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PETITIONER: PANDIT M. S. M. SHARMA

       Vs.

RESPONDENT: SHRI SRI KRISHNA SINHA AND OTHERS

DATE OF JUDGMENT: 12/12/1958

BENCH: DAS, SUDHI RANJAN (CJ) BENCH: DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H. SINHA, BHUVNESHWAR P. SUBBARAO, K. WANCHOO, K.N.

CITATION:  1959 AIR  395            1959 SCR  Supl. (1) 806  CITATOR INFO :  R          1960 SC1186  (1,2,5,6,8)  D          1961 SC 613  (4)  R          1962 SC  36  (36)  F          1963 SC 996  (11)  C          1965 SC 745  (36,37,46,ETC.,)  R          1967 SC1639  (8)  RF         1967 SC1643  (22)  R          1968 SC1313  (10)  RF         1971 SC1132  (49)  R          1973 SC 106  (102)  RF         1973 SC1461  (648)  R          1982 SC 710  (21)

ACT:        State     Legislature,   Privilege  of-Power   to   Prohibit        Publication of proceedings    including portions expunged by        the  Speaker--Publication, if a breach of  privilege-If  can        prevail over the fundamental  right to freedom of speech and        expression--Freedom   of   the  Press  Scope   and   extent-        Constitution of India, Arts. 194(3), 19(1) (a).

HEADNOTE: The  petitioner, the Editor of the English  daily  newspaper Searchlight  of Patna, was called upon by the  Secretary  of the  Patna  Legislative Assembly to show  cause  before  the Committee  of  Privileges of the  Assembly  why  appropriate action  should  not be taken against him for the  breach  of privileges of the Speaker and the Assembly for publishing in its entirety a speech delivered in the Assembly by a  member thereof,  portions of which were directed to be expunged  by the  Speaker.  It was contended on behalf of the  Petitioner that  the  said  notice  and  the  proposed  action  by  the Committee  were  in violation of his  fundamental  right  to freedom of speech and expression under Art. 19(1)(a) and  of the protection of his personal liberty under Art. 21 of  the Constitution, and that, as an editor of a newspaper, he  was entitled  to all the benefits of the freedom of  the  Press. The  respondents relied on Art. 194(3) Of  the  Constitution and  claimed that the proceedings in the House as  those  in

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the  British House of Commons were not usually meant  to  be published,  and  in no circumstances was it  permissible  to publish the parts of a 807 speech  which were directed to be expunged  and,  therefore, formed  no part of the official report and such  publication was in clear breach of the privileges of the Assembly.   The points for determination were: (1)  Could  the British House of Commons  entirely  prohibit the publication of its proceedings or even of such  portions of them as had been directed to be expunged ? (2)  Assuming  that  the British House of Commons  had  such power  and consequently the State Legislature also had  such power  under  Article 194(3), could the  privileges  of  the Legislature under that Article prevail over the  fundamental right guaranteed by Art. 19(1)(a)? The  Bihar  Legislature not having admittedly made  any  law governing  its powers and privileges under Entry 39 of  List II of the Seventh Schedule to the Constitution, the question naturally  was  as to what were the powers,  privileges  and immunities   of  the  British  House  of  Commons   at   the commencement of the Constitution. Held   (per  Das, C. J., Bhagwati, Sinha and  Wanchoo,  jj.) that  there could be no doubt that the liberty of the  Press was  implicit  in  the  freedom  of  speech  and  expression guaranteed   to  a  citizen  under  Art.  19(1)(a)  of   the Constitution   and   that  must  include  the   freedom   of propagation of ideas ensured by the freedom of circulation. Romesh  Thappar  v.  State of  Madras,  [1950]  S.C.R.  594, Brijbhushan  v. The- State of Delhi, [1950] S.C. R. 605  and Express Newspaper Ltd. v. Union of India, [1959] S.C.R.  12, relied on. The  liberty of the Press in India flowed from this  freedom of speech and expression of a citizen and stood on no higher footing and no privilege attached to the Press as such. Arnold  v. King Emperor, (1914) L.R. 41 I.A.  149,  referred to. A  survey  of the evolution of Parliamentary  privileges  in England showed beyond doubt that at the commencement of  the Indian  Constitution, the British House of Commons  had  the power or privilege of prohibiting the publication of even  a true and faithful report of the debates or proceedings  that took place in the House, and with greater reason, the  power and privilege of prohibiting publication of an inaccurate or garbled version of such debates and proceedings.  These were the  powers  and privileges that Art.  194(3)  conferred  on State Legislatures and Art. 05(3) conferred on the Houses of Parliament in India. It would not be correct to contend that Art. 19(1)(a) of the Constitution controlled the latter half of Art. 194(3) or of Art.  105(3)  Of  the  Constitution  and  that  the  powers, privileges  and immunities conferred by them must  yield  to the  fundamental right of the citizen under  Art.  19(1)(a). As  Arts.  194(3)  and  105(3) stood  in  the  same  supreme position  as the provisions of Part III of the  Constitution and  could  not  be affected by Art. 13,  the  principle  of harmonious construction must be adopted. 808 So  construed, the provisions of Art. 19(1)(a),  which  were general,  must yield to Art. 194(1) and the latter  part  of its  cl. (3), which are special, and Art. 19(1)(a) could  be of no avail to the petitioner. Ramjilal v. Income-tax Officer, Mohindergarh, [1951]  S.C.R. a 127 and Laxamanappa Hanumantappa v. Union of India, [1955] 1 S.C.R. 769, applied.

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Anand  Bihayi  Mishra v. Ram Sahay, A.I.R. (1952)  M.B.  31, disapproved. Gunapati  Keshavyam  Reddy v. Nafisul Hasan,  A.I.R.  (1954) S.C.  636  explained as having proceeded  on  concession  by counsel. Nor  could the petitioner complain of any breach, actual  or threatened,  of his fundamental right under Art. 21  of  the Constitution  since Art. 194(3) read with the rules,  framed by  the Bihar Legislative Assembly in exercise of its  power under Art. 208 of the Constitution, laid down the  procedure for  enforcing its powers, privileges and  immunities  under that Article and any deprivation of his personal liberty  as a  result  of  the  proceedings  before  the  Committee   of Privileges would be in accordance with procedure established by law. Held,  further, that it was not for this Court to  prescribe any particular period for moving a privilege motion so as to make  the subject matter of the motion a specific matter  of recent  occurrence  within the meaning of  the  said  rules. This was a matter for the speaker alone to decide. The  time  within which the Committee of privileges  was  to submit  its  report was a matter between the House  and  its Committee and the party whose conduct was the subject-matter of investigation could have no say in the matter. The  effect in law of the order of the Speaker to expunge  a portion  of  the  speech of a member might  be  as  if  that portion had not been spoken and a report of the whole speech despite the speaker’s order might be regarded as a perverted and unfaithful report and Prima facie constitute a breach of the  privilege of the Assembly.  Whether there had  in  fact been a breach of the privilege of the Assembly was, however, a matter for the Assembly alone to judge. Per Subba Rao, J.-The second part of Art. 194(3) was clearly a transitory provision and had no higher sanctity than  that of  the  first.   While  a  law  when  made  by  the   State Legislature  under the first part would, by virtue  of  Art. 13(2),  be void to the extent it contravened the  provisions of  19(1)(a), unless saved by Art. 19(2), there could be  no reason  why the powers, privileges and immunities  conferred under the second part should be free from the impact of  the fundamental rights. As  there  was  no  inherent  inconsistency  between   Arts. 19(1)(a)  and  the second part of Art. 194(3),  full  effect must  be given to them both on the principle  of  harmonious construction.  The 809 wide  powers and privileges enjoyed by the  Legislature  and its  members  should, therefore, be so exercised as  not  to impair  the fundamental rights of the citizen,  particularly of one who was not a member of the Legislature.  In case  of a conflict, Art. 19(1)(a) must prevail over Art. 194(3)  and not vice versa and the privilege must yield to the extent it affected the fundamental right. Gunupati  Keshavarm  Reddy v. Nafisul Hasan,  A.I.R.  (1954) S.C. 636, applied. At the commencement of the Constitution the House of Commons had no privilege to prevent the publication of a correct and faithful report of its proceedings, save those in respect of secret  sessions held under exceptional  circumstances,  and had   only  a  limited  privilege  to  prevent   mala   fide publications of garbled, unfaithful and expunged reports  of the  proceedings.  In the instant case, neither the  notices nor  the  documents enclosed therewith  disclosed  any  mala fides on the part of the petitioner or that he had knowledge that  any  portion of the speech had been  expunged  by  the

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Speaker.  Consequently, even supposing Art. 194(3) prevailed over Art. 19(1)(a), the petitioner was entitled to succeed. Wasan v. Walter, (1868) L.R. 4 Q.B. 73, relied on.

JUDGMENT: ORIGINAL JURISDICTION: Petition No. 122 of 1958. Petition  under Article 32 of the Constitution of India  for the enforcement of Fundamental rights. 1958,  Oct. 16, 17, 28, 29, 30.  Basdeva Prasad  and  Naunit Lal, for the petitioner :-The main question to be considered in  the case is as to whose privilege has been involved  and violated-those of the press or the House of the Legislature. Notice served on the petitioner by the Privileges  Committee of  the  Bihar  Assembly  is illegal  and  invalid  and  the Constitution  of the Privileges Committee is illegal as  the Chief Minister of the State Dr. S. K. Sinha himself has been the Chairman of the Committee. On May 30, 1957, there was a debate in the Bihar Legislative Assembly  when M. P. N. Singh, one of the oldest members  of the  Assembly,  made  a  speech the  gist  of  which  was  a criticism of the administration of Bihar as run by Dr. S. K. Sinha,  the Chief Minister, and cited certain  instances  of favouritism.  At this stage the Speaker held that a  portion of the speech was objectionable and ordered it to be  struck off and expunged.  It was a general statement.  No specific 102 810 direction  was given to the Press.  The opposite  party  was claiming   the   right  to  prohibit  all   publication   of proceedings  a  right which the House of  Commons  possesses with  its own history, but never exercises it.   The  speech was made on May 30, 1957, and the official authorised report was  published and made available on January 2, 1958.   ’The Search  Light’, being a daily newspaper, came out on May  31 with what happened in the Assembly.  A privilege motion  was said  to  have been moved and referred to the  Committee  of Privileges; no voting was taken and no time limit was  given for the presentation of the report which was required  under the  rules  of the House.  If no time limit  was  prescribed then under rule 215 the report was to be submitted within  a month. It was after more than a year i.e. on August 18, 1958,  that the   petitioner  received  a  notice  to  show  cause   why appropriate  action should not be taken against him for  the breach of privilege.  This showed malice on the part of  the Privileges Committee. The action of the Privileges Committee raised constitutional points  affecting  the  petitioners  fundamental  right   of freedom of expression. The Legislature cannot have such a privilege as will deprive the   citizens  of  their  fundamental  rights   which   are guaranteed  by  the  Constitution, specially  the  right  of freedom  of expression under Art. 19(1) (a).  In the  actual motion  the charge was that the speech was published in  its entirety,  " Jyon ka Tyon " ; but the motion adopted by  the Privileges Committee, the charge against the Editor was that he  published  a  perverted and  unfaithful  report  of  the proceeding, and the expunged portions of the speech was also published in derogation of the order of the Speaker. [Wanchoo,  J.-If the publication of expunged portions  would make  a  report false, how could it be anything  other  than perverted and unfaithful?] [Daphtary:It was unfaithful as it was not a true report,  as

