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PETITIONER: DR. JATISH CHANDRA GHOSH

       Vs.

RESPONDENT: HARI SADHAN MUKHERJEE AND OTHERS.

DATE OF JUDGMENT: 16/01/1961

BENCH: SINHA, BHUVNESHWAR P.(CJ) BENCH: SINHA, BHUVNESHWAR P.(CJ) DAS, S.K. SARKAR, A.K. AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.

CITATION:  1961 AIR  613            1961 SCR  (3) 486

ACT: State   Legislature-Member,   Powers  and   Privileges   of- Publication  of questions disallowed by  Speaker-Prosecution for  defamation -Immunity-Constitution of India,  Art.  194- Indian Penal Code, 1860 (XLV of 1860), ss. 499, 500.

HEADNOTE: The appellant, who was an elected member of the West  Bengal Legislative  Assembly, gave notice of his intention  to  put certain  questions  in the Assembly and on  those  questions being disallowed by the Speaker published them in a  journal called  Janamat of Ghatal, his own constituency.  The  first respondent  who  was then the Sub-Divisional  Magistrate  of Ghatal  and whose conduct was the subject-matter of some  of those questions, filed a complaint against the appellant and two others, the editor and the printer and publisher of  the janamat,  under  ss. 500 and 501 of the Indian  Penal  Code. The appellant pleaded privilege and immunity under Art.  194 of  the Constitution as a bar-to criminal prosecution.   The trial  Magistrate as also the High Court found against  him. On appeal by special leave it was claimed on his behalf that he  had  an  absolute  privilege  under  Art.   194  of  the Constitution  to publish the disallowed questions and  could not be prosecuted therefor. Held,  that  the claim of immunity under Art.   194  of  the Constitution must be negatived. Clause  (1) of Art. 194 had no application since the  matter was clearly outside the scope of that clause. Clause (2)  of that Article was also inapplicable since it was not the case of  the  appellant  that  the  publication  was  under   the authority of the Legislative Assembly and it could not  also be  said that it came within the expression " anything  said or any vote given " in that clause. The publication of a disallowed question by a member of  the Assembly  does  not come within the powers,  privileges  and immunities enjoyed by a member of the House of Commons  and, consequently,  cl.  (3) of Art.  194 also cannot be  of  any help to the appellant.  The immunity enjoyed by a member  of the House of Commons is clearly confined to speeches made in

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Parliament  and  does not extend to the publication  of  the debate  outside.   If he publishes his speech, made  in  the House,  separately from the rest of the proceedings  of  the House,   he  is  liable  for  defamation,  in   case.it   is defamatory. Abingdon’s case, Espinasse’s Reports, Nisi Prius  1793-1810, 228 and Creevey’s case, I Maule and Selwyn’s Reports, King’s Bench, 1813-1817, 273, referred to. 487 There is no absolute privilege attaching to the  publication of extracts from the proceedings in the House of Commons and a  member,  who  has absolute privilege in  respect  of  his speech  in)  the House itself, can claim  only  a  qualified privilege  in  respect  of it if he causes the  same  to  be published in the public press. Quaere:   Whether publication of parliamentary  proceedings, not  authorised by the House, stands on the same footing  as the publication of proceedings in a court of law. Wason v. Walter, (1868-69) L.R. 4 Q.B. 73, referred to. M.   S.  M.  Sharma  v. Sri Krishna Sinha,  [1959]  SUPP.  1 S.C.R. 806, distinguished. Dr.   Suresh  Chandra  Banerjee v. Punit  Goala,  (1951)  55 C.W.N. 745,    referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 65  of 1958. Appeal  by special leave from the judgment and  order  dated April  11,  1956,  of the Calcutta High  Court  in  Criminal Revision No. 1584 of 1955. N.   C.  Chatterjee, Arun Kumar Dutta and D.  N.  Mukherjee, for the appellant. K.B. Bagchi and S.N. Mukherjee, for the respondents. 1961.  January 16.  The Judgment of the Court was  delivered by SINHA, C.J.-This appeal by special leave is directed against the  judgment and order of the High Court of  Judicature  at Calcutta,  dated  April 11, 1956,  whereby  the  appellant’s claim  of  absolute  privilege as a  member  of  the  Bengal Legislative  Assembly  was  rejected  and  the   prosecution launched  against him under s. 500, Indian Penal  Code,  was allowed to proceed. The  facts of this case are not in doubt or dispute and  may shortly be stated as follows.  The appellant is a citizen of India  and an elected member of the West Bengal  Legislative Assembly.   He is also a medical practitioner at  Ghatal  in the  Midnapore District of West Bengal.  In  January,  1954, the  appellant gave notice of his intention to  ask  certain questions in the Assembly.  Those questions were  disallowed in accordance with the rules of procedure for the conduct of business of the Assembly.  In February, 1954, the appellant was  informed  that the questions proposed by him  had  been disallowed.  The appellant published 488 the  questions that had been disallowed in a local   journal called Janamat, in its issue of February 28, 1955.  In July, 1955,  the  first  respondent,  whose  conduct  formed   the subject-matter of the questions and who was then functioning as  a Sub-divisional Magistrate, filed a  complaint  against the  appellant and two others, the editor, and  the  printer and  publisher respectively of the journal  aforesaid.   The petition  of complaint alleged that the appellant  had  made and  published scandalous imputations against him  intending

