	 therefore	 according to Anson	 clearly does not take the view that the House of Commons is a court and all that 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 L.C. referred the following question to the Judges for their advice	 16 Whether	 if the Court of Common Pleas	 having adjudged an act to be a contempt of Court	 had committed for the contempt under a warrant	 stating such adjudication generally without the particular circumstances	 and the matter were brought before the Court of King 's Bench	 by return to a writ of habeas cot pus. the return setting forth the warrant	 stating such adjudication of contempt generally; whether in that case the Court of King 's Bench would discharge the prisoner	 because the particular facts and circumstances	 out of which the contempt arose	 were not set forth in the warrant": Burdett vs Abbot(1). The Judges answered the question in the negative. Upon that Lord Eldon delivered his judgment with which the other members of the Court agreed	 stating that the House of Commons had the power to commit by a general warrant. I am unable to hold that this case shows that Lord Eldon came to that conclusion because the House of Commons was a superior court. It seems to me that Lord Eldon thought that the House of Commons should be treated the same way as one superior court treated another and wanted to find out how the courts treated each other. I shall later show that this is the view which has been taken of Lord Eldon 's decision in other cases. But I will now mention that if Lord Eldon had held that the House of Commons was a court	 a constitutional lawyer of Anson 's eminence would not have put the matter in the way that I have just read from his work. Then I come to the case of Stockdale vs Hansard(2). That case was heard by Lord Denman C.J.	 Littledale J.	 Patteson J. and Coleridge J. Lord Denman said	 (p. 1168)	 (1) ; (2)112 E. R. 11 12. 519 "Before I finally take leave of this head of the argument	 I will dispose of the notion that the House of Commons is a separate Court	 having exclusive jurisdiction over the subject matter	 on which	 for that reason	 its adjudication must be final. The argument placed the House herein on a level with the Spiritual Court and the Court of Admiralty. Adopting this analogy	 it appears to me to destroy the defence attempted to the present action . we are now enquiring whether the subject matter does fall within the jurisdiction of the House of Commons. It is contended that they can bring it within their jurisdiction by declaring it so. To this claim	 as arising from their privileges	 I have already stated my answer: it is perfectly clear that none of these Courts could give themselves jurisdiction by adjudging that they enjoy it." Clearly Lord Denman did not proceed on the basis that the Commons was a court. In fact he refers to the right "as arising from this privilege. " Then I find Littledale J. observing at p. 1174: "But this proceeding in the House of Commons does not arise on adverse claims; there are no proceedings in the Court; there is no Judge to decide between the litigant parties; but it is the House of Commons who are the only parties making a declaration of what they say belongs to them." So Littledale J. also did not consider the Commons as a court. Then came Patteson J. who stated at p. 1185	 "The House of Commons by itself is not the court of Parliament". Then again at p. 1185 he observes: "I deny that mere resolution of the House of Lords . would be binding upon the Courts of Law. . much less can a resolution of the House of Commons	 which is not a Court of Judicature for the decision of any question either of law or fact between litigant parties	 except in regard to the election of its members	 be binding upon the Courts of Law." Lastly I come to Coleridge J. He stated at p. 1196: "But it is said that this and all other Courts of Law are inferior in dignity to the House of Commons	 and that therefore it is impossible for us to review its decision. This argument appears to me founded on a misunderstanding of several particulars; first	 in what sense it is that this Court is inferior to the House of Commons; next in what sense the House is a Court at all. " S.C.I./65 8 520 Then at p. 1196 he stated : "In truth	 the House is not a Court of Law at all	 in the sense in which that term can alone be properly applied here; neither originally	 nor by appeal	 can it decide a matter in litigation between two parties; it has no means of doing so; it claims no such power; powers of enquiry and of accusation it has	 but it decides nothing judicially	 except where it is itself a party	 in the case of contempts. As to them no question of decree arises between Courts;" The observations of Coleridge J. are of special significance for the reasons hereafter to appear. It is obvious that neither Patteson J. nor Coleridge J. thought that the House of Commons was a Court or possessed any powers as such. Next in order of date is the case of the Sheriff of Middlesex(1). Lord Denman	 C.J. said at p. 426: "Representative bodies must necessarily vindicate their authority by means of their own; and those means lie in the process of committal for contempt. This applies not to the Houses of Parliament only	 but [as was observed in Burdett 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 Abbot(1). Denman C.J. did not think that Lord Eldon considered the House of Commons to be a Court for he himself found it unnecessary to discuss that question. The basis why he thought that the House of Commons must possess the right to commit by a general warrant was one of expediency and of confidence in a body of that stature. Coleridge J. observes at p. 427	 "It appears by precedents that the House of Commons have been long in the habit of shaping their warrants in that manner. Their right to adjudicate in this general form in cases of contempt is not founded on privilege	 but rests upon the same grounds on which this Court or the Court of Common Pleas might commit for a contempt without stating a cause in the commitment. Lord Eldon puts the case in this manner in Burdett 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 Hansard(2). As I have earlier shown	 he had there said that "in truth	 the House is not a Court of Law at all." Therefore when he said that the right to adjudicate in the general form was not founded on privilege	 whatever he might have meant	 he did not mean that it was founded on the House of Commons being a court. I think what he meant was that it was a right which the House of Commons had to possess in order to discharge its duties properly and	 therefore	 not something conceded to it as a sign of honour and respect. He might also have meant that the power was not something peculiar to the House as it was also possessed by the courts for the same reason of expediency	 and	 therefore	 it was not a privilege	 a term which has been used in the sense of something which the Parliament possessed and which exceeded those possessed by other bodies or individuals : Cf. May 42. Then comes the case of Howard vs Gossett(3). It will be enough to refer to the judgment of the Court of Exchequer Chamber in appeal which begins at p. 158. That judgment was delivered by Parke B. who observed at p. 171: (1) ; (2) 112 E.R. 