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portions expunged had also been published]. The  reference was not by the House but by the Speaker.   It was  open to the petitioner to challenge the  procedure,  as one of the grounds of his objection 811 was  that  the  motion  was  not  put  to  vote.   Important questions arose as a result of the proceedings, one of  them being :- Can  a Committee presided over by a Chief Minister  who  has such an interest in the matter as might give him a real bias be deemed to be empowered to carry on the investigation  and recommend punishment ? [Daphtary:I object to the use of the word ’bias’.  It is not supported by the petition or the plea]. The allegation of mala fide is much stronger than bias. [Chief  Justice.-Art. 19(1) had granted  fundamental  rights against  law made by the State.  There were  no  fundamental rights against the Constitution itself.  If the Constitution provided  that the House shall have certain privileges  then it was clear that there cannot be a question of  fundamental rights  against  the  Constitution.   If  the   Constitution provided  that the House shall have the privileges  that  so much  shall  be published then Art. 19(1) will  not  prevail against the Constitution]. I  rely  on Amendment One of the  American  Constitution  on which  the  fundamental  rights in  Art.  19(1)  are  based. Cooley’s " Constitutional Law " (P. 350). Express Newspapers (Private) Ltd. v. Union of India,  [1959] S. C. R. 12, 121. [Sinha,  J.-In America people were more forthright in  their views  and opinions and that we could have  better  guidance from English precedents than from American.] Article  194  (3) which dealt with  powers,  privileges  and immunities   of  the  Legislatures  were  subject   to   the provisions  of the Constitution.  Article 194(3)  cannot  be said   to  abridge  the  provisions  of  Art.  19(1)   which guaranteed  fundamental  rights.   Article  194(3)  of   the Constitution provided the procedure of the British House  of Commons  in  regard to powers,  privileges  and  immunities. Even then any power or privilege which militated against the fundamental  rights  cannot  be deemed  to  be  valid.   The Legislature can follow the procedure of the British House of Commons, but this 812 privilege  of  legislature cannot go contrary  to  the  fun- damental  rights.   If  such a  privilege  is  allowed,  the Legislature   would  assume  sovereignty  as   against   the Constitution itself under the garb of privileges. Even  in  England,  the  ban  on  the  publication  of   the proceedings  in Parliament had ceased to exist  in  practice after the 16th century. The  proceedings of legislatures are open to the public  and the  citizens have a right to know whatever happens  in  the House  and  also  to  know as to  how  any  portion  of  the proceedings is ordered to be expunged. The Blitz case Gunupati Keshavram Reddy v. Nafisul Hasan, A. I. R. 1954 S. C. 636 in which the Supreme Court ordered  the release  of  a correspondent who had been  arrested  by  the Speaker  of the U. P. Assembly in connection with breach  of privilege.  He was not produced before the Magistrate and on Habeas  Corpus  petition,  he  was  released.   Article   20 prevailed and it was established that Art. 194(3) could  not go against Art. 20 guaranteeing a person’s liberty. [Chief   Justice.-If  the  privileges  were  given  by   the Constitution itself, then the question of fundamental rights

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does not come at all.  Article 19(1) is against law made  by the  State  Government.  Fundamental rights do  not  prevail against the Constitution.  The counsel could take the  stand that Bihar Legislative Assembly has not got the powers which it  claims.  The question was whether the Assembly had  such powers under the Constitution]. In England there was no written constitution.  The House  of Commons had claimed the right to prohibit publication but in fact and in actual practice never exercised that right.  The American  Constitution also granted full freedom to  publish the   proceedings  of  the  House  including  the   expunged portions.  That being so, it was for the Court to  interpret Art. 194(3) harmoniously with Art. 19(1) and the  provisions of  the former had to be consistent with fundamental  rights granted  under the Constitution.  In England the  Parliament is  supreme and there is no written constitution,  but  here the Constitution is supreme.  The right to expunge could  be claimed only for the purpose of 813 official record.  They could not claim a total  prohibition. There  was  a  common basis for this in  both  American  and English  democratic systems.  The people, had the  right  to know as to what was happening in the House to enable them to exercise  their franchise properly.  If people have a  right to  see and hear the proceedings, other people who  are  not able to be in the House have a right to know through  publi- shed proceedings. Wason v. Walter, (1868) L. R. IV Q. B. 73, 95. (The  counsel refers to the standing orders in  the  British House of Commons quoting May’s Parliamentary Practice). Article 194(1) in its entirety was subject to the provisions of  the Constitution and under Art. 19 to the provisions  of the  Constitution.  If under Art. 194(3) the application  of the House of Common laws provided complete immunity, then it was  impossible to continue the consistency of  Art.  194(1) and  Art. 194(3).  Article 194(1) provided clearly  that  it was  subject  to the provisions of the Constitution  in  the matter of freedom of speech, etc., in the State Legislature. It  was  impossible  to contend that  Art.  194(3)  was  not subject  to the provisions of the Constitution.  Under  Art. 194(1)  it  was  made clear that a member of  the  House  of Legislature  did not have the same immunity as had a  member of the House of Commons who enjoyed complete freedom and had no restriction of whatever sort.  Here Art. 194(1) made  the freedom  of speech in the House subject to the provision  of the Constitution. [The  Chief Justice.-It might be that one of the  immunities was  singled out and made subject to the provisions  of  the Constitution]. Privileges and rights of the House of Commons extended  also to elections.  The power of the House of Commons to fix  its own  elections  could not be challenged in a tribunal  or  a court.  Here in India, elections were held under a  separate authority  provided  by the Constitution under Ch.   XV  and such  elections could be challenged and appeared against  in the High Court, tribunals, etc.  In England, the validity of an election was to be determined by the House 814 of  Commons itself or its tribunal.  Such a privilege  could not be claimed by a House of Legislature here. [The  Chief  Justice.-Here  we had  powers,  privileges  and immunities  which  may be prescribed by law  by  legislation under  Art.  194(3) and it was Part XV in  the  Constitution which  provided  for  elections.   It  showed  that  powers, privileges and immunities had been separated and dealt  with

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separately]. The  whole scheme of the Constitution had to be  taken  into account.   The reasonable interpretation of Art. 194(3)  was that,  like  Art. 194(1) it was also in  its  entirety  made subject to the provisions of the Constitution. The next point was that the Chief Minister could not be  the Chairman of the Committee of Privileges with  quasi-judicial powers to summon witness and demand production of  evidence. In  this case, the Chief Minister had a certain interest  in the  matter and this was against all principles  of  natural justice: [The  Chief Justice.-Whether Counsel claimed that the  Chief Minister  could not be at all the Chairman of the  Committee or  that  the Chief Minister or anybody should  not  be  the Chairman or in the Committee if he had an interest]. I put it on the ground of interest only.  Voting took  place in  the  Committee and if the Chief Minister  had  not  been there might be a tie. (Quoted Rule 62 of the Standing Orders of  the  House of Commons to show that  the  Chief  Minister could not be the Chairman of the Committee of Privileges). I will now deal with and challenge the procedural aspect  of the  matter.   It was the House alone which had a  right  to refer  the matter of breach of privilege.  Rule 207  of  the Assembly clearly laid down that-the matter must be of recent occurrence.  In the House of Commons, it was accepted that " recent occurrence " could not go beyond ten days. The  privilege motion got precedence over  even  adjournment motions.  Then under r. 215, no time limit was fixed by  the House for the report to be submitted, as such the report was to be submitted within 815 a  month.   The  House had not extended  the  date  for  the submission of the Report by the Privileges Committee and  in the  absence  of  such extension, the  reference  not  being reported,  the Committee became " functus officio ". It  was against  this  that  the  petitioner  sought  to  move   the Honourable Court for prohibition of the proceedings  against him  and  for  the vindication of  his  fundamental  rights. Either  the Committee had become " functus officio " or  the non-submission  of  the report within  the  stipulated  time under  r.  215  first  proviso  could  only  mean  that  the Committee had nothing to recommend.  Regarding the procedure adopted, Rules 208 and 209 had to be taken together.   There were objections to the motion at the time it was moved.  The publication  of a true and full account could not be  termed unfaithful and perverted.  It was for the court to determine whether there has been a breach of privilege committed. [Sinha, J.-Is it our jurisdiction?  Is it not the  exclusive function of the Parliament ?] [The  Chief Justice.--What was a privilege and what was  not could be stated but whether there was a breach of  privilege or not it was for the House to say]. There  was no breach of privilege.  What we are claiming  is that  the  reporting of proceedings is not a  privilege  the House  can  claim.  Then my other point is that I  have  not published the expunged portion. [Daphtary,  Solicitor-General:  It  is  for  the  House   to decide]. Am  I not entitled to come to this Court as custodian of  my fundamental  rights, that powers are claiming to punish  and proceed against me and coerce me?  The question was  whether one  was  not  entitled to bring a petition  under  Art.  32 against it ? C.   K.  Daphtary,  Solicitor-General for India,  B.  K.  P. Sinha and S. P. Varma, for the respondents.  The question to

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be considered is how much of the portion which contained all the allegations fell under Art. 32.  The Article could  deal only  with  breach  of fundamental rights.  If  any  of  the powers or exercise of the 816 powers  and privileges and the defence and assertion of  any of  the  immunities involved, were a breach  of  fundamental rights  or  were something contrary to  fundamental  rights, even  then  the powers and the privileges were  good.   They could  not be considered bad as offending those rights.   It was  not open for someone to come and say that there was  no such power and immunity when such powers and immunities were provided  under  Art.  194(1)  and  was  made  part  of  the Constitution.   Every  citizen had been given the  right  of freedom  of  speech by the Constitution.  A  member  of  the House of a Legislature also enjoys that freedom by virtue of being a citizen.  Only rules and regulations made in  excess of legislative powers could be questioned and not the powers themselves.  Then there was the question of amendment of the Constitution  which was not affected by fundamental  rights. The  result would be that by amendments of the  Constitution fundamental  rights could be modified or removed.  That  was what  was done by amendments in Arts. 31(a) and 31(b)  where the rights were modified.  Article 194 was put there in  the Constitution  by  the  framers  simultaneously  with   other provisions.   It therefore had an equal footing  with  other provisions  of the Constitution and unless expressly  stated in  the provision itself could not be made subject to  other provisions   of   the  Constitution.   All  parts   of   the Constitution  were made by the same people and  were  equal. One could not be made more important than the other. [Subba Rao, J.-What was the idea then in giving a  paramount position to fundamental rights in our Constitution ?] They are fundamental to human beings. [Subba  Rao, J.-If the legislature had made a  law  defining its  powers  and privileges, could that law be valid  if  it infringed the fundamental rights?] The  Constitution  itself said that powers,  privileges  and immunities would be such as the Legislature would lay  down. Even such a law would not be against the fundamental rights. It  would  be  in  exercise of  the  constituent  law.   The Constitution makers                             817 thought it best that they would not define the powers of the Legislature  and  left  to the Legislature  to  decide  what powers it will have. [Subba Rao, J.-When a law was made by the Legislature it was subject  to  fundamental rights under Art. 19 but  when  the Legislature  made laws relating to its powers, etc., it  was not subject to Art. 19.  Was that not an anomalous situation ?] There  was  no  anomaly at  all.   The  Constitution  makers themselves  had  said  what powers  and  privileges  of  the Legislature were.  When it was so made as a law by virtue of powers  granted  by the Constitution then it  could  not  be subject  to fundamental rights.  That what the  Constitution itself had chosen to give was subject to fundamental  rights was not a sound argument. [Bhagwati, J.-The fundamental rights were on a high pedestal and any other provisions should not infringe them]. What  was constitutional was constitutional.   Unless  there were provisions made expressly subject to other provision or provisions  they  had all the same footing and were  on  the same plane.  Wherever the Constitution makers wanted to  say it,  they said so.  They were otherwise independent of  each

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other,  unless  stated  to the contrary.   No  part  of  the Constitution  could be said to be void and if one  part  was struck down then it would mean that the Constitution  itself was  being  struck down.  Article 194 had to  be  given  the status of Constitution law. The  first point was that powers, privileges and  immunities given  by Art. 194(3), were not subject to Art. 19.   Having established that, the second point that would arise would be what  were those powers and privileges.  What was the  ambit of those powers. In  England  there  were instances to show  that  breach  of privilege was treated as contempt of the House, disobedience of the Speaker’s order was contempt. (Refers to the standing order 62 of the House of Commons). 103 818 The argument advanced by the other side was fallacious. [Quotes from May’s Parliamentary Practice]. Standing  order  62  did  not  apply  to  the  Committee  of Privileges.   It applied to select committees  and  standing committees but not to the Committee of Privileges, which was a  sessional  committee appointed at the beginning  of  each session.  The House of Commons had powers to make rules from time  to time and regulate its own procedure.  All that  the court  had  to satisfy itself about was whether or  not  the House had the power to follow up a breach of privileges. [Bhagwati,  J.-Whether  power  to make rules  had  not  been within  limits.   In  an effort to  protect  immunities  and privileges   one  could  not  expand  the   privileges   and immunities]. All  the  precedents  of  the  House  of  Commons  were  not available dating back to 16th or 17th Century but there  was enough  in  May’s  Parliamentary  Practice  to  support  the argument.   So  long  as  the  debates  were  correctly  and faithfully reported the right to prevent publication was not enforced.   Journalists were present in the House  galleries by  the leave and licence of House and on sufferance.   What the  Speaker said was not to be published, it could  not  be published. [Subba  Rao, J.-What was the purpose of expunging a  portion of the proceedings ?] The  expunged portion was not deemed to have been stated  in the  House.  There was the case in the House of Lords  where an  expunged  portion  was published and  became  breach  of privilege.    The   privilege  of  the  House   to   control -publication  was  always  there  though  it  might  not  be exercised.  The House, was always zealous of its privileges. Even here in India, House privilege had been asserted at the time  when  Mr.  Vithalbhai  Patel  was  President  of   the Assembly.  There was heated debate on the question as to  in whom did the control of the precinct of the House vest,  the Viceroy  or  the President of the Assembly.   Mr.  Patel  to assert the Privilege of the House asked the galleries to  be cleared.   Privilege  was not ordinarily  exercised  if  the report was faithful and accurate.  But it was 819 necessary in order to ensure if the member could say  things without fear of being misreported.  Otherwise his freedom of speech was affected. It  was the power and privilege of the House of  Commons  to decide what was a breach or not.  The courts could go to the extent to find whether a particular privilege existed. [The  Chief Justice: If the privilege claimed was  excessive would it not affect fundamental rights ?] It depended on the wording  of the notice.  In the present case the motion  and