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them  to  be  read  by members of  the  public,  that  those imputations were false and unfounded and had been made  with the  definite intention of harming or with the knowledge  or having reason to believe that they would harm the reputation of  the  complainant and that the complainant  felt  greatly aggrieved  and  harmed  in mind  and  reputation.   He  also alleged  that being a Government servant,  the,  complainant had  to obtain the necessary permission from the  Government for instituting legal proceedings for the vindication of his character  as  a public servant and that accounted  for  the delay in filing the petition of complaint.  The petition  of complaint charged the appellant with an offence under s. 500 of  the Indian Penal Code and the second and third  accused, who  have been cited as respondents 2 and 3 in  this  Court, under  s.  501  of the Indian  Penal  Code.   After  several adjournments,  the petitioner raised, by way of  preliminary objection to the-.criminal prosecution, the question of  his absolute  privilege and immunity from prosecution under  the provision  of the Constitution.  The learned  Magistrate  by his  order dated October II,, 1955, overruled the  objection and  held that the privilege claimed by the accused was  not an unqualified one.  He relied on a judgment of the Calcutta High  Court in the case of Dr.  Suresh Chandra  Banerjee  v. Punit Goala (1) in support of his conclusion that the  first accused  before him, now appellant, was not entitled to  the privilege  and  immunity claimed by  him.   Thereafter,  the appellant  moved  the  High  Court under  Art.  228  of  the Constitution for having the case withdrawn to the (1)  (1951) 55 C.W.N. 745. High Court for determination of the constitutional  question raised  by him by way of defence, but that, application  was dismissed by a Bench of the High’ Court on November 9, 1955, presumably on the ground that the. case did not involve  any substantial question of law as; to the interpretation of the Constitution.  Not daunted by the adverse order aforesaid of the Bench of the High Court, the petitioner again moved  the High Court and obtained a rule on several grounds  including the  question  of  the  proceedings  being  barred  by   the provisions  of  Art. 194 of the Constitution.   The  learned Single  Judge,  who dealt with the case  on  this  occasion, noticed   the   position   that   strictly   speaking    the constitutional   question  could  not  be  allowed   to   be reagitated in view of the Bench decision aforesaid.  But the learned  Judge all the same dealt with the points raised  by the appellant including the question arising under Art.  194 of  the  Cotistitution.   The learned  Judge  dismissed  the application  holding  that  a  member  of  the   Legislative Assembly  had  no  absolute  privilege  in  respect  of  the questions  sought  to  be  asked  by  him,  which  had  been disallowed  but he had published them all the same.  It  was also pointed out that the questions had never been asked  in the  House  and that, therefore, could not be said  to  form part of the proceedings of the House.  He further held  that the  publication  in  the journal at  the  instance  of  the appellant  could by no means be said to have been under  the authority  of  the House.  The appellant moved  the  learned Judge   for   a  certificate  under  Art.  132(1)   of   the Constitution,  but that application was also refused on  the ground  that  the  case  did  not  involve  any  substantial question  of  law  as respects  the  interpretation  of  the Constitution.   The  appellant  then moved  this  Court  and obtained  special leave to appeal from the judgment  of  the High  Court  refusing  the  claim  of  privilege.   He  also obtained  stay of fur. ther proceedings in the Court of  the Magistrate.   The  hearing of the appeal was ordered  to  be