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 Gossett(1) in which at p. 285 Stephen J. said	 "The House of Commons is not a Court of justice. " I am unable to see how these authorities can be said to hold that the power of the House of Commons to commit by a general warrant is possessed by it because it is a superior court. It was then said that even if the right to commit by a general warrant cannot be said to have been possessed by the House of 	Commons because it was superior court	 the observations in the cases on the subject	 including those to which I have already referred	 would establish that the right springs from some rule of comity of courts	 or of presumptive evidence or from an agreement between the courts of law and the House or lastly from some concession made by the former to the latter. I at once observe that these cases do not support the contention and no text book has taken the view they do or that the right is anything but a privilege. The contention further seems to me to be clearly fallacious and overlooks the basic nature of a privilege of the House of Commons. I have earlier stated the nature of the privilege but I will repeat it here. All privileges of the House of Commons are based on law. That law is known as lex Parliamenti. Hence privileges are matters which the House of Commons possesses as of right. In Stockdale vs Hansard(2) all the Judges held that the rights of the House of Commons are based on lex Parliamenti and that law like any other law	 is a law of the land which the courts are entitled to administer. Now if the privilege of committing by a general warrant	 is a right enforceable in law which belongs to the House of Commons	 it cannot be a matter controlled by the rule of comity of courts. Comity of courts is only a self imposed restraint. It is something which the court on its own chooses not to do. It is really not a rule of law at all. It creates no enforceable right. A 'right ' to the privilege cannot be based on it. Besides there is no question of (1) (1884) (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 194(3) of the Constitution. It is then said that even so that privilege of the Assembly can be exercised only subject to the fundamental rights of a citizen 	guaranteed by the Constitution. That takes me to Sharma 's case(1) As I read the judgment of the majority in that case	 they seem to me to hold that the privileges of the House of Commons which were conferred on the Houses of a State Legislature by article 194(3)	 take precedence over fundamental rights. The facts were these. A House of the Bihar Legislature which also had made no law defining its privileges under article 194(3)	 had directed certain parts of its proceedings to be expunged but notwithstanding this the petitioner published a full account of the proceedings in his paper including what was expunged. A notice was thereupon issued to him by the House to show cause why steps should not be taken against him for breach of privileges of the House. The privilege claimed in that case was the right to prohibit publication of its proceedings. The petitioner	 the Editor of the paper	 then filed a petition under 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 S.C.R. 806. 525 19 (1)(a). Subba Rao J.	 took a dissentient view and held that fundamental rights take precedence over privileges and also that the House did not possess the privilege of prohibiting the publication of its proceedings. With the latter question we are not concerned in the present case. In the result Sharma 's(1) petition was dismissed. On behalf of the High Court two points have been taken in regard to this case. It was first said that the majority judgment required reconsideration and then it was said that in any event	 that judgment only held that the privilege there claimed took precedence over the fundamental right of the freedom of speech and not that any other privilege took precedence over fundamental rights. I am unable to accept either of these contentions. On behalf of the Assembly it has been pointed out that in a reference under 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 Act(1) a question arose whether a decision of the Federal Court which under our Constitution has the same authority as our decisions	 was right. It may be argued that this case does not help	 for the question posed	 itself required the reconsideration of the earlier judgment. I do not propose to discuss this matter further	 for I do not feel So strongly in favour of the contention of the Assembly that I should differ from the view of my learned brothers on this question. I feel no doubt	 however	 that the majority judgment in Sharma 's case(1) was perfectly correct when it held that privileges were not subject to fundamental rights. I have earlier set out the first three clauses of 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. S.C.R. 806. (2) ; 526 principle of harmonious construction has to be applied for reconciling the two and article 194(3) being a special provision must take precedence over the fundamental right mentioned in article 19(1) (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 194(3)	 he nonetheless applied the rule of harmonious construction. He felt that since the legislature had a wide range of powers and privileges and those privileges can be exercised without infringing the fundamental rights	 the privilege should yield to the fundamental right. This construction	 he thought	 gave full effect to both the articles: (pp. 880 1). With great respect to the learned Judge	 I find it difficult to follow how this interpretation produced the result of both the articles having effect and thus achieving a harmonious construction. Ex facie there is no conflict between articles 