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Committee’s notice had to be read together.  It would not be correct  to give fundamental rights paramountcy  over  other parts of the Constitution. With reference to the allegations of  mala fide’.  What  was the’ mala fide’?  Who could deny it except the secretary  as the  ’mala fides’ charge was levelled against the  Committee of Privileges ? [Sinha, J.-Including the Chief Minister]. "  Mala Fides " was alleged against the  Committee.  [Sinha, J.-The petition says that the committee is influenced by the Chairman]. It  is not so.  I will confine myself to the petition  which says that the Committee of Privileges is proceeding  against the  petitioner    mala  fide’ in order  to  muzzle  him  and restrict him from expressing his views. The Chief Minister was the Chairman of the Committee.  There was  nothing to show nor was it claimed that the  member  of the Committee were all his party men.  There were members of other parties.  It was not alleged otherwise.  It could  not also be said that the members of the Committee were all  his adherents.   In the circumstances, what else could  be  done except  for the Secretary to deny the allegations  of  ’mala fide’ which was levelled against the committee appointed  by the  Speaker and the Chief Minister was Chairman  from  long before the matter under consideration was taken up. [The  Chief Justice.-What about the time lag?  No  step  was taken for one whole year and the allegation 820 is  that, when some articles were published, the matter  was taken up]. The action was taken after some time to enable the party  to correct itself. Sinha, J.-The point raised was that the Committee did not do anything for one year and then woke up one morning and  then pressed the matter]. How  is the matter carried any further by  these  arguments. Ultimately the House would judge and it was composed of  316 members.  Where was the question of  mala fide’?  No one  in the  House opposed the motion.  Where was the malice of  the Committee, whether it issued the notice immediately or after some time ? [Sinha, J.-The argument of the petitioner’s Counsel was that the  House  should have been presumed to  have  dropped  the matter  as  the House had not done anything at all  for  one year and all of a sudden the matter was taken up.  The point made  out  was  that but  for  the  petitioner’s  subsequent action, no notice would have been issued by the Committee]. They  had issued the notice stating that there was a  breach of privilege. [Sinha, J.-Had not the Committee become ’functus officio’ by lapse of time ?] No. the Committee had the power to launch the prosecution. It  did not do it immediately.  It waited for three or  four months. [Sinha,  J.-The very essence of these proceedings which  are of  a  summary  character  is  that  the  matter  should  be expeditiously dealt with]. Is  it not a matter of internal management ? The  House  had decided something and it was for the Committee to take  some action.  The House did not rescind the decision. With  reference  to  the  claim  that  rules  had  not  been followed: the standing Order 62 of the House of Commons  did not apply to the Privileges Committee which was a  sessional committee.   Then there was rule 215 about the  time  limit. What  was it that the House had done?  It appointed  one  of

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its committees to 821 inquire  and submit its report within a period.   The  House could  say  that it could extend the time  and  enlarge  the scope of time limit. [The Chief Justice.-But as long as the rule stand.........]. The  nature  of  the  rule had to  be  gone  into.   It  was something  fixed  by  the  House for  the  guidance  of  the Committee.   The  rules  were made for the  benefit  of  the House.  It was a matter for themselves, not for the  benefit of an outsider to seek to enforce it. On the subject of malice, if something was lawful it did not matter how much malice there was, the motive of malice could not make unlawful what was otherwise lawful. Malice imputed was that the Chief Minister was the  Chairman of the Committee.  He might not be there.  The Speaker might appoint  some one else.  How can then one presume  that  the committee  would  act maliciously ? There  were  responsible persons holding, responsible positions. H.   N.  Sanyal, Additional Solicitor-General of India,  for the  Attorney-General  for India, cited the  powers  of  the legislature of Nova Scotia and the position there, summed up the  law relating to powers and privileges’ Basdeva  Prasad, in  reply.   The main fact to be borne in mind is  that  the Parliament  or  the Legislature in India was not  really  as sovereign  as the’ British Parliament which was  supreme  in all matters. Article 194(1) is not a repetition of Art. 19(1)(a), but are abridgement  of the freedom of expression and, speech  which would  have otherwise been available to’ the members of  the legislature as ordinary citizens. Article  194(3)  itself does not  provide  a  constitutional exemption to the freedom guaranteed under Art. 19(1)(a)  and Art. 194(3) is subject to the provisions of the Constitution in Part III and the other Art. 21. Article 194(3) does not import into the Indian  Constitution the powers, privileges and immunities in their entirety,  as for  instance the right to prohibit  publication  altogether could not be imported. 822 It had already been made clear that Art. 194(1) was  subject to  the provisions of the Constitution.  The point was  that Art. 194(3) in its entirety was subject to the Constitution. Article 32 itself was very significant as to what rights and powers  of  Part III were ]lore important.  Writs  could  be issued  for breach of fundamental rights or other  violation of rights, including powers of taxation. Therefore,  Art.  194 did not enlarge but  it  abridged  the scope  of  application of Art. 19(1)(a), since it  was  also made subject to the rules and standing orders that might  be made by the House. [The  Chief Justice.-Whether Parliament could not under  the residuary  powers  of  legislation,  make  a  law   imposing restrictions  on  the freedom of speech of  members  of  the State  Legislature.   It was pointed that Art. 19(1)  was  a primary right; Art. 19(2) cut it to some extent; Art. 194(1) also  made it subject to the provisions of the  Constitution but  the  freedom  of speech was  further  restricted.   The Constitution  itself appeared to provide those  limitations. Would not then Art. 194(1) read with Art. 19(1) equally lead to an anomaly?]     Article  194(2)  flowed from Art. 194(1).  If  Art.  194 imported  powers, privileges and immunities  wholesale  from the  House  of Commons of Great Britain, how could  they  be exercised  ?  There  was  Art.  208.   Any  other  form   of

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restriction arising from the exercise of those powers  would be unreasonable restriction. What  Art.  194  gave  powers,  privileges  and  immunities. Article  208  gave  the  power to  punish,  subject  to  the provisions  of the Constitution.  It could not be said  that the  British House of Commons had the power to punish a  man twice.   A man could not be held guilty of privilege  by  an ordinary  court of law and at the same time by the House  of Commons.  But here Art. 208 and Art. 194 came to be  subject to  Art.  21 in that no one could be  deprived  of  personal liberty with. out a procedure of law. [The Chief Justice.-But then you have not come to the  stage of Art. 21 at all.  Your liberty has not been taken away]. 823 My  liberty is threatened.  The notice says there  is  prima facie  case.  Then there is the allegation of mala fide  and bias.   I  refer to the claim of the House to  be  the  Bole Judge of its privileges.  I say that the, must be subject at least to constitutional rights. [The  Chief  Justice.-If Art. 194(3)  incorporated  all  the privileges, then could not that privilege itself be taken as procedure established by law ?] Article  21  never  contemplated  that  there  would  be  no procedure.   Supposing  none  of them  was  followed  and  a warrant was issued, could not that be questioned in a  court of law ? [The  Chief  Justice.-If the man is arrested then  we  shall consider]. It  would  then  be subject to  the  jurisdiction  of  their Lordships.   Article  21 guaranteed that there would  be  no interference with the personal liberty of the citizen except according  to a procedure enacted by law.  There must  be  a substantive law. and such law must be valid. If your Lordships hold with me that fundamental rights  were superior,  then  Art. 194 would have to be  read  with  Art. 19(1)  and the American position would help.  If  the  House was the sole Judge then neither Art. 21 nor Art. 22 would be available. [The  Chief Justice.-If one could publish anything that  was said  in the House there would be no meaning  in  expunging. Being expunged,, meant it was not said]. Yes, but will not the House take notice?  It is the right of the people to know what had been said and what was expunged. Expunction  would  be for the purposes of  official  record. Even  in  Hansard, the expunged portion is not  removed  but only red lines put over it. [Sinha, J.-The argument advanced was that under the language of Art. 194(2) you could not publish anything at all]. Yet, if the claim of total prohibition was accepted, then  I would  be on velvet.  But would that position be allowed  in India ? The House of Commons debated 824 on  the  Public, and I have a right to  publish  what  takes place. [Sinha, J.-You claim a total right to publish]. Yes,  total  right to publish whatever takes  place  in  the House.   I will not claim I have a right to publish  garbled and unfaithful report, I have a right to publish a  faithful report  of  what  was said or done.   The  argument  of  the learned  Solicitor-General  was  that Art.  194(3)  was  not subject  to  the  provisions of the  Constitution.   In  the Constitution,  the power was given to the President to  make all laws and regulations in Part D States and the  provision did  not  say   subject  to  fundamental  rights  Could  the President  make  laws that would have the effect  of  taking

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away fundamental rights or that it was said that citizens in Part D states aid not have any fundamental rights?  All  the provisions of the Constitution had to be read in relation to the chapter on fundamental rights. In the absence of law, the power to make rules could come in conflict with fundamental rights.  Law could mean a power or authority. [Subba  Rao,  J.- Under Art. 194(3), the  legislature  of  a State  had all the powers, privileges and immunities of  the House  of  Commons.   One  of such  powers  was  to  prevent publication  of a garbled version.  If in exercise  of  that power,  the  legislature  made an order  asking  someone  to appear at its bar, would that order come within the  meaning of law ?] "  Law  included order, regulation  or  notification."  [The Chief  Justice.-What  is the meaning of an order ?  Does  it mean an executive order ?] It  is  an  executive  order.   Order  flowing  from  public authority.  The definition of the State included Government, Parliament, Legislature and local authority.  It would be an order  passed  by authority.  Article 21  would  cover  acts under  the enacted law.  Here, a Committee of the House  was proceeding  to take action to deprive the petitioner of  his personal  liberty.  What was the remedy?  What could be  the procedure? [The Chief Justice.-It would be argued that the Constitution itself was law.  It Deed not be enacted by 825 the Legislature.  If Art. 194 imported all the privileges of the  House of Commons, then no question arose at all.   That itself prescribed the powers and privileges]. [Subba  Rao, J.-If in exercise of such a power an order  was made  by  the legislature, would it not be  law  within  the meaning of its definition in the Constitution ?] Executive order will be included in the expression law ". [Subba  Rao,  J.-If  an order, which would be  law  as  thus defined,  be  made, would it be valid if  it  infringed  the fundamental rights ?] [The  Chief Justice.-The State could make a law relating  to contempt of Court.  Supposing the State did not make such  a law, the Court could still haul up people for contempt.  Was not there inherent power ?] The High Courts had the power to punish.   But  the  question of  punitive  punishment  would arise. [The  Chief Justice.-Fundamental rights were fundamental  in the  sense  that  human  rights  which  were  valuable  were fundamental.  The other provisions of the Constitution could be equally efficacious]. My  point  was that any law or action had to be  within  the constitutional rights guaranteed by the Constitution.   Even the right to punish would have to be within the ambit of the fundamental  rights  chapter.  If anyone was  committed  for contempt of court which was not fully established, could  he not  seek  redress ? Justice ’Was not a  cloistered  virtue. Could be not then claim a remedy under the ordinary law ? [Subba  Rao, J.-A law made by the Legislature in respect  of privileges  would be subject to fundamental rights.  If  the law  was  not  made,  the privileges  were  not  subject  to fundamental rights]. [Sinha,  J.-This will be a good reason for  the  Legislature not to make law at all]. Article  194(3) bad to be interpreted as coming  within  the scope of fundamental rights.  The first part was  admittedly so.  The second part was equally subject to the  fundamental rights by the very necessary implication.