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expedited  That  order was passed on October  1,  1956,  but notwithstanding the order of expedition, the case came to be heard only four years later, 490 In  this  Court,  it has been contended  on  behalf  of  the appellant  that  the learned Judge below had  erred  in  his interpretation  of  the  provisions  of  Art.  194  of   the Constitution  and that on a proper construction’  of;  those provisions  it  should  have been held  (1)  that  questions sought  to be asked by a member of a  Legislative  Assembly, even  though disallowed by the Speaker, formed part  of  the proceedings  of the House, and, as such,  their  publication would  not attract the provisions of the Indian Penal  Code; (2) the provisions of Art. 194 should be liberally construed in  favour of persons like elected members of  the  Assembly who are rendering public service not only by making speeches and asking questions in the Assembly, but also by publishing them  in  the  public press with a  view  to  apprising  the country and, particularly the constituency of what had  been happening in the House.  In other words, it Was claimed that there  was an absolute privilege in favour of a  member  and that,  therefore,  he  could not be  prosecuted  for  having published  the  questions  he sought to put,  but  had  been disallowed by the Speaker. Do  the provisions of Art. 194 of the Constitution lend  any support to the contentions aforesaid raised on behalf of the appellant?   The first clause of Art. 194 does not call  for any  comment  in, this case because no question  as  regards freedom  of  speech in the Legislature of a State  has  been raised.  Clause (2) of the Article has, firstly, laid down a bar against any proceedings, civil or criminal against  any" member  of a Legislature of a State in respect  of  anything said or any vote given by-him in the Legislature or any Com- mittee thereof; and secondly, that no person shall be liable in  a  civil  or  criminal  proceeding  in  respect  of  the publication of any report, paper, votes or proceedings under the  authority of a House of such a Legislature.  It is  not contended  that the publication complained against  in  this case was under the authority of the Legislative Assembly  of West  Bengal.  So the second part of the second  clause  of; Art.  194  cannot  be  pressed  in  aid  of  the  appellants contention.  As regards the first part of the second clause, can  it  be  said  that the  publication,  which  forms  the subject-matter of the 491 prosecution  in,, this case, can come within the purview  of ’,-anything  said  or any vote given " by a member  of.  the Legislative Assembly?  The answer must be in the’  negative. It  is,  therefore,  manifest that el. (2) of  Art.  194  is equally  of  no  assistance to  the  appellant.   Naturally, therefore, reliance was placed in the course of arguments in this  Court on the provisions of cl. (3) of Art. 194.   Does the  publication of a disallowed question by a member of  an Assembly  come within the powers, privileges and  immunities of  the members of the House ? The answer to  this  question depends  upon finding out what are the  powers,  privileges. and immunities of the members of the House of Commons of the Parliament of the United Kingdom at the commencement of  the Constitution.  This Court in the case of M. S. M. Sharma  v. Shri  Sri Krishna Sinha (1) has considered in  great  detail those  immunities  with  respect to  the  publication  of  a portion of a speech which was directed by the Speaker to  be expunged from the proceedings of the House.  This Court  has held  that  the  publication  of  such  a  portion  of   the proceedings  is  not within the privilege attaching  to  the

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publication  of  a faithful report of the proceedings  of  a House of the State Legislature.  That case was not concerned with  the penal law of the country.  In that case the  Court was  concerned with ascertaining the powers of the  Assembly to  punish for contempt of the House with reference  to  the privileges and immunities of a House of the Legislature of a State.    Hence,  that  decision  does  not  assist  us   in determining the present controversy. If  we turn to the legal position in England with  reference to the House of Commons, it is clear that the immunity of  a member of the House of Commons is in respect of the speeches made  by  him in Parliament, but it does not extend  to  the publication  of the debate outside Parliament.  If a  member of  a  House of Commons’ _publishes his speech made  in  the House  separately  from the rest of the proceedings  in  the House,  he  will  be liable for  defamation  if  his  speech contains   matters  defamatory  of  any  person.    In   the celebrated case of R. v. Lord Abingdon (2),,Lord Kenyon  had decided that a speech which had been made in (1) [1959] Suppl.  1 S.C.R. 806,  (2) (1794) 1 ESP. 226; 170 E.R.337, 492 the   House  of  Lords  was  not  privileged  if   published separately   from   the  rest  of  the   debate.    In   May Parliamentary Practice, 16th Edition, by Lord Campion, occur the  following statements in respect of the  two  well-known cases  of Abingdon (1) and Creevey, Journal of the House  of Commons (1912-13) 704:-               "Abingdon’s  case,  (1).-An  information   was               filed  against Lord Abingdon for a libel.   He               had   accused   his   attorney   of   improper               professional conduct,, in a: speech  delivered               in  the  House of Lords, which  he  afterwards               published  in  several newspapers at  his  own               expense.   Lord Abingdon pleaded his own  case               in  the Court of King’s Bench,  and  contended               that  he had a right to print what he had,  by               the  Law of Parliament, a right to speak;  but               Lord  Kenyon said that a member of  Parliament               had certainly a, right to publish his  speech,               but  that speech should not be made a  vehicle               of slander against any individual; if it  was,               it was a libel.  The Court gave judgment  that               his  lordship should be imprisoned  for  three               months,  pay  a fine of pound 100,  and  find,               security for his good behaviour.               Creevey’s  case  (2),  1813.-Mr.  Creevey,   a               member  of  the House of Commons, had  made  a               charge against an individual in the House, and               incorrect   reports  of  his   speech   having               appeared  in several newspapers,  Mr.  Creevey               sent  a  correct  report to the  editor  of  a               newspaper,  with  a  request  that  he   would               publish it.  Upon an information filed against               him,  the jury found the defendant  guilty  of               libel,   and  the  King’s  Bench  refused   an               application   for  a  new,  trial  (See   Lord               Ellenborough’s  judgment  in  Rex  v.  Creevey               (2)).   Mr. Creevey, who had been fined  pound               100,   complained   to  the   House   of   the               proceedings of the King’s Bench; but the House               refused  to admit that they were a  breach  of               privilege." It is clear on a reference to the law in England in  respect of  the  privileges and immunities of the House  of  Commons