194(3) and 19 (1) (a)	 for they deal with different matters. The former says that the State Legislatures shall have the powers and privileges of the English House of Commons while 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 194(3). When article 194(3) says that the State Legislatures shall have certain privileges	 it really incorporates those privileges in itself. Therefore	 the proper reading of article 194(3) is that it provides that the State Legislatures have	 amongst other privileges	 the privilege to prohibit publica tion of any of its proceedings. It is only then that 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 case(1) by all the Judges. If they had not done that	 there would have been no question of a conflict between the two provisions or of reconciling them. Now if 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 194(3) which said that the State Legislatures shall have power and privilege to prohibit publication of their proceedings. That can hardly be described as harmonious reading of the provisions	 a reading which gives effect to both provisions. It is a reading which gives effect to one of the provisions and treats the other as if it did not exist. (1) [1959] Supp. 1 S.C.R. 806. 527 It is true that if article 19(1) (a) prevailed	 it would not wipe out all the other privileges of the House of Commons which had to be read in article 194(3). Thus the right of the House to exclude strangers remained intact even if the right to prohibit publication of proceedings was destroyed by 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 194(3) 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 case(1)	 if the privilege claimed by the Legislature under article 194(3) 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 194(3) which says that the House can prohibit publication of its proceedings is completely destroyed	 it is as if it had never been put in the	Constitution. That	 to my mind	 can hardly have been intended or be the proper reading of the Constitution. I would for these reasons say that the rule of harmonious construction supports the interpretation arrived at by the majority in Sharma 's case(1). Subba Rao J. gave another reason why he thought that funda mental rights should have precedence over the privileges of the (1) [1959] Supp. 1 S.C.R. 806. 528 Legislature and on this also learned counsel for the High Court relied in the present case. Subba Rao J. said that that part of article 194(3) under which the State Legislature claimed the same privilege as those of the House of Commons in England	 which has been called the second part of this clause	 was obviously a transitory provision because it was to have effect until the Legislature made a law defining the privileges as the Constitution makers must have intended it to do. He added that if and when the Legislature made that law that would be subject to the fundamental rights and it would be strange if provisions which were transitory were read as being free of those rights. The majority in Sharma 's case(1) no doubt said without any discussion that the law made under article 194(3) would be subject to all fundamental rights. Learned advocate for the Assembly however contended before us that that view was not justified. In the present case it seems to me it makes no difference whatever view is taken. Assume that the law made by a Legislature defining its privileges has to be subject to fundamental rights. But that will be so only because article 13 says so. Really the law made under article 194(3) is not to be read as subject to fundamental rights; the position is that if that law is in conflict with any fundamental right	 it is as good as not made at all. That is the effect of article 13. The argument that since the laws made under article 194(3) are subject to fundamental rights	 so must the privileges conferred by the second part of cl. (3) be	 is therefore based on a misconception. Article 13 makes a law bad if it conflicts with fundamental rights. It cannot be argued that since 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 194(3) is not. Therefore	 I do not see why it must be held that because a law defining privileges if made	 would be void if in conflict with fundamental rights	 the privileges incorporated in article 194(3) 1 have already said that that is how the second Dart of article 194(3) has to be read must also have been intended to be subject to the fundamental rights. If such was the intention	 cl. (3) would have started with a provision that it would be subject to the Constitution. The fact that in cl. (1 ) the words 'subject to the provisions of this Constitution ' occur while they are omitted from cl. (3) is a strong indication that the latter clause was not intended to be so subject. Furthermore	 that could not have been the intention because then the privilege with which the present case is concerned	 namely	 to commit for contempt by a general 1. [1959] Supp. 1 S.C.R. 806. 529 warrant without the committal being subjected to the review of the court	 would be wiped out of the Constitution for the fundamental right required that the legality of every deprivation of liberty would be examinable in courts. It was also said that fundamental rights are transcendental. I do not know what is meant by that. If they are transcendental that must have been because the Constitution made them so. The Constitution no doubt by 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 194(3) being transitory	 that depends on what the intention of the Constitution makers was. No doubt it was provided that when the law was made by the Legislature under the first part of article 194(3) the privileges of the House of Commons enjoyed under the latter part of that provision would cease to be available. But I do not see that it follows from this that the second part was transitory. There is nothing to show that the Constitution makers intended that the Legislature should make its own law defining its privileges. The Constitution makers had before them when they made the Constitution in 1950	 more or less similar provisions in the Australian Constitution Act	 1901 and they were aware that during	 fifty years	 laws had not been made in Australia defining the privileges of the Houses of the Legislatures there but the Houses had been content to carry on with the privileges of the House of Commons conferred on them by their Constitution. With this example before them I have no 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 194(3). 