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104 826 Privileges  did come within judicial review.  They could  go into  the nature of privilege and on the given facts  decide their constitutional validity.                        Cur.  Adv.  Vult. 1958.   December 12.  The Judgment of Das, C. J.,  Bhagwati, Sinha  and Wanchoo, JJ., was delivered by Das, C.  J.  Subba Rao, J., delivered a separate Judgment. DAS,  C.  J.-The petitioner before us, who is a  citizen  of India, is by profession a journalist and has at all material times  been  and  is  still working as  the  editor  of  the Searchlight., one of the well-known English daily newspapers having a large circulation in Patna and other places in  the State  of Bihar.  The first respondent has at  all  material times  been and is the Chief Minister of the State of  Bihar and the Chairman of the Committee of Privileges of the Bihar Legislative Assembly.  The Committee of Privileges has  been impleaded  as  the  second respondent as if it  is  a  legal entity entitled to sue or to be sued in its name.  The third respondent  is called and described as the Secretary to  the Bihar  Legislative Assembly as if it also is a legal  entity but  the incumbent of that office has not been named in  the cause title.  As no objection has been taken to the way  the second  and  the third respondents have  been  impleaded  as parties nothing further need be said about the propriety  of such procedure. This  petition  under  Art. 32 of  the  Constitution  raises several important questions of far reaching effect.  It came to  be filed in the following circumstances: In  his  speech made  in the Bihar Legislative Assembly on May 30, 1957,  in course of the general discussion on the Budget for the  year 1957-58 Shri Maheshwar Prasad Narayan Sinha, a Congress mem- ber of that Assembly, delivered what has been described as " one  of  the  bitterest attacks against the  way  the  Chief Minister  was conducting the administration of the State  ". The Chief Minister, who also belongs to the Congress  party, is  the first respondent before us.  Shri  Maheshwar  Prasad Narayan Sinha 827 referred  to the way the Chief Minister, according  to  him, was  being guided by the advice of a gentleman who was  well understood by all to be Shri Mahesh Prasad Sinha, who was an ex-minister  of  Bihar  and had been defeated  at  the  last general   elections.    The  member  referred,   as   common knowledge, to the activities of Shri Mahesh Prasad Sinha  in the selection of Ministers and the formation of the Ministry as  also  to  the  glaring  instances  of  encouragement  of corruption  by the Government by, amongst other things,  the transfer  of  a Muslim District Engineer from  Darbhanga  to Muzaffarpur  for exploiting that officer’s influence on  the Muslim voters of Muzaffarpur.  Similar reference was made to the   case   of   a  District  and   Sessions   Judge   who, notwithstanding the recommendation for his discharge made by the Chief Justice after a regular judicial enquiry had  been held  by  a  High  Court  Judge,  was  ordered  only  to  be transferred  to  another place on the intervention  of  Shri Mahesh  Prasad  Sinha.  The member strongly  criticised  the appointment  of Shri Mahesh Prasad Sinha as the Chairman  of the  Bihar  State Khadi Board as having been  made  only  to enable him to stay in Patna where residential  accommodation at Bailey Road had been procured for him.  The  distribution of  portfolios  amongst the ministers did  not  also  escape strictures from this member.  There is no dispute-indeed  it is  admitted  in paragraph 6 of  the  present  petition-that

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immediately  after  Shri  Maheshwar  Prasad  Narayan   Sinha referred  to the question of appointment of the Chairman  of the  Khadi  Board, a point of order was  raised  by  another member  of the Assembly, Shri Satendra Narain  Agarwal,  and the Speaker stated as follows:- " Mahesh Babu ke Sambandh Me Jitni Baten Kahi Gain Uske Bare Me Maine Kah Diya Ki Us Tarah Ki Bat Ko Proceeding Se  Nikal Diya  Jayega Lekin State Khadi Board Ke Chairman Ke Bare  Me Jo  Kuch Kahenge We Karyawahi Me Rahenge or Iske  Bishai  Me Manniya  Sadasya Ko Kahane Ka Hak Hai.  "  which  translated into English means roughly:-  " I have already ruled with reference to whatever has  been said about Mahesh Babu that such words 828 would be expunged from the proceedings but that whatever may be  said  with reference to the Chairmanship  of  the  State Khadi  Board will remain in the proceedings and the  Hon’ble member has the right to speak on that matter.  " In  its  issue of May 31,1957, the Searchlight  published  a report of the speech of Shri Maheshwar Prasad Narayan  Sinha which  is  set out in paragraph 2 of the petition  and  also reproduced in what has been called "annexure B " in annexure III  to the petition.  It will suffice, for the purposes  of our  decision of this petition, to set out the opening  part of the report which reads as follows:- BITTEREST ATTACK ON CHIEF MINISTER M.   P. Sinha’s choice as Khadi Board chief condemned. Maheswar Babu’s scathing criticism of Government.                  (By our Assembly Reporter)                      Patna, May 30. One  of  the  bitterest attacks against the  way  the  Chief Minister was conducting the administration of the State  was made  in  the Bihar Assembly today by Mr.  Maheshwar  Prasad Narayan  Singh, a Congress member who said that contrary  to all  principles of good Government, the Chief  Minister  was guided by the advice of a gentleman who had been defeated at the  election and stood condemned before the bar  of  public opinion.   He also named the gentleman by whose  advice  the Chief Minister was allegedly running the administration. In  this  sixty-minute  speech  which  was  punctuated  with frequent applause by Congress as well as Opposition benches, Mr. M. P. N. Singa said that corruption 829 could  not  be eradicated from Government unless  the  Chief Minister  refused  to  be  influenced  by  such  undesirable elements. He  said it was common knowledge that (luring the period  of the  formation  of the new ministry which took  unduly  long time many aspirants for Ministership and Deputy Ministership went to a defeated Minister for pleading their case so  that the  defeated Minister concerned could influence  the  Chief Minister." It  has  not  been denied by the learned  advocate  for  the petitioner that the references to the gentleman who had been defeated  at  the  election  and  was  said  to  have  stood condemned and by whose advice the Chief Minister (respondent 1)  was alleged to be guided, were intended to be  and  were understood  by  the public to be references to  Shri  Mahesh Prasad  Sinha, all reference to whom had, as  herein  before mentioned, been directed by the Speaker to be expunged  from the proceedings. On June 10, 1957, one Shri Nawal Kishore Sinha, a member  of the   Bihar  Legislative  Assembly,  gave  notice   to   the Secretary, Bihar Legislative Assembly (respondent 3) that he wanted to raise a question of the breach of privilege of the

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House.  That notice was in the following terms                 "To                        The Secretary,                        Bihar Legislative Assembly,                        Patna.                                    The 10th June, 1957. Sir,      I  give  notice  that I want  to  raise  the  following question involving a breach of privilege of the House, after question hour today. "  That  the  Hon’ble Speaker ordered  that  all  references regarding  Shri Mahesh Prasad Sinha,  Ex-Industry  Minister, made in the speech of Shri Maheshwar Prasad Narain Sinha  on the  30th May, 1957, except that of his appointment  as  the Chairman of the Khadi 830 Board, be expunged but in spite of this the " Searchlight ", a local daily, published the entire speech of Shri Maheshwar Prasad  Narayan  Sinha, containing all  references  to  Shri Mahesh  Prasad  Sinha  which were ordered  to  be  expunged. Hence there has been a breach of the privilege of the House. A  copy  of the " Searchlight ", dated the 31st of  May,  is filed herewith.                      Yours faithfully,                      Nawal Kishore Sinha, M.L.A." An  account of the proceedings that took place in the  House on  June 10, 1957, appears from " annexure D "  in  annexure III to the petition.  It will appear from that account  that after  Shri Nawal Kishore Sinha had asked for leave to  move his motion, the Speaker read out to the members the relevant rule  as to the procedure that has to be followed  when,  on such leave being asked for, an objection is or is not taken. Thereafter,  as no objection was raised in  accordance  with that rule, the Speaker declared that the mover had  received the  permission of the House to move his motion.   One  Shri Karpuri Thakur having remarked that he could express no view without  knowing  what had been printed and  what  had  been directed not to be printed, the Speaker read out the text of the notice sent in by Shri Nawal Kishore Sinha set out above which referred to the issue of the Searchlight in  question. As Shri Karpuri Thakur was apparently satisfied by this, the Speaker then requested Shri Nawal Kishore Sinha to move  his resolution.  The account shows that Shri Nawal Kishore Sinha then  said "Sir, I beg to move: that the matter be  referred to  the  Privilege  Committee of the  House".  No  amendment having  been moved, the Speaker, according to the report  of the  proceedings  set  forth in " annexure D  "  ’  put  the question  to  the louse and, nobody objecting to  the  same, declared the resolution carried. It  appears that the Committee of Privileges (respondent  2) did not take up the consideration of the matter promptly and while the mattet was pending before the 831 Committee  sharp  exchanges of charges and  counter  charges took  place  between the petitioner and the  Chief  Minister (respondent  1)  as are evidenced by the extracts  from  the issues of the Searchlight of May 27, 28 and 31, 1958.  There appears to have been a debate on June 5, 1958, for two hours in the Bihar Legislative Assembly on the alleged failure  of the  State Government to protect the petitioner  from  being assaulted  by  goondas.   It is said  that  these  exchanges roused  the  Committee  of  Privileges  from  slumber   into activity  on  August 10, 1958, when it passed  a  resolution which,  according  to annexure II to the  petition,  ran  as follows --

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"The question is that Shri M. S. M. Sharma, Editor and  Shri Awadhesh  Kumar  Tiwari,  Printer and  Publisher  of  the  " Searchlight  " be called upon to show cause why  appropriate action be not taken against them by reason of the commission of  a breach of privilege in respect of the Speaker  of  the Bihar  Legislative  Assembly  and  the  Assembly  itself  by publishing   a  perverted  and  unfaithful  report  of   the proceedings  of the Assembly relating to the speech of  Shri Maheswar  Prasad Narain Sinha, M.L.A., expunged portions  of whose speech were also published in derogation to the orders of  the Speaker passed in the House on the 30th  May,  1957, and that they be further directed to be in attendance at the meeting  or meetings of the Committee on such date or  dates as  may be fixed by the Committee for consideration  of  the case against them." On August 18, 1958, the petitioner was served with a  notice dated August 14,1958, issued by respondent 3, the  Secretary to   the  Bihar  Legislative  Assembly,  calling  upon   the petitioner  to show cause, on or before September  8,  1958, why appropriate action should not be recommended against him for  breach of privilege of the Speaker and the Assembly  in respect  of the offending publication.  It is necessary,  in view of one of the points taken by the learned advocate  for the  petitioner,  to set out the full text  of  this  notice which was thus worded:- 832 "Government of Bihar, Legislative Assembly Secretariat. Confidential                      No. 3538-1A. From Shri Enayetur Rahman, B.A., B.L., Secretary to the Legislative Assembly. To Shri M. S. M. Sharma, Editor, " The Searchlight Searchlight Press, Patna.                            Patna, August 13/14, 1958. Whereas  a  question involving breach of  privilege  of  the Bihar Legislative Assembly arising out of the publication of a  news item in the Searchlight, dated the 31st  May,  1957, under the caption " Bitterest attack on Chief Minister", was raised in the Assembly by Shri Nawal Kishore Sinha, M. L. A. (Patna) on the 10th June, 1957, and whereas the same, having been   referred   to  the  Committee   of   Privileges   for examination, investigation and report, was considered by the Committee which has been pleased to find a prima facie  case of breach of privilege made out against you. You are hereby directed to show cause, if any, on or  before the  8th September, 1958, why appropriate action should  not be  recommended against you for breach of privilege  of  the Speaker and the Assembly.  Please also take notice that  the question  will come up for examination by the  Committee  on the  8th September, 1958, at 11 am. in the Official  Sitting Room  (Ground Floor) of the Assembly Buildings,  Patna,  and thereafter on such day or days and at such time and 833 place  as the Committee may from time to time appoint.   You are also informed that if the matter comes to evidence,  you can,  if  you  so choose, adduce  evidence,  both  oral  and documentary,  relevant  to  the issue,  and  you  must  come prepared with the same on the date fixed in this behalf. Sd. Enayetur Rehman, Secretary to the Legislative Assembly." Finding  that things had begun to move and  apprehending  an adverse  outcome of the enquiry to be held by the  Committee

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of Privileges (respondent 2), the petitioner moved the  High Court  at  Patna under Art. 226 for  an  appropriate  writ;, order   or   direction  restraining  and   prohibiting   the respondents   from  proceeding  further  with  the   enquiry referred to above.  It appears that on August 29, 1958,  the Art. 226 petition came up for preliminary hearing and  after it had been urged for a day and a half before the High Court for admission, the petitioner on September 1, 1958, withdrew that  petition  allegedly  "  with  a  view  to  avail   the fundamental  rights  granted  to him under Art.  32  of  the Constitution." The  present petition under Art. 32 of the Constitution  was filed  on September 5, 1958.  The petitioner  contends  that the said notice and the proposed action by the Committee  of Privileges   (respondent   2)  are  in  violation   of   the petitioner’s  fundamental  rights to freedom of  speech  and expression under Art. 19(1)(a) and to the protection of  his personal liberty under Art. 21 and the petitioner claims  by this petition to enforce those fundamental rights. An affidavit in opposition affirmed by Shri Enayatur Rahman, the  present  incumbent of the office of respondent  3,  has been  filed  on  behalf of the  respondents  wherein  it  is maintained  that  the  report  contained  in  the  offending publication was not in accordance with the authorised report of  the proceedings in the House in that it  contained  even those  remarks which, having been, by order of the  Speaker, directed   to  be  expunged,  did  not  form  part  of   the proceedings. 105 834 It  is  claimed that generally speaking proceedings  in  the House are not in the ordinary course of business meant to be published  at  all  and that under no  circumstances  is  it permissible to publish the parts of speeches which had  been directed to be expunged and consequently were not  contained in  the official report.  Such Publication is said to  be  a clear  breach of the privilege of the Legislative  Assembly, which is entitled to protect itself by calling the  offender to book and, if necessary, by meting out suitable punishment to  him.   This claim is sought to be founded  on  the  pro- visions  of cl. (3) of Art. 194 which confers on it all  the powers,  privileges and immunities enjoyed by the  House  of Commons of the British Parliament at the commencement of our Constitution. Learned  advocate  for  the  petitioner  relies  upon   Art. 19(1)(A)  and contends that the petitioner, as a citizen  of India, has the right to freedom of speech and expression and that, as an editor of a newspaper, he is entitled to all the benefits  of  freedom  of  the  Press.   It  is,  therefore, necessary  to examine the ambit and scope of liberty of  the Press generally and under our Constitution in particular. In  England freedom of speech and liberty of the Press  have been secured after a very bitter struggle between the public and  the Crown.  A short but lucid account of that  struggle will  be  found narrated in the  Constitutional  History  of England  by Sir Thomas Erskine May (Lord Farnborough),  Vol. 11, ch.  IX under the heading " Liberty of Opinion ". In the beginning the Church is said to have persecuted the  freedom of  thought in religion and then the State suppressed it  in politics.   Matters  assumed  importance  when  the  art  of printing came to be developed.  The Press was subjected to a rigorous censorship.  Nothing could be published without the imprimatur of the licenser and the publication of unlicensed works  was  visited  with  severe  punishments.   "Political discussion  was silenced by the licenser, the Star  Chamber,