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that  there  is  no  absolute  privilege  attaching  to  the publication  of  extracts from proceedings in the  House  of Commons.   So  far as a member of the House  of  Commons  is concerned, he has an absolute privilege (1)  (1794) Esp. 226; 170 E,R, 337(2).(1813)1 M, &S. 2   73; 195 E.R, T02. 493 in  respect of what he has spoken within the four  walls  of the  House, but there is only a qualified privilege  in  his favour  even in respect of what he has himself said, in  the House,  if he causes the same to be published in the  public press.    The   case  of  publication  of   proceedings   of Parliament, not under the authority of the House, stands  on the same footing as the publication of proceedings in courts of  justice.  That was made clear by Cockburn, C.J.  in  the case of Wason v. Walter (1).  Explaining why the publication of a single speech in the proceedings in the House would not be   absolutely  privileged,  the  learned   Chief   Justice observed:-               "  It  is  to be  observed  that  the  analogy               between the case of reports of proceedings  of               courts of justice and those of proceedings  in               Parliament being complete, all the limitations               placed  on  the one to  prevent  injustice  to               individuals  will  necessarily attach  on  the               other;  a  garbled or partial  report,  or  of               detached parts of proceedings, published  with               intent to injure individuals, will equally  be               disentitled to protection. So  long  as  Parliament  does  not  crystallise  the  legal position by its own legislation, the privileges, powers  and immunities  of a House of a State Legislature or  Parliament or  of  its members are the same as those of  the  House  of Commons, as stated above.  In the present case the appellant sought to put certain questions bearing upon the conduct  of the  complainant,  the  first  respondent,  in  this   case. According to r. 27 of the Assembly Procedural Rules, certain conditions have to be fulfilled in order that a question may be admissible.  Amongst other requirements of the rule,  one of the conditions is that it must not contain any imputation or imply a charge of a personal character.  Rule 29 of those rules authorises the Speaker to decide on the  admissibility of a question with reference to the provisions of the  rules and lays down that the Speaker " shall disallow any question when,  in  his  opinion,  it is an abuse  of  the  right  of questioning, or is in contravention of those provisions.   " In  view of the conclusion we have already reached,  namely, that  there  is no absolute privilege, even in favour  of  a member  of the Legislature, in respect of a publication  not of the entire 63             (1) (1868) L.R. 4 Q.B. 73, 94. proceedings, but of extracts from them, it is not  necessary for  us to decide the question whether disallowed  questions can  be said to form part of the proceedings of a  House  of Legislature. In this connection, it is also relevant to note that we  are concerned  in  this  case with a  criminal  prosecution  for defamation.   The law of defamation has been dealt  with  in ss.  499  and  500 of the Indian Penal  Code.   Section  499 contains a number of exceptions.  Those specified exceptions lay down what is not defamation.  The fourth exception  says that  it is not defamation to publish a  substantially  true report  of the proceedings of a court of justice,  but  does not make any such concession in respect of proceedings of  a House of Legislature or Parliament.  The question  naturally

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arises  how far the rule in Wason’s case (1) can be  applied to criminal prosecutions in India, but as this aspect of the controversy  was not canvassed at the Bar, we need  not  say anything  about it, as it is not necessary for the  decision of this case. The  legal position is undisputed that unless the  appellant can  make out an absolute privilege, in his own  favour,  in respect  of the publication which is the  subject-matter  of the charge in this case, the prosecution against him  cannot be  quashed.  As we have held, that he has no such  absolute privilege,  in agreement with the High Court, he  must  take his  trial and enter upon his defence, such as he may  have. As  the evidence pro and con has not been recorded in  full, the arguments at the Bar had naturally to be confined to the purely legal question of the absolute privilege claimed.  It need  hardly be added that we do not express any opinion  on the merits of the controversy which will now be gone into by the learned Magistrate before whom the case has been pending all these years. For  the reasons given above, it must be held that there  is no merit in this appeal.  It is accordingly dismissed.   The pending prosecution, which has been held up for so long,  it is  expected,,  will  now  be  proceeded  with  without  any avoidable delay. Appeal dismissed. (1) (1868) L.R. 4 Q.B, 73. 495