1 think it right also to state that even if the rights conferred by the second part of article 194(3) were transitory	 that would not justify a reading the result of which would be to delete a part of it from the Constitution. It is necessary to notice at this stage that in Ganupati Keshav Ram Reddy vs Nafisul Hassan(1) his Court held the arrest of (1) A.I.R. 1954 S.C.636 530 a citizen under the Speaker 's order for breach of privilege of the Uttar Pradesh Assembly without producing him before a magistrate as required by article 22 (2) of the Constitution was a violation of the fundamental right mentioned there. Reddy 's case(1) states no reason in support of the view taken. Subba Rao J.	 though he noticed this	 nonetheless felt bound by it. The majority did not do so observing that the decision there proceeded on a concession by counsel. In this Court learned Advocate for the High Court said that there was no concession in the earlier case. I notice that Das C.J." who delivered the judgment of the majority in Sharma 's case(1) was a member of the Bench which decided Reddy 's case(1). If the decision in Reddy 's case( ') was not by concession at least in the sense that the learned advocate was unable to advance any argument to support the contention that privilege superseded fundamental right	 it would be strange that the point was not discussed in the judgment. However all this may be	 in view of the fact that it does not seem from the judgment to have been contended in Reddy 's case(1) that the second part of article 194(3) created privileges which took precedence over the fundamental rights	 as the judgment does not state any reason in support of the view taken	 for myself I have no difficulty in not following Reddy 's case(1) especially as the majority in Sharma 's case(1) did not follow it. It was also said that the privileges were only intended to make the Legislatures function smoothly and without obstruction. The main function of the Legislatures	 it was pointed out	 was the making of laws and the object of the privileges was to assist in the due discharge of that function. It was contended that if the laws made by a Legislature	 for the making of which it primarily exists	 are subject to fundamental rights	 it is curious that something which is ancillary to that primary function should be free of them. I find nothing strange. in this. Laws made by a Legislature are subject to fundamental rights because the Constitution says so. The privileges are not subject because they are conferred by the Constitution itself and have neither been made so subject nor found on a proper interpretation to be such. I believe I have now discussed all the reasons advanced in support of the view that the majority decision in Sharma 's case (2) was erroneous. As I have said	 I am not persuaded that these reasons are sound. C. 636. (2) [1959] Supp. 1 S.C.R. 806. 531 In R. K. Karanjia vs The Hon 'ble Mr. M. Anantasayanam lyyangar	 Speaker	 Lok Sabha (W.P. 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 case(1) but it considered that decision to be correct and refused to admit the petition. This is another reason for holding that Sharma 's case (1) was correctly decided. I now come to the other contention concerning Sharma 's case(1). It was said that all that the majority judgment held in that case was that the privilege of prohibiting publication of its proceedings conferred on a Legislature by the second part of cl. (3) of 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 194(3) would take precedence over all fundamental rights. It was stressed that Das C.J. dealt with the argument advanced in that case that 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 194(3) to prohibit publication of its proceedings and	 therefore	 it was unnecessary to refer to the other fundamental rights. The reason	 however	 which led the majority to hold that the conflict between the two had to be resolved by giving precedence to the privilege would be available in the case of a conflict between many other privileges and many other fundamental rights. Now that reason was that to resolve the conflict	 the rule of harmonious construction had to be applied and the result of that would be that fundamental rights	 which in their nature were general	 had to yield to the privileges which were special. The.	 whole decision of the majority in that case was that when there was a conflict between a privilege created by the second part of article 194(3) 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 S.C.R. 806. 532 between the privilege of committal to prison for contempt by a general warrant without the validity of that warrant being reviewed by a court of law and the fundamental rights guaranteed by 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 C.J. no doubt said that there was no violation of article 21 in Sharma 's case(1) because the deprivation of liberty was according to procedure established by law. That was	 to my mind	 only an alternative reason	 for he could have dealt with that point on the same reason on which he said that the fundamental right under 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 C.J. 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 C.J. 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 case(1) 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 C.J. must have held since he did not accept the correctness of Reddy 's case(2)	 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 case(1) was at all based on those clauses. These clauses	 it will be remembered	 dealt with freedom of speech in the House. Das C.J.	 referred to them only because some arguments	 to which it is unnecessary now to refer	 had been advanced on the basis of these (1) [1959] Supp. 1 S.C.R. 806. (2) A.I.R. 1954 S.C. 636. 