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the dungeon, the pillory, mutilation and branding." Even  in the  reign of Queen Elizabeth printing was interdicted  save in  London,  Oxford  and Cambridge. "  Nothing  marked  more deeply the tyrannical spirit 835 of  the first two Stuarts than their barbarous  persecutions of authors, printers and the importers of prohibited  books: nothing  illustrated more signally the love of freedom  than the   heroic   courage  and  constancy  with   which   those persecutions  were  borne " (1).  There was  no  mention  of freedom of speech or of liberty of the Press in the Petition of  Rights  of 1628.  The fall of the Star  Chamber  augured well for the liberty of the Press, but the respite was short lived,  for the Restoration brought renewed trials upon  the Press.  The Licensing Act (13 & 14 Chs. 11 c. 33) placed the entire  control of the Press in the Government.  Liberty  of the  Press  was  interdicted  and even  news  could  not  be published  without  licence.  Then came  the  Revolution  of 1688;  but even in the Bill of Rights of 1688 there  was  no mention of freedom of speech or of liberty of the Press.  In 1695,  however, the Commons refused to renew  the  Licensing Act  and  the lapse of that Act marked the  triumph  of  the Press,  for  thenceforth  the  theory  of  free  Press   was recognised  and  every writing could  be  freely  published, although at the peril of the rigorous application of the law of   libel.    William  Blackstone  in  his  4th   Book   of Commentaries published in 1769 wrote at p. 145:- " The liberty of the Press is indeed essential to the nature of  a  free State; but this consists in laying  no  previous restraints upon publication, and not in freedom from censure for  criminal matter when published.  Every free man has  an undoubted right to lay what sentiments he pleases before the public;  to  forbid this, is to destroy the freedom  of  the Press; but if he publishes what is improper, mischievous  or illegal, he must take the consequences of his own temerity." Halam in his Constitutional History of England expresses the same  view  by  saying that liberty of  the  Press  consists merely  in exemption from the licenser.  To the same  effect are  the observations of Lord Mansfield, C. J., in  King  v. Dean of St. Asaph (2).  The liberty of the Press, therefore, primarily consists in  (1) May’s  Constitutional History of England, Vol.  ii  PP. 240-41. (2)  (1784) 3 Tr. 428. 836 printing  without  any  previous  license  subject  to   the consequences   of  law.   It  is,  in  substance,   a   mere application  of  the general principle of the rule  of  law, namely,  that  no man is punishable except  for  a  distinct breach  of  the  law (1).  It was thus, as  a  result  of  a strenuous  struggle,  that the British people have  at  long last secured for themselves the greatest of their liberties- the liberty of opinion. In  the  United  States of America  freedom  of  speech  and liberty  of the Press have been separately and  specifically safeguarded  in the Constitutions of most of  the  different States.  Portions of the Constitutions of the 48  federating States,  relevant  for our purpose, have been  collected  in Cooley’s  Constitutional Limitations, Vol. 11, ch.  12,  pp. 876-880.   Fifteen States, only, namely,  Alabama,  Arizona, Colorado,   Idaho,  Illinois,  Indiana,  Kansas,   Missouri, Montana, Nebraska, North Dakota, Oregon, South Dakota, Wash- ington  and Wyoming do not specifically refer to liberty  of the Press but content themselves by providing for freedom of speech.   The  Constitutions of the rest of  the  federating

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States  separately and ’Specifically mention liberty of  the Press in addition to freedom of speech.  The first Amendment of the federal Constitution of the United States, which  was ratified  in  1791, provides that " Congress shall  make  no law...........  abridging  the freedom of speech or  of  the Press  ".  The  Fifth and  the  Fourteenth  Amendments  also protect  people  from  being deprived of  life,  liberty  or property without due process of law. Prior  the advent of our present Constitution, there was  no constitutional  or statutory enunciation of the  freedom  of speech of the subjects or the liberty of the Press.  Even in the famous Proclamation of Queen Victoria made in 1858 after the British power was firmly established in India, there was no reference to the freedom of speech or the liberty of  the Press, although it was announced that " none be in any  wise favoured,  none  molested or disquieted by reason  of  their Religious  Faith  or Observances; but that all  shall  alike enjoy the equal and impartial protection  (1) Dicey’s Law of the Constitution, 9th Edn., p. 247. 837 of  the law;........... Indeed during the British period  of our  history  the  Press as such had no  higher  or  ’better rights  than  the  individual citizen.  In  Arnold  v.  King Emperor (1) which was a case of an appeal by the editor of a newspaper against his conviction for criminal libel under s. 499  of the Indian Penal Code, Lord Shaw of  Dunfermline  in delivering  the  judgment  of the  Privy  Council  made  the following observations at p. 169:- " Their Lordships regret to find that there appeared on  the one  side in this case the time-worn fallacy that some  kind of  privilege  attaches to the profession of  the  Press  as distinguished  from the members of the public.  The  freedom of the journalist is an ordinary part of the freedom of  the subject, and to whatever lengths the subject in general  may go, so also may the journalist, but, apart from statute law, his   privilege   is   no  other   and   no   higher.    The responsibilities   which   attach  to  his  power   in   the dissemination  of printed matter may, and in the case  of  a conscientious journalist do, make him more careful; but  the range of his assertions, his criticisms, or his comments, is as wide as, and no wider than, that of any other subject, No privilege attaches to his position." Then  came  our  Constitution  on  January  26,  1950.   The relevant portions of Art. 19, as it now stands and which  is relied on, are as follows:- " 19 (1) All citizens shall have the right  (a) to freedom of speech and expression;  ........................................................  ........................................................ (2) Nothing in sub-clause (a) of clause (1) shall affect the operation  of  any existing law, or prevent the  State  from making  any  law, in so far as such law  imposes  reasonable restrictions  on the exercise of the right conferred by  the said  sub-clause  in the interests of the  security  of  the State, friendly relations with foreign States, public order, decency  or morality, or in relation to contempt  of  court, defamation or incitement to an offence." (1)  (1914) L.R. 41 I.A. 149. 838 It  will  be  noticed that this Article  guarantees  to  all citizens  freedom  of  speech and expression  but  does  not specifically or separately provide for liberty of the Press. It has, however, been held that the liberty of the Press  is implicit  in the freedom of speech and expression  which  is conferred on a citizen.  Thus, in Romesh Thappar v. State of

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Madras  (1) this Court has held that freedom of  speech  and expression includes the freedom of propagation of ideas  and that  freedom is ensured by the freedom of circulation.   In Brijbhushan v. The State of Delhi (2) it has been laid  down by  this  Court that the imposition of pre-censorship  on  a journal  is a restriction on the liberty of the Press  which is  an essential part of the right to freedom of speech  and expression  declared by Art. 19(1)(a).  To the  like  effect are the observations of Bhagwati, J., who, in delivering the unanimous judgment of this Court in Express Newspapers  Ltd. v. Union of India(1) said at page 118 that freedom of speech and expression includes within its scope the freedom of  the Press.  Two things should be noticed.  A non-citizen running a  newspaper  is not entitled to the  fundamental  right  to freedom  of  speech and expression  and,  therefore,  cannot claim, as his fundamental right, the benefit of the  liberty of the Press.  Further, being only a right flowing from  the freedom  of speech and expression, the liberty of the  Press in  India  stands on no higher footing than the  freedom  of speech  and  expression of a citizen and that  no  privilege attaches  to the Press as such, that is to say, as  distinct from  the  freedom  of the citizen.  In  short,  as  regards citizens   running  a  newspaper  the  position  under   our Constitution  is  the  same  as it  was  when  the  Judicial Committee decided the case of Arnold v. The King Emperor (4) and as regards non-citizens the position may even be worse. The  petitioner claims that as a citizen and an editor of  a newspaper he has the absolute right, subject, of course,  to any  law  that may be protected by el. (2) of  Art.  19,  to publish a true and faithful report of the publicly heard and seen proceedings of Parliament or (1)  [1950] S.C.R. 594. (3)  [1959] S.C.R. 12. (2)  [1950] S.C.R. 605. (4)  (1914) S.C.R. 41 I.A. 149. 839 any   State  Legislature  including  portions  of   speeches directed to be expunged along with a note that that  portion had been directed to be so expunged.  The respondents before us  do not contend that the petitioner’s freedom  of  speech and  expression is confined only to the publication  of  his own sentiments, feelings, opinions, ideas and views but does not  extend  to  the publication of news or  of  reports  of proceedings  or  of  views  of  others  or  that  such  last mentioned publications are not covered by the interpretation put  upon the provisions of Art. 19(1)(a) by this  Court  in the  three decisions referred to above or that the  case  of Srinivasa  v.  The State, of Madras  (1),  which  apparently supports  the  petitioner,  was wrongly  decided.   For  the purposes  of  this case, therefore, we are relieved  of  the necessity  for  examining the larger questions and  have  to proceed  on  the  footing that the  freedom  of  speech  and expression  conferred  on  citizens includes  the  right  to publish  news and reports of proceedings in public  meetings or  in Parliament or State Legislatures.   The  respondents, however,  deny  that the petitioner has the  absolute  right broadly formulated as here in before mentioned.  They  urge, inter alia, that under Art. 194(3) Parliament and the  State Legislatures  have  the powers,  privileges  and  immunities enjoyed  by the House of Commons of British  Parliament  and those  powers,  privileges and immunities prevail  over  the freedom of speech and expression conferred on citizens under Art. 19(1)(a). Besides  a  few  minor miscellaneous points  raised  by  the learned  advocate  for the petitioner, which will  be  dealt

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with  in  due course, two principal points  arising  on  the pleadings  have  been  canvassed  before  us  and  they  are formulated thus:- I.   Has the House of the Legislature in India the privilege under  Art. 194(3) of the Constitution to prohibit  entirely the  publication of the publicly seen and heard  proceedings that  took  place  in  the House or  even  to  prohibit  the publication  of that part of the proceedings which had  been directed to be expunged ? II.  Does the privilege of the House under Art. (1)  A.I.R. (1951) Mad. 70. 840 194(3) prevail over the fundamental right of the  petitioner under Art. 19(1)(a) ? Re I: Article 194, on which depends our decision not only on this point but also on the next one, may now be set out:-  "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 the 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." This Article, which applies  to  the State  Legislatures and the members and committees  thereof, is  a  reproduction,  mutatis mutandis, of  Art.  105  which applies  to  both Houses of Parliament and the  members  and committees   thereof.   It  is  common  ground   that   the. Legislature of the State of Bihar has not made any law  with respect  to  the powers, privileges and  immunities  of  the House  of the Legislature as enumerated in entry 39 of  List II  of  the  Seventh Schedule to the  Constitution  just  as Parliament  has  made  no law with respect  to  the  matters enumerated in entry 74 of List 841 I of that Schedule.  Therefore under the latter part of  cl. (3)  of Art. 194 the Legislative Assembly of Bihar  has  all the  powers, privileges and immunities enjoyed by the  House of  Commons at the commencement of our Constitution.   What, then,  were  the powers, privileges and  immunities  of  the House of Commons which are relevant for the purposes of  the present petition ? Parliamentary  privilege  is  defined as " 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 " (1).   According to  the same author " privilege, though part of the  law  of