533 clauses for the purpose of showing that the privileges were subject to the fundamental right of freedom of speech. Both the minority and the majority judgments were unable to accept these arguments. Indeed the question in that case concerned the power to affect a citizen 's freedom of speech outside the House and cls. (1) and (2) only deal with freedom of speech of a member in the House itself and with such freedom that case had nothing to do. In this Court some discussion took place as to the meaning of the words "subject to the provisions of thein cl. (1) of 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 194(3) and a fundamental right	 that conflict has to be resolved by harmonising the two provisions. It would be wrong to say that the fundamental right must have precedence over the privilege simply because it is a fundamental right or for any other reason. In the present case the conflict is between the privilege of the House to commit a person for contempt 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 194(3). This	 in my view	 	cannot be. That being so	 it would follow that when a House commits a person for contempt by a general warrant that person would have no right to approach the courts nor can the courts sit in judgment over such order of committal. It is not my intention to state that there may not be exceptions to the rule but I do not propose to enter into discussion of these exceptions	 if any	 in the present 	case. The existence of those exceptions may be supported by the observations of Lord Ellenborough C.J. in Burdett vs Abbot(1). May at p. 159 puts the matter thus: "Lord Ellenborough C.J.	 left open the possibility that cases might arise in which the courts would have to decide on the validity of a committal for contempt where the facts displayed in the return could by no reasonable 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. C.I./65 9 536 Advocate	 before it in custody or to call for their explanation for its contempt; It will be remembered that	 according to the recitals	 the resolution of March 21	 1964 which directed the production of the Hon 'ble Judges in custody stated that they had committed contempt of the House by what they respectively did in connection with Keshav Singh 's petition of March 19	 1964 and that the Assembly disputes that the resolution so provided. We have however to answer the question on the facts as stated in the order of reference and have no concern with what may be the correct facts. For one thing	 it would not be competent for the Assembly to find the Hon 'ble Judges and B. Solomon to be guilty of contempt without giving them a hearing. Secondly	 in the present case I have already shown that they were not so guilty. That being so	 it was not competent for the Assembly to direct their production in custody. It has to be noticed that in the present case the Assembly had directed the production of the Hon 'ble Judges not for the purpose of hearing them on the question of contempt but on the basis that they had committed a contempt. It is unnecessary	 therefore	 to discuss the question of the privilege of the House to "cause persons to be brought in custody to the Bar to answer charges of contempt". See May p. 94. Furthermore	 the Assembly had modified its resolution to have the Judges	 Solomon and Keshav Singh brought under custody and asked only for explanation from the Hon 'ble Judges and B. Solomon for their conduct. Therefore	 strictly speaking	 the question as to bringing them in custody before the House does not arise on the facts of the case. As to the competence of the Assembly to ask for explanation from the two Judges and B. Solomon	 I think it had. That is one of the privileges of the House. As it has power to commit for contempt	 it must have power to ascertain facts concerning contempt. Question No. 4. Whether	 on the facts and 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 124(4)	 that is	 by the order of the President upon an address by each House of Parliament supported by a certain majority. Reliance was then placed on 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 194(2) but it was said to indicate the intention of the Constitution makers that a Judge is to be immune from liability for contempt of the Assembly. The correctness of these contentions was challenged on behalf of the Assembly. With regard to the point of judicial independence	 it was said that it would hardly have been intended that a Judge should have immunity even though he deliberately committed contempt of a House. It was pointed out that the contempt would be deliberate	 because the Judge would know that in the case of a general warrant he had no jurisdiction to proceed further. As regards the argument based on the 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 194(1) 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 194(3) 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 Topham(1) and case of Brass Crossby(2). I am not sure that I have set out all the arguments on this question but what I have said will give a fair idea of the competing contentions. For the purpose of this case	 I do not think it necessary to go into the merits of those contentions. The questions that arise on the facts of the reference can	 in my view	 be answered without pronouncing on the question of immunity of Judges. It is often much better that theoretical disputes should be allowed to lie buried in learned tracts and not be permitted to soil our daily lives. It would not require much strain to avoid in practice circumstances which give rise to those disputes. In England they have done 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 Singh	who was not one of its members	 to prison for its contempt. The warrant of committal did not contain the facts constituting the alleged contempt. While undergoing imprisonment for the committal	 Keshav Singh through his Advocate moved a petition under 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 143(1) of the Constitution in which the whole dispute as to the constitutional relationship between the High Court and the State Legislative including the question whether on the facts of the case Keshav Singh 414 his Advocate	 and the two Judges	 by their respective acts	 were guilt of contempt of the State Legislature	 was referred	. 	 to the Supreme Court for its opinion and report. At the hearing of the Reference a preliminary objection as to the competency of the Reference was raised on behalf of the Advocate General of Bihar	 on the ground that it did not relate to any	 of the matters covered by the President 's powers and duties under the Constitution. It was also urged	 that even if the Reference was competent	 the Court. should not answer it as it not obliged "to do so	 and the answers given by	it would not help) the President in solving any of the difficulties with which ' he might be faced in discharging his duties. The Court did not ' accept these contentions and proceeded to hear the parties which fell	broadly	into two groups those supporting the Assembly and those supporting the High Court. On behalf of	the	Assembly it was urged that by 194(3) of the Constitution all the power and immunities of the House of Commons of the United Kingdom on	. 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	 I.e.	 a warrant which did not state the facts constituting the contempt	 and	 therefore Courts in India were also precluded from examining the legality of the general warrants of	 the State Legislatures. The proceedings in the High Court in the present case were	 therefore	 in contempt of the legislature. Those supporting the stand taken by the High Court urged that the Legislature received the powers of the House of Commons subject to provisions of the Constitution and to the fundamental rights	 that the power to commit by general warrant was not one of the privileges of the House of Commons	 that by virtue of Articles 226 and 32	 "the citizen had the right to move the Courts when his fundamental rights were contravened	 and that because of the provisions in 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. jj.)The terms of article 143(1) are very wide and all that they require is that the President should be satisfied that the questions to be referred are ' of such a nature and of such public imp that it would be expedient to obtain the Supreme Court opinion on them. The President 's order making the present Reference showed that he was so satisfied	 and therefore the Reference was competent. The argument that a Reference "under article 143(1) could only be on matters directly 'related to the President 's powers and duties under the Constitution was misconceived [431 E F] 432 E F]. Earlier References made by the President under article 143(1) showed no uniform pattern and that was consistent with the broad and wide words used in article 143(1). [433 C D]. In re : The ; 	 	 In re: The Kerala Education Bill	 1957	 [1959] S.C.R. 995	 In re: Berubari Union & Exchange of Enclaves	 and In re: Sea Customs Act	 [1964] 3S.C.R. 787	 referred to. It is not obligatory on the Supreme Court to answer a Reference under article 143(1) the word used in that Article being 'may	 in contrast to the word 'shall ' used in article 143(2). Refusal to make a report 415 answering the questions referred would however be justified only for sufficient and satisfactory reasons e.g.	 the questions referred being of a purely socio economic or political character with no constitutional significance at all. The present Reference raised questions of grave constitutional importance and the answers given by the Court could help the President to advise the Union and State Governments to take suitable legislative or executive action 1 It was therefore the duty of; the court to answer it. [434 B D; 433 G H]. The advisory opinion rendered by the Court in the present Reference proceedings was not adjudication properly 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 194(3) claim to be the sole of their powers and privileges to the exclusion of the courts. Their powers and privileges were to be found in article 194(3) alone and nowhere else	 and the power to interpret that Article lay under the scheme of the Indian Constitution	 exclusively with the Judiciary of this country. (Scheme of the Constitution 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	 212(1) and 211 (examined by the Court) showed that the intention was ' to avoid such a conflict in this country. [454 A B; 455 C E]. Article 211 which provides that the Legislatures could not discuss the conduct of the Judge in the discharge of his duties	 was mandatory. [457 G H]. State of U. P. vs Manbodhan Lal Srivastava	 [1958] S.C.R. 533 and Montreal Street Railway Company vs Nornwndin	 L. R. ; 	 referred to. (iii) Although article 194(3) has not been made expressly subject to the provisions of the Constitution	 it would be unreasonable in construing it to ignore the other provisions	 if for valid reasons they were found to be relevant and applicable. Therefore wherever it appeared that there was a conflict between the provisions of article 194(3) and the provisions relating to fundamental rights	 an attempt had to be made to resolve the said conflict by the adoption of the rule of harmonious construction as was done in Sharma Is case. [443 C E]. Pandit M. section M. Sharma vs Shri Sri Krishna Sinha & Others	 [1959] Supp. 1 S.C.R. 806. (iv) In Sharma 's case a majority of this Court held	 in terms	 that article 21 was applicable to the contents of article 194(3) though article 19(1) was not. The minority view was that article 194(3) was subject to all the fundamental rights. [451 B C]. The majority in Sharma 's case cannot be said to have held that article 194(3) 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 194(3) of all the fundamental rights in Part 111	 and therefore it was unnecessary for the Court to discuss and decide that general issue. His claim was based on the applic 416 ability of two Articles only i.e.	 Articles 21 and 19(1) (a). The Court A held that the former was applicable and the latter was not. This must therefore be taken to have been settled in Sharma 's case. [451 C F]. But Sharma 's case cannot be said to have settled the issue whether article 22(2) was applicable to article 194(3) or not. [Observations of the majority therein as to the correctness of the decision in Freddy 's case which was decided on the basis that Art	. 22(2) was applicable	 held to be obiter]. [452 D E]. Pandit M. section M. Sharma vs Shri Sri Krishna Sinha & Others	 [1959] Supp. 1 S.C.R. 806 and Gunupati Keshavram Reddy vs Nafisul Hasaan and the State of U.P.	 A.I.R. 1954 S.C. 636	 discussed. (v) The view taken in Sharma 's case that the laws defining the powers and privileges of the legislatures under the first part of article 194(3) would be subject to article 13 and therefore to the fundamental rights	 did not require reconsideration. [453 G]. Anantha Krishnan vs State of Madras	 A.I.R. 1952 Mad. 395	 considered. (vi) The first part of article 194(3) empowers the State Legislatures to define by law their own powers	 privileges and immunities. The second part of the Article says that till they define their powers etc. in the above manner	 their powers	 privileges and immunities will be those of the British House of Commons. The second part was obviously 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 i.e.	 26th January	 1950 and not those which had fallen into desuetude or the claim in respect of which had been given up. Further	 only those powers can be deemed to have been conferred which were not only claimed by the House of Commons but also recognised by the British Courts. [442 F H]. (vii) The claim that all the powers of the British House of Commons became vested in the Indian Legislatures by virtue of article 194(3) cannot be accepted in its entirety for there are many powers of the House of Commons such as right of access to the sovereign	 passing acts of attainder	 impeachment	 determining its own Constitution etc.which cannot be possibly exercised by the Indian Legislatures. [448 D G]. May 's Parliamentary Practice	 16th Edn. p. 86	 referred to. (viii) article 194(3) did not confer on the Indian State Legislatures the right to commit for contempt by a general warrant which could not be examined for its validity by courts in habeas corpus proceedings. The right claimed by the House of Commons not to have its general warrants examined in habeas corpus proceedings	 was based on the 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	 L.J. (1701 05) 714	 Earl of Shaftesbury 's case	 	 Bradlaugh vs Gossett	 L.R. XII Q.B.D. 271	 12 State Tr.122	 Sir Francis Burdett	 Abbott	 104 E.R. 