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the  land,  is  to a certain extent an  exemption  from  the ordinary  law  ". The privileges of Parliament  are  of  two kinds, namely, (i) those which are common to both Houses and (ii)  those which are peculiar either to the House of  Lords or  to  the  House of Commons (2 ). The  privileges  of  the Commons, as distinct from the Lords, have been defined as  " the  sum of the fundamental 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 (3).     Learned Solicitor General appearing for the respondents claims  that the Legislative Assembly, like the House of Commons, has the power  and privilege, if it so desires, to prohibit  totally the  publication of any debate or proceedings that may  take place  in  the  House  and  at  any  rate  to  prohibit  the publication  of  inaccurate or garbled versions of  it.   In other words, it is claimed that the House of Commons has the power  and  privilege  to prohibit the  publication  in  any newspaper  of  even  a  true  and  faithful  report  of  its proceedings and certainly the publication of any (1)  Sir  Thomas Erskine May’s Parliamentary Practice,  16th Edn., Ch. III, P. 42. (2)  Halsbury’s  Laws  of England, 2nd Edn., Vol.  24,  Art. 698, P. 346. (3)  Redlich  and  Ilbert  on  Procedure  of  the  House  of Commons, Vol. 1, P. 46. 106 842 portion  of speeches or proceedings directed to be  expunged from the official record. As  pointed out in May’s Parliamentary Practice, 16th  Edn., p. 151, in the early days of British History the maintenance of  its privileges was of vital importance to the  House  of Commons.   They were necessary to preserve its  independence of  the  King  and  the  Lords  and,  indeed,  to  its  very existence.  The privileges of the House of Commons have been grouped  under two heads, namely, (1) those demanded of  the Crown  by  the  Speaker  of the  House  of  Commons  at  the commencement  of each Parliament and granted as a matter  of course and (2) those not so demanded by the Speaker.   Under the  first heading come (a) freedom from arrest (claimed  in 1554),  (b)  freedom of speech (claimed in  1541),  (c)  the right  of access to the Crown (claimed in 1536) and (d)  the right of having the most favourable construction placed upon its proceedings. The second head comprises (i) the right  to the  due composition of its own body, (ii) regulate its  own proceedings,  (iii) the right strangers, (iv) the  right  to prohibit  publication  of its debates and (v) the  right  to enforce observation of its privileges by fine,  imprisonment and  expulsion  (1).  Admonition and  reprimand  are  milder forms of punishment.  The privileges of the House of Commons under  the  first head are claimed at  the  commencement  of every   Parliament  by  the  Speaker  addressing  the   Lord Chancellor on behalf of the Commons.  They are claimed as  " ancient  and undoubted " and are, through the  Chancellor  " most readily granted and confirmed by the Crown (2).  Of the three  things thus claimed, two, namely, the freedom of  the person  and the freedom of speech and certain  consequential rights  like the right to exclude strangers from  the  House and the control or prohibition of publication of the debates and proceedings are common to both Houses (3). (1)  Ridge’s  Constitutional  Law,  8th Edn.,  p.  61;  also Halsbury’s Laws of England, 2nd Edn., Vol. 24, P. 351.

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(2)  Anson’s Law and Custom of the Constitution, Vol. 1, Ch. 4,p. 162. (3)  Halsbury’s Laws of England, 2nd Edn., Vol. 24, p. 346. 843 For a deliberative body like the House of Lords or the House Commons,  freedom of speech is of the utmost importance.   A full  and  free debate is of the  essence  of  Parliamentary democracy.   Although  freedom  of speech  was  claimed  and granted  at  the commencement of every  Parliament,  it  was hardly any protection against the autocratic Kings, for  the substance  of  the  debates  could  be  and  was  frequently reported  to  the King and his ministers which  exposed  the members  to  the  royal  wrath.   Secrecy  of  Parliamentary debates  was, therefore, considered necessary not  only  for the due discharge of the responsibilities of the members but also  for their personal safety.  " The original motive  for secrecy of debate was the anxiety of the members to  protect themselves against the action of the. sovereign, but it  was soon  found  equally  convenient as a  veil  to  hide  their proceedings  from their constituencies " (1).   This  object could  be achieved in two ways, namely, (a)  by  prohibiting the publication of any report of the debates and proceedings and  (b) by excluding strangers from the House  and  holding debates within closed doors.  These two powers or privileges have  been adopted to ensure the secrecy of debates to  give full  play to the members’ freedom of speech and  therefore, really flow, as necessary corollaries, from that freedom  of speech  which  is  expressly  claimed  and  granted  at  the commencement of every Parliament. As to (a): " The history of Parliamentary privilege is to  a great extent a story of the fierce and prolonged struggle of the Commons to win the rights and freedoms which they  enjoy to-day  " (2).  The right to control and, if  necessary,  to prohibit the publication of the debates and proceedings  has been  claimed,  asserted  and exercised by  both  Houses  of Parliament  from very old days.  In 1628 and again  in  1640 the clerk was forbidden to make notes of " particular  men’s speeches " or to " suffer copies to go forth of (1)  Taswell-Langmead’s  Constitutional History, 10th  Edn., p. 657. (2)  Encyclopaedia  of  Parliament  by  Norman  Widling  and Laundy,p. 451. 844 any  arguments or speech whatsoever The House of Commons  of the  Long Parliament in 1641 framed a standing order "  that no  member  shall  either give a copy or  publish  in  print anything  that he shall speak in the House " and " that  all the members of the House are enjoined to deliver out no copy or notes of anything that is brought into the House, or that is propounded or agitated in this House ". In that  critical period  it  was a necessary precaution.  So strict  was  the House about this privilege that for printing a collection of his  own  speeches without such leave, Sir  E.  Derring  was expelled from the House and imprisoned in the Tower and  his book  was ordered to be burnt by the common  hangman.   This standing  order  has not up to this date been  abrogated  or repealed.   In  1680 to prevent inaccurate accounts  of  the business  done,  the  Commons directed  their  "  votes  and proceedings,  without  any reference to the debates,  to  be printed  under  the  direction of the  Speaker.   After  the Revolution of 1688 frequent resolutions were passed by  both Houses   of  Parliament  from  1694  to  1698  to   restrain newsletter  writers from " intermeddling with their  debates or other proceedings " or " giving any account of minute  of the  debates ". But such was the craving of the  people  for

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political  news that notwithstanding these  resolutions  and the punishment of offenders imperfect reports went on  being published  in  newspapers or journals.  Amongst  the  papers were Boyer’s " Political State of Great Britain ", "  London Magazine ", and " Gentleman’s Magazine " in which reports of debates were published under such titles as " Proceedings of a  Political  Club " and " Debates in the  Senate  of  Magna Lilliputia  ".  In  1722 the House  of  Commons  passed  the following resolutions: "  Resolved,  That  no  News Writers  do  presume  in  their Letters, or other Papers, that they disperse as Minutes,  or under  any  other  Denomination,  to  intermeddle  with  the Debates, or any other Proceedings, of this House. Resolved,  That no Printer or Publisher of any printed  News Papers, do presume to insert in any such (1)  Hatsell  265  quoted in May’s  Parliamentary  Practice, 16th Edn.,p. 55.                  845 Papers any Debates, or any other Proceedings of this  House, or any Committee thereof" (1). In 1738 the publication of its proceedings was characterised in  another resolution of the House of Commons as "  a  high indignity   and   a  notorious  breach  of   privilege   The publication  of debates in the " Middlesex Journal"  brought down  the wrath of the House of Commons on the printers  who were  ordered to attend the House.  The printers not  having been  found  warrants were issued for their arrest  and  one printer was arrested and brought before Alderman John Wilkes who  immediately discharged him on the ground that no  crime had  been  committed.   Another  printer  was  arrested  and brought  before another Alderman who,  likewise,  discharged the  prisoner  inasmuch  as he was  not  accused  of  having committed  any  crime.   By way of  reprisal  the  House  of Commons  imprisoned the Lord Mayor and an Alderman, both  of whom  were  the members of the House.  Both  men,  on  their release,  were honoured in a triumphal procession  from  the Tower of London to the Mansion House.  After this  political controversy, debates in both Houses continued to be reported with  impunity,  although technically such reporting  was  a breach  of  privilege.   Accurate  reporting  was,  however, hampered  by  many difficulties, for the  reporters  had  no accommodation  in the House and were frequently  obliged  to wait  for long periods in the halls or on the stairways  and were  not permitted to take notes.  The result was that  the reports  published in the papers were full of  mistakes  and misrepresentations.    After  the  House  of   Commons   was destroyed  by fire in 1834, galleries in temporary  quarters were  provided for the convenience of reporters, and in  the new House of Commons a separate gallery was provided for the Press.  In 1836 the Commons provided for the publication  of parliamentary papers and reports, which led to the  conflict between  the  House  of Commons and the  courts,  which  was decided  in  Stockdale  v. Hansard  (2),  where  Lord  Chief Justice Denman held that (1)  20  journals of the House of Commons, p. 99; quoted  in Frank Thayer’s Legal Control of the Press, pp. 28-29. (2)  Moody  and  Robson,  9. 174 Eng.  Rep.  196;  also  see (1839) 9 A. & E. Reports, Eng.  Q.B. 1; 112 Eng.  Rep. 1112. 846 the  fact  of the House of Commons having  directed  Messrs. Hansard  to publish all their parliamentary reports  was  no justification   for  their  or  for  any  other   bookseller publishing  a  parliamentary  report,  containing  a   libel against  any  man.   Subsequently the  House  retaliated  by committing Stockdale and his attorney and - also the sheriff

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to  prison.  The deadlock thus brought about was  at  length removed by the passing of the Parliamentary Papers Act, 1840 (3 and 4 Vic. c. 9). Learned advocate for the petitioner has drawn our  attention to  the judgment of Cockburn, C. J., in the celebrated  case of  Wason  v. Walter (1).  The plaintiff in  that  case  had presented  a petition to the House of Lords charging a  high judicial  officer  with  having, 30  years  before,  made  a statement false to his own know. ledge, in order to  deceive a committee of the House of Commons and praying enquiry  and the removal of the officer if the charge was found true.   A debate  ensued on the presentation of the petition  and  the charge was utterly refuted.  Allegations disparaging to  the character of the plaintiff had been spoken in the course  of the  debate.  A faithful report of the debate was  published in  the  Times  and  the  plaintiff  proceeded  against  the defendant, who was a proprietor of the Times, for libel.  It was  held  that  the debate was a subject  of  great  public concern  on  which a writer in a public newspaper  had  full right  to comment, and the occasion was, therefore,  so  far privileged that the comments would not be actionable so long as  a  jury  should think them honest and  made  in  a  fair spirit,  and such as were justified by the circumstances  as disclosed  in  an accurate report of  the  debate.   Learned advocate  for  the petitioner contends  that  this  decision establishes  that  the Press had the absolute  privilege  of publishing  a report of the proceedings that take  place  in Parliament, just as it is entitled to publish a faithful and correct report of the proceedings of the courts of  justice, though the character of individuals may incidentally  suffer and  that  the  publication  of  such  accurate  reports  is privileged   and   entails  neither   criminal   nor   civil responsibility.  This argument overlooks (1)  (1868) L.R. IV Q.B. 73. 847 that the question raised and actually decided in that  case, as formulated by Cockburn, C. J., himself at p.   82,    was simply this:- " The main question for our decision is, whether a  faithful report in a public newspaper of a debate in either House  of Parliament, containing matter disparaging to: the  character of an individual, as having been spoken in the course of the debate,  is  actionable  at  the suit  of  the  party  whose character has thus been called in question." The  issue  was between the publisher and the  person  whose character had been attacked.  The question of the privilege, as between the House and the newspaper, was not in issue  at all.   In  the next place, the observations relied  upon  as bearing on the question of privilege of Parliament were  not at all necessary for deciding that case and, as Frank Thayer points  out  at  p. 32 of his Legal Control  of  the  Press, ’,this part of the opinion is purely dictum ". In the  third place,  the  following  observations of  the  learned  Chief Justice clearly indicate that, as between the House and  the Press, the privilege does exist:- "It only remains to advert to an argument urged against  the legality  of the publication of  parliamentary  proceedings, namely,  that  such  publication  is  illegal  as  being  in contravention  of  the  standing orders of  both  houses  of parliament.   The  fact, no doubt, is, that  each  house  of parliament  does,  by  its  standing  orders,  prohibit  the publication of its debates.  But, practically each house not only  permits,  but  also  sanctions  and  encourages,   the publication  of  its proceedings, and actually  gives  every facility  to  those  who report  them.   Individual  members