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	 L.R. XII Q.B.D. 271	 held not applicable. Speaker of the Legislative Assembly of Victoria vs Hugh Glass	 (1869 71) III L.R.	 P.C. 560	 Fielding and Others vs Thomas	 	 The Queen vs Richards	 ; and Dill vs ; 	 not followed. Observations of Gwyer C.J.	 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 Q.B.D. 678	 referred to as indicating that even in regard to a commitment for contempt by a superior court of record	 the court exercising its jurisdiction over a petition filed for habeas corpus would be competent to consider the legality of the said contempt notwithstanding the fact that the warrant for commitment was general or unspeaking. The Indian State Legislatures were not at any time in their history	 either under the Constitution Act. 1935	 or under the Indian Independence Act	 1947	 intended to be courts of record. The legal fiction in article 194(3) could not transfer the history of England to India and confer on the Indian State Legislatures the status of superior courts of record. Thus the very basis on which the English Courts agreed to treat a general warrant issued by the House of Commons on the footing that it was a warrant issued by a superior court of record	 was absent in their case	 and so	 it would be unreasonable to contend that the relevant power to claim a conclusive character for the general warrant which the House of Common 		 by agreement	 was deemed to possess	 became vested in the Indian Legislatures. On this view of the matter the claim made by the Uttar Pradesh Assembly had to be rejected. [492 A B]. (ix) Even if the power to commit by non examinable general warrant were treated as forming an integral part of the privileges of the House of Commons it would not follow that the Indian State Legislatures could exercise that power by virtue of article 194(3). [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 194(3) in Sharma 's case] or any other applicable right	 bad been contravened	 it would plainly be the duty of this Court to examine the merits of the said contention. It would be no answer in such a case to say that the warrant issued against the citizen was a general warrant and a general warrant must stop all further judicial enquiry and scrutiny. The impact of the 418 fundamental right conferred on Indian citizen by article 32 on the construction of the latter part of article 194(3) 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 208(1). [493 D E]. Observations of Simonds J.	 in In re : Parliamentary Privileges Act	 1770; 	 and Resolution of the House of Lords	 C.J. 1702 04	 pp. 555	 560	 (Cited in May 16th Edn. p. 47)	 referred to. It would be strange if the House which was incompetent because of 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 judicial	scrutiny	could be held in respect of the validity of such a warrant. This would Put the basic concept of judicial independence into grave jeopardy. [493 E H]. It 'was also ' doubtful whether the power to issue a general up spcaking warrant was consistent with section 554(2)(b) 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 any	law for the time being in force entitled to practice. Section 14 of the Bar Councils Act recognises a similar right. Just as the rights of the Judicature to deal with matters before them under article 226 or article 32 cannot be subjected to the powers and privileges of the House under article 194(3)	 so the rights of the citizen to move the Judicature and the right of the Advocates to assist that process must remain uncontrolled by article 194(3). That is one integrated scheme for protecting the fundamental rights and for sustaining the rule of law in this country. Therefore the right to commit by a conclusive general warrant which the State Assembly claimed to be an integral part of its powers or privileges was inconsistent with the material provisions of the Constitution and could not be deemed to have been included under the latter part of article 194(3). [495 E H]. The power to commit by general warrant was moreover not essential for the effective functioning of a House of Legislature. The American Congress had been functioning effectively without such power. [497 B E]. In India	 there are 14 State Legislatures in addition to the Houses of Parliament. If the power claimed by the U.P. Assembly were conceded it is not difficult to imagine that its exercise may lead to anomalous situations as when a member of one Legislature is committed for contempt by a general warrant issued by another Legislature on account of a speech made by him in his own Legislature. [497 E F]. (x) It was open to Keshav Singh in his petition under 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 K.B.D. 576 and The King vs Secretary of State for Home Affairs Ex parte O 'brien	 [1923] 2 K.B.D. 361	 referred to. 419 (xi) Although in England parties who stand committed for contempt by the house of Commons are not admitted to bail by courts	 the position in India is different. If 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] S.C.R. 28 and Maxwell on Interpretation of Statutes	 11th Edn. p. 350	 relied on. Lala Jairam Dav & others and King Emperor	 72 I.A. 120	 held inapplicable. (xii) On the facts of the case the High Court was competent to entertain the petition of Keshav Singh and to grant him bail pending	 disposal of his petition. There was no contempt of the U.P. Assembly committed by Keshav Singh or his Advocate in moving the application under 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 U.P. Assembly