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correct  their  speeches for publication in Hansard  or  the public  journals,  and  in every debate  reports  of  former speeches  contained  therein  are  constantly  referred  to. Collectively,  as well as individually, the members of  both houses would deplore as a national misfortune the  withhold- ing  their debates from the country at  large.   Practically speaking, therefore, it is idle to say that the  publication of  parliamentary proceedings is prohibited  by  parliament. The standing orders which prohibit 848 it  are obviously maintained only to give to each house  the control  over  the publication of its proceedings,  and  the power of preventing or correcting any abuse of the  facility afforded.  Independently of the orders of the houses,  there is  nothing unlawful in publishing reports of  parliamentary proceedings. -Practically, such publication is sanctioned by parliament;   it  is  essential  to  the  working   of   our parliamentary system, and to the welfare of the nation.  Any argument  founded on its alleged illegality appears  to  us, therefore,  entirely  to  fail.   Should  either  house   of parliament  ever  be so ill-advised as to prevent  its  pro- ceedings  from  being  made  known  to  the  country   which certainly  never  will be the case-any  publication  of  its debates  made  in  contravention of its orders  would  be  a matter  between,  the  house and  the  publisher.   For  the present purpose, we must treat such publication as in  every respect lawful, and hold that, while honestly and faithfully carried  on, those who publish them will be free from  legal responsibility,  though  the character  of  individuals  May incidentally be injuriously affected." With  the  facilities  now accorded to  the  reporters,  the practice of reporting has improved, and the House,  sensible of  the  advantage which it derives from a  full  and  clear account of its debates, has even encouraged the  publication of reports of debates and proceedings that take place in the House.   From this it does not at all follow that the  House has given up this valuable privilege.  The following passage in  Anson’s Law and Custom of the Constitution at p. 174  is significant and correctly states the position :- "  We  are  accustomed, therefore,  to  be  daily  informed, throughout  the  Parliamentary Session, of every  detail  of events in the House of Commons; and so we are apt to  forget two things. The first is, that these reports are made on sufferance, for the House can at any moment exclude strangers and clear  the reporter’s  gallery  ; and that they are also  published  on sufferance,  for  the  House may at any  time  resolve  that publication  is  a  breach of privilege  and  deal  with  it accordingly. 849 The  second  is,  that though the privileges  of  the  House confer  a right to privacy of debate. they do not  confer  a corresponding right to the publication of debate." Frank  Thayer  at pp. 31-32 expresses the same view  in  the following terms:- "  Parliamentary privilege as part of the unwritten  English Constitution  is  the  exclusive right of  either  House  to decide  what constitutes interference with its  duties,  its dignity,  and  its  independence.   Its  power  to   exclude strangers so as to secure privacy of debate closely  follows the  right  of  Parliament to  prevent  the  publication  of debates.   Attendance  at  Parliamentary  debates  and   the publication  of debates are by sufferance only, although  it is  now  recognized  that dissemination  of  information  on debates  and  Parliamentary proceedings is  advantageous  to

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English democracy and, in fact, necessary to public  safety. By judicial dictum it has been stated that there is a  right to  publish  fair  and  accurate  reports  of  Parliamentary debates,   but   actually  the  traditional   privilege   of Parliament  continues  in conflict  with  judicial  opinion. There  is still a standing order forbidding the  publication of  Parliamentary debates, an order that by custom  and  the right of sufferance has become practically obsolete; yet the threat  of such an order and the possibility of  a  contempt citation   for   its  abuse,  should  Parliament   deem   it advantageous  to withhold some particular discussion,  serve as a check upon careless reporting and distorted comment." May  in his Parliamentary Practice, 16th Edn., p.  118  puts the matter thus:- "  Analogous to the publication of libels upon either  House is the publication of false or perverted, or of partial  and injurious reports of debates or proceedings of either  House or  committees of either House or misrepresentations of  the speeches  of  particular members.  But as the  Commons  have repeatedly  made orders forbidding the publications  of  the debates or other proceedings of their House or any committee thereof which, though not renewed in any subsequent 107 850 session,  are considered to be still in force, it  has  been ruled  that an alleged misrepresentation is not in itself  a proper matter for the consideration of the House, the  right course  being  to  call  attention  to  the  report  as   an infringement  of  the  orders  of the  House,  and  then  to complain  of the misrepresentation as an aggravation of  the offence." The  fact  that the House of Commons jealously  guards  this particular privilege is amply borne out by the fact that  as late  as  May  31, 1875, when Lord  Hartington  sponsored  a motion  in the House of Commons " that this House  will  not entertain any complaint in respect of the publication of the debates  or  proceedings of the House, or of  any  committee thereof,  except when such debates or any proceedings  shall have  been  conducted  within  closed  doors  or  when  such publication  shall  have been expressly  prohibited  by  the House  or  any  committee or in  case  of  wilful  misrepre- sentation or other offence in relation to such publication " the  House  of  Commons rejected  the  same  outright.   The conclusion   deducible  from  this  circumstance   is   thus summarised in May’s Parliamentary Practice at p. 118:- "  So  long  as the debates  are  correctly  and  faithfully reported,  the orders which prohibit their  publication  are not  enforced;  but  when they are reported  mala  fide  the publishers of newspapers are liable to punishment." Several instances are given in May’s Parliamentary  Practice at  pp. 118-19 where proceedings have been taken for  breach of privilege including a case of the publication in 1801  of a  proceeding  which the House of Lords had  ordered  to  be expunged from the journal.  It is said that that was a  case of  privilege  of  the  House of Lords and  not  a  case  of privilege of the House of Commons and it is pointed out that there  has  been no instance of such a  claim  of  privilege having been made by the House of Commons for over a century. In  the  first  place, it should  be  remembered  that  this privilege,  as  stated in Halsbury’s Laws  of  England,  2nd Edn., Vol. 24, p. 351, is a common privilege claimed by both Houses and, if the House of 851 Lords  could  assert and exercise it in 1801,  there  is  no reason to suppose that the House of Commons will not be able

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to  do  so  if  any occasion arises  for  its  assertion  or exercise.   If  the House of Commons has not done so  for  a long  time  it must rather be assumed that no  occasion  had arisen  for  the assertion and exercise of this  power  than that  it  had  ceased  to have the power  at  all  (Cf.  the observations  in Wason v. Walter) (1) and In re:  Banwarilal Roy  (2)).   Further the fact that the House of  Commons  in 1875  rejected  Lord Hartington’s motion referred  to  above also clearly indicates that the House of Commons is  anxious to  preserve this particular privilege.  It  is  interesting also  to  note  the new point that arose  in  the  House  of Commons regarding the publication of certain proceedings  in August  1947.  A Committee of Privileges found that one  Mr. Evelyn  Walkden,  member  for Doncaster,  had  revealed  the proceedings of a private party meeting to a newspaper.   The Committee  thought  that  the  practice  of  holding   party meetings  of  a  confidential  character  had  become  well- established  and  must  be taken as a  normal  and  everyday incident  of  parliamentary procedure.  The  Committee  felt that attendance at such meetings within the precincts of the Palace  of  Westminster during the session was part  of  the member’s  normal duties and the publication by  the  handing out  of a report of the proceedings amounted to a breach  of the privilege of the House.  It is true that the House  only resolved  that  Mr.  Walkden  was  guilty  of  dishonourable conduct,  but  did  not  expel him  but  it  also  passed  a resolution  that in future any person offering  payment  for the  disclosure of such information would incur the  House’s grave  displeasure (3).  In this case the inquiry  was  with regard  to  the conduct of a member for having  committed  a breach of the privilege of the House by publishing the  pro- ceedings  to  an outsider.  The point, however, to  note  is that whatever doubts there might have been as to whether the proceedings  of the private party meetings could be  equated with the regular proceedings of (1) (1868) L.R. IV Q.B. 73. (2) 48 C.W. N. 766, 787. (3)  Ridge’s  Constitutional Law, 8th Edn., P. 70 and  May’s Parliamentary Practice, 16th Edn., P. 52. 852 the  House of Commons, there was, nevertheless, no  question or  doubt about the existence of the power or  privilege  of the  House to forbid publication of the proceedings  of  the House.   This case also shows that the House of Commons  had not only not abandoned its power or privilege of prohibiting the   publication  of  its  proceedings  proper   but   also considered the question of applying this power or  privilege to the publication by a member of the proceedings that  took place  in a private party meeting held within the  precincts of the House. As  to  (b): It has already been said that  the  freedom  of speech  claimed  by the House and granted by the  Crown  is, when  necessary, ensured by the secrecy of the debate  which in  its turn is protected by prohibiting publication of  the debates  and proceedings as well as by  excluding  strangers from  the House.  Any member could in the old days "  spy  a stranger  "  and the Speaker had to clear the House  of  all strangers   which  would,  of  course,  include  the   Press reporters.   This right was exercised in 1849 and  after  20 years in 1870 and again in 1872 and 1874.  In 1875, however, this rule was modified by a resolution of the House only  to this  extent, namely, that, on a member spying  a  stranger, the  Speaker would put the matter to the vote of  the  House (1).  This right was exercised in 1923 and again as late  as on  November 18, 1958 (2).  This also shows that  there  has

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been no diminution in the eagerness of the House of  Commons to  protect  itself  by securing the secrecy  of  debate  by excluding strangers from the House when any occasion arises. The  object  of  excluding  strangers  is  to  prevent   the publication of the debates and proceedings in the House and, if  the  House  is tenaciously clinging  to  this  power  or privilege  of excluding strangers, it is not likely that  it has  abandoned  its  power  or  privilege  to  prohibit  the publication  of reports of debates or proceedings that  take place within its precincts. The  result of the foregoing discussion, therefore, is  that the House of Commons had at the commencement (1)  Taswell-Langmead, p. 660. (2)  The Statesman dated November 20, 1958. 853 of  our Constitution the power or privilege  of  prohibiting the  publication of even a true and faithful report  of  the debates or proceedings that take place within the House.   A fortiori  the  House had at the relevant time the  power  or privilege of prohibiting the publication of an inaccurate or garbled version of such debates or proceedings.  The  latter part of Art. 194(3) confers all these powers, privileges and immunities on the House of the Legislature of the States, as Art.  105(3) does on the Houses of Parliament.  It  is  said that  the  conditions  that prevailed in the  dark  days  of British  history, which led to the Houses of  Parliament  to claim  their powers, privileges and immunities, do  not  now prevail  either in the United Kingdom or in our country  and that there is, therefore, no reason why we should adopt them in these democratic days.  Our Constitution clearly provides that until Parliament or the State Legislature, as the  case may be, makes a law defining the powers, privileges and  im- munities  of  the House, its members  and  Committees,  they shall have all the powers, privileges and immunities of  the House  of Commons as at the date of the commencement of  our Constitution  and yet to deny them those powers,  privileges and immunities, after finding that the House of Commons  had them  at  the relevant time, will be not  to  interpret  the Constitution  but to re-make it.  Nor do we share  the  view that  it will not be right to entrust our Houses with  these powers,   privileges  and  immunities,,  for  we  are   well persuaded  that our Houses, like the House of Commons,  will appreciate  the benefit of publicity and will  not  exercise the powers, privileges and immunities except in gross cases. Re.   II: Assuming that the petitioner, as a citizen and  an editor   of  a  newspaper,  has  under  Art.  19(1)(a)   the fundamental  right to publish a true and faithful report  of the   debates  or  proceedings  that  take  place   in   the Legislative  Assembly  of  Bihar  and  granting  that   that Assembly  under Art. 194(3) has all the  powers,  privileges and  immunities  of  the House  of  Commons  which  include, amongst others, the right to prohibit the publication of any report of the debates or proceedings, 854 whose  right  is  to prevail-?   Learned  advocate  for  the petitioner   contends  that  the  powers,   privileges   and immunities  of  the Legislative Assembly under  Art.  194(3) must  give  way to the fundamental right of  the  petitioner under  Art.  19(1)(a).   In  other  words,  Art.  194   (3), according to him, is subject to Art. 19 (1) (a). Learned  advocate  for the petitioner seeks to  support  his client’s claim in a variety of ways which may now be noted, seriatim :- (i)  that though cl. (3) of Art. 194 has not, in terms, been made  "subject  to the provision of the Constitution  ",  it