and other respondents to the said petitions from implementing the aforesaid direction of the Assembly. A Judge of a High Court who entertains or deals with a petition challenging any order or decision of a Legislature imposing any penalty on the petitioner (who is not a member of the Legislature) or issuing any process against the petitioner for its contempt (the alleged contempt having been committed outside the four walls of the House)	 or for the infringement of its privileges and immunities	 or who passes any order on such petition	 does not commit any contempt of the said Legislature	 and the said Legislature is not competent to take proceedings against such a Judge in the exercise and enforcement of its powers	 privileges and immunities. [502 A; 503 C]. (xiii) It is necessary to remember that the status	 dignity and importance of the two institutions	 the Legislature and the Judicature	 are derived primarily from the status	 dignity and importance of the respective causes that are assigned to their charge by the Constitution. These two bodies as well as the executive which is another important constituent of a democratic State	 must function not in antinomy nor in a spirit of hostility	 but rationally	 harmoniously and in a spirit of understanding within their respective spheres	 for such harmonious working of the ;three constituents of the democratic State alone will help the peaceful development	 growth and stabilization of the democratic way of life in this Country. [447 D E]. (xiv) The power to punish for contempt large as it is	 must always be exercised cautiously	 wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity of the court	 but may sometimes affect it adversely. Wise Judges never forget that the best way to sustain the dignity and stat of their office is to deserve respect from the public at large by them quality of their judgments	 the fearlessness	 fairness and objectivity of their approach	 and by the restraint	 dignity and decorum which they observe in their judicial conduct. We venture to think that what is true of the Judicature is equally true of the Legislature. [501 F G]. 420 Observations of Lord Atkin in Andre Paul vs Attorney General of Trinidad	 A.I.R.1936 P.C. 141	 referred to. Per Sarkar J. (i) It is undoubtedly for the Courts to interpret the Constitution and therefore article 194(3). It follows that when a question arises in this Country as to whether the House of Commons possessed a particular privilege at the commencement of the Constitution	 that question must be settled	 and settled only by the courts of law. There is no scope of the dreaded 'dualism ' appearing here	 that is	 courts entering into a controversy with a House of a Legislature as to what its privileges are. [509 A B]. (ii) The words appearing in article 194(3) are "the powers	 privileges and immunities of a House. shall be those of the House of Commons. " One cannot imagine more plain language than this. That language can only have one meaning and that is that it was intended to confer on the State legislatures the powers	 privileges and immunities which the House of Commons in England had. There is no occasion here for astuteness in denying words their plain meaning by professing allegiance to a supposed theory of division of powers. [511 A B]. Bradlaugh vs Gossett	 (1884) 12 Q.B.D.271	 Burdett vs Abbott. ; 	 In re : Delhi Laws	 [1951] S.C.R. 747. M.S.M. Sharma vs Shri Sri Krishna Sinha. [1959] Supp. 1 S.C.R. 806	 Speaker of the Legislative Assembly of Victoria vs Glass Queen vs Richards; 	 	 Queen vs Richards	 ; and Fielding vs Thomas	 [1896] A.C. 660	 referred to. (iii) The power to commit by a general warrant with the consequent deprivation of the jurisdiction of the courts was	 one of the privileges of the House of Commons. That privilege was possessed by the U.P. Assembly by virtue of article 194(3) of the Constitution. [524 C D]. There is no authority to show that the House of Commons possessed the powers to commit by a general warrant because it was a superior court of record. Neither the history of the House	 nor the judgments in English cases support that contention. The courts only treated the House as entitled to the same respect as a superior court. They did not say that the House was a superior court. [513 B C	 522 B]. May 's Parliamentary Practice	 16th Edn. Potter 's Outlines of Legal History	 (1958 Edn.) Anson 's Law of the Constitution. 6th Edn. Vol. 1	 referred to. Bradlaugh 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 194(3) take precedence over fundamental rights. This decision was correct and did not require reconsideration. [524 E F; 525 B C	 F]. In re : Delhi Laws Act	 1950; 	 	 referred to. It was not held in Sharma 's case that article 21 takes precedence over the privileges in article 194(3). Das C.J. 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 19(1)(a) that article 21 being a general provision and article 194(3) being special	 the former must yield to the latter. [531 E F; 532 B E]. Another reason for saying that Das C.J. did not hold that Art 21 took precedence over the privilege to commit by a general warrant is the fact that he held that Reddy 's case was wrongly decided. That case had held that article 22 had precedence over the privilege of committal. If article 22 did not have precedence	 as Das C.J. must have held since he did not accept the correctness of Reddy 's case	 no more could he have held that 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 194(3) 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 194(3) 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 194(3) and a fundamental right that conflict has to be resolved as in Sharma 's case by harmonising the two provisions. Harmonious construction means that both the provisions should be given maximum effect without one of them wiping out the other. In the instant case the conflict was between the privilege of the House to commit a person for contempt without that committal being liable to be examined by a court of law	 and the personal liberty of a citizen guaranteed by 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 194(3). This was not harmonious construction. That being so	 it would follow that when a House commits a person for contempt by a general warrant that person would have no right to approach the courts nor can the courts sit in judgment over such order of committal. [533 G H	 534 A C]. Observation of Lord Ellenborough C. J. in Burdett 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].