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does  not  necessarily mean that it is not so  subject,  and that the several clauses of Art. 194 or Art. 105 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 Art. 19(1)(a); (ii) that Art. 194(1), like Art. 105(1), in reality operates as  an  abridgement of the fundamental right Of  freedom  of speech   conferred  by  Art.  19(1)(a)  when  exercised   in Parliament or the State Legislatures respectively, but  Art. 194(3)  does  not, in terms, purport to be an  exception  to Art. 19(1)(a) ; (iii)     that  Art. 19, which enunciates  a  transcendental principle and confers on the citizens of India  indefeasible and fundamental rights of a permanent nature,, is  enshrined in  Part  III  of our Constitution, which, in  view  of  its subject  matter, is more important, enduring and  sacrosanct than  the  rest of the provisions of the  Constitution,  but that  the second part of Art. 194(3) is of the nature  of  a transitory  provision  which, from its very  nature,  cannot override the fundamental rights; (iv) that if, in pursuance of the provisions of Art. 105(3), Parliament  makes  a  law under entry 74 in List  I  to  the Seventh   Schedule  defining  the  powers,  privileges   and immunities  of  the House or Houses of  Parliament  and  its members and committees or if, in pursuance of the provisions of  Art.  194(3), the State Legislature makes  a  law  under entry 39 in List II to 855 the  Seventh  Schedule defining the powers,  privileges  and immunities  of the House or Houses of the Legislature  of  a State and its members and committees and if, in either case, the  powers,  privileges  and  immunities  so  defined   and conferred  on  the  House or Houses  are  repugnant  to  the fundamental  rights  of the citizens, such law  will,  under Art. 13, to the extent of such repugnancy, be void and  that such  being the intention of the Constitution makers in  the earlier  part  of Art. 194(3) and there  being  no  apparent indication  of a different intention in the latter  part  of the  same clause, the powers, privileges and  immunities  of the House of Commons conferred by the latter part of cl. (3) must also be taken as subject to the fundamental rights; (v)  that the observations in Anand Bihari Mishra v.   Ram Sahay  (1)  and  the  decision of  this  Court  in  Gunupati Keshavram Reddy v. Nafisul Hasan (2) clearly establish  that Art. 194(3) is subject to the fundamental rights. The  arguments,  thus formulated, sound plausible  and  even attractive,  but  do  not bear close scrutiny,  as  will  be presently seen. Article 194 has already been quoted in extenso.  It is quite clear that the subject matter of each of its four clauses is different.   Clause  (1) confers on the members  freedom  of speech  in the Legislature, subject, of course,  to  certain provisions therein referred to.  Clause (2) gives  immunity, to  the  members or any person authorised by  the  House  to publish any report etc. from legal proceedings.  Clause  (3) confers  certain powers.  Privileges and immunities  on  the House  of the Legislature of a State and on the members  and the committees thereof and finally el. (4) extends the  pro- visions of cls. (1) to (3) to persons who are not members of the House, but who, by virtue of the Constitution, have  the right to speak and otherwise to take part in the proceedings of the House or any committee thereof.  In the second place, the fact that cl. (1) has been expressly made subject to the provisions of the Constitution but cls. (2) to (4) have  not

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been stated to (1) A.1.R. (1952) M.B. 31, 43. (2) A.I.R. (1954) S.C. 636. 856 be so subject indicates that the Constitution makers did not intend  cls. (2) to (4) to be subject to the  provisions  of the  Constitution.  If the Constitution makers  wanted  that the  provisions of all the clauses should be subject to  the provisions of the Constitution, then the Article would  have been  drafted  in  a different way, namely,  it  would  have started with the words: " Subject to the provisions of  this Constitution  and the rules and standing  orders  regulating the  procedure  of the Legislature " and  then  the  subject matter  of the four clauses would have been set out as  sub- cls.  (i), (ii), (iii) and (iv) so as to indicate  that  the overriding provisions of the opening words qualified each of the  subclauses.  In the third place, in may well be  argued that the words " regulating the procedure of the Legislature "  occurring  in  cl.  (1) of Art. 194  should  be  read  as governing both " the provisions of the Constitution " and  " the  rules and standing orders ". So read freedom of  speech in the Legislature becomes subject to the provisions of  the Constitution  regulating the procedure of  the  Legislature, that  is  to  say,  subject  to  the  Articles  relating  to procedure  in Part VI including Arts. 208 and 211,  just  as freedom  of  speech in Parliament under Art.  105(1),  on  a similar  construction, will become subject to  the  Articles relating to procedure in Part V including Arts. 118 and 121. The  argument that the whole of Art. 194 is subject to  Art. 19(1)(a)  overlooks the provisions of cl. (2) of  Art.  194. The right conferred on a citizen under Art. 19(1)(a) can  be restricted by law which falls within cl. (2) of that Article and  he may be made liable in a court of law for  breach  of such  law, but el. (2) of Art. 194 categorically  lays  down that  no member of the Legislature is to be made  liable  to any proceedings in any court in respect of anything said  or any  vote given by him in the Legislature or  in  committees thereof and that no person will be liable in respect of  the publication by or under the authority of the House of such a Legislature  of  any  report,  paper  or  proceedings.   The provisions of cl. (2) of Art. 194, therefore, indicate  that the  freedom of speech referred to in el. (1)  is  different from the freedom of speech and expression guaranteed 857 under Art. 19(1)(a) and cannot be cut down in any way by any law contemplated by cl. (2) of Art. 19. As to the second head of arguments noted above it has to  be pointed out that if the intention of cl. (1) of Art. 194 was only  to indicate that it was an abridgement of the  freedom of speech which would have been available to a member of the Legislature as a citizen under Art. 19(1)(a), then it  would have  been  easier  to say in cl. (1) that  the  freedom  of speech  conferred  by Art. 19(1)(a), when exercised  in  the Legislature   of  a  State,  would,  in  addition   to   the restrictions  permissible  by  law under  cl.  (2)  of  that Article,  be  further  subject  to  the  provisions  of  the Constitution  and the rules and standing  orders  regulating procedure  of  that Legislature.  There would have  been  no necessity for conferring a new the freedom of speech as  the words " there shall be freedom of speech in the  Legislature of every State " obviously intend to do. Learned advocate for the petitioner has laid great  emphasis on  the two parts of the provisions of cl. (3) of Art.  194, namely,  that  the powers, privileges and  immunities  of  a House  of the Legislature of a State and of the members  and

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committees thereof shall be such as may from time to time be defined  by the Legislature by law and that until then  they shall be those of the House of Commons of the Parliament  of the United Kingdom and of its -members and committees.   The argument  is that a law defining the powers, privileges  and immunities  of  a  House  or  Houses  and  the  members  and committees thereof can be made by Parliament under entry  74 in  List  I and by the State Legislature under entry  39  of List  11  and if a law so made takes away  or  abridges  the right  to freedom of speech guaranteed under  Art.  19(1)(a) and  is  not  protected under Art. 19(2), it  will  at  once attract  the operation of the peremptory provisions of  Art. 13  and  become void to the extent of the  contravention  of that  Article.  But it is pointed out that if Parliament  or the State Legislature does not choose to define the  powers, privileges  and immunities and the Houses of  Parliament  or the House or Houses of the State Legislature 108 858 or  the  members  and committees  thereof  get  the  powers, privileges and immunities of the House of Commons, there can be no reason why, in such event, the last mentioned  powers, privileges  and  immunities should be   independent  of  and override the provisions of Art. 19 (1)(a).   The  conclusion sought to be pressed upon us is that    that  could  not  be the intention of the Constitution  makers and, therefore, it must  be held that the powers, privileges and immunities  of the House of Commons and of its members and committees  that are  conferred  by the latter part of Art.  105(3)  on  each House  of Parliament and the members and committees  thereof and  by  the latter part of Art. 194(3) on a  House  of  the Legislature  of  a  State and  the  members  and  committees thereof must be, like the powers, privileges and  immunities defined  by  law,  to be made by  Parliament  or  the  State Legislature as the case may be, subject to the provisions of Art. 19(1)(a).  We are unable to accept this reasoning.   It is  true, that a law made by Parliament in pursuance of  the earlier  part of Art. 105(3) or by the State Legislature  in pursuance of the earlier part of Art. 194(3) will, not be  a law made in exercise of constituent power like the law which was considered in Sankari Prasad Singh Deo v. Union of India (1)  but  will  be  one made in  exercise  of  its  ordinary legislative  powers  under Art. 246 read  with  the  entries referred to above and that consequently if such a law  takes away  or  abridges  any of the fundamental  rights  it  will contravene the peremptory provisions of Art. 13(2) and  will be void to the extent of such contravention and it may  well be that that is precisely the reason why our Parliament  and the  State Legislatures have not made any law  defining  the powers,  privileges  and immunities just as  the  Australian Parliament   had  not  made  any  under  s.  49   of   their Constitution  corresponding to Art. 194(3) up to  1955  when the case of The Queen v. Richards (2) was decided.  It  does not,  however,  follow  that if the  powers,  privileges  or immunities  conferred by the latter part of  those  Articles are  repugnant to the fundamental rights, they must also  be void to the (1) [1952] S.C.R. 89, go. (2) (1955) 92 C L.R. 57. 859 extent  of such repugnancy. it must not be  overlooked  that the   provisions  of  Art.  105(3)  and  Art.   194(3)   are constitutional laws and not ordinary laws made by Parliament or  the State Legislatures and that, therefore, they are  as supreme  as  the  provisions of Part  III.   Further,  quite

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conceivably  our  Constitution  makers,  not  knowing   what powers,   privileges  and  immunities  Parliament   or   the Legislature  of  a  State may arrogate  and  claim  for  its Houses-  members or committees, thought fit not to take  any risk   and  accordingly  made  such  laws  subject  to   the provisions of Art. 13 ; but that knowing and being satisfied with  the  reasonableness  of  the  powers,  privileges  and immunities  of the House of Commons at the  commencement  of the Constitution, they did not in their wisdom, think fit to make  such powers, privileges and immunities subject to  the fundamental  right conferred by Art. 19(1)(a). We  must,  by applying  the cardinal rules of construction  ascertain  the intention of the Constitution makers from the language  used by  them.   In  this connection  the  observations  made  in Anantha  Krishnan  v.  State of Madras  (1)  by  Venkatarama Aiyar, J., appear to us to be apposite and correct:- "As  against  this the learned Advocate for  the  petitioner urges that the fundamental rights are under the Constitution in a paramount position, that under Art. 13 the Legislatures of  the country have no power to abrogate or  abridge  them, that  the  power to tax is the power to  destroy  and  that, therefore,  part 12 is inoperative in respect of the  rights conferred under Part 111.  I am unable to agree.  Art. 13 on which this argument is mainly founded does not support  such a  wide  contention.  It 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 111.  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 (1)  A.I.R. (1952) Mad, 395, 405. 860 are  parts  of one organic whole.   Article  13,  therefore, cannot  be  read  so as to render any portion  of  the  Con- stitution  invalid.  This conclusion is also  in  accordance with  the  principle adopted in interpretation  of  statutes that  they  should  be so construed as to  give  effect  and operation  to all portions thereof and that  a  construction which  renders  any portion of them  inoperative  should  be avoided.   For these reasons I must hold that the  operation of  Part  12  is  not cut down by  Part  III  and  that  the fundamental rights are within the powers of the taxation  by the State." Article  19(1)(a) and Art. 194(3) have to be reconciled  and the  only  way  of  reconciling the same  is  to  read  Art. 19(1)(a) as subject to the latter part of Art. 194(3),  just as Art. 31 has been read as subject to Art. 265 in the cases of  Ramjilal  v. Income-tax Officer,  Mohindargarh  (1)  and Laxmanappa  Hanumantappa v. Union of India (2),  where  this Court  has held that Art. 31(1) has to be read as  referring to  deprivation  of  property  otherwise  than  by  way   of taxation.   In  the light of the foregoing  discussion,  the observations in the Madhya Bharat case (3) relied on by  the petitioner,  cannot, with respect, be supported as  correct. Our  decision in Gunupati Keshavram Reddy v.  Nafisul  Hasan (4), also relied on by learned advocate for the  petitioner, proceeded entirely on a concession of counsel and -cannot be regarded  as  a considered opinion on the subject.   In  our judgment  the principle of harmonious construction  must  be adopted  and so construed, the provisions of Art.  19(1)(a), which are general, must yield to Art. 194(1) and the  latter part of its el. (3) which are special.

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Seeing that the present proceedings have been initiated on a petition  under  Art.  32 of the  Constitution  and  as  the petitioner may not be entitled, for reasons stated above, to avail himself of Art. 19(1)(a) to support this  application, learned advocate for the petitioner falls back upon Art.  21 and  contends that the proceedings before the  Committee  of Privileges  threaten  to  deprive him  of  personal  liberty otherwise (1)  [1951] S.C R. 127. (3)  A.I.R. (1952) M.B. 31, 43, (2)  [1955] 1 S.C.R. 769. (4) A.I.R. (1954) S.C. 636. 861 than  in accordance with procedure established by law.   The Legislative  Assembly claims that under Art. 194(3)  it  has all  the  powers, privileges and immunities enjoyed  by  the British  House  of  Commons  at  the  commencement  of   our Constitution.   If  it  has  those  powers,  privileges  and immunities,  then it can certainly enforce the same, as  the House  of  Commons can do.  Article 194(3)  confers  on  the Legislative Assembly those powers, privileges and immunities and Art. 208 confers power on it to frame rules.  The  Bihar Legislative  Assembly  has framed rules in exercise  of  its powers under that Article.  It follows, therefore, that Art. 194(3)  read  with  the rules so framed has  laid  down  the procedure   for   enforcing  its  powers,   privileges   and immunities.  If, therefore, the Legislative Assembly has the powers, privileges and immunities of the I-louse of  Commons and if the petitioner is eventually deprived of his personal liberty as a result of the proceedings before the  Committee of  Privileges, such deprivation will be in accordance  with procedure  established  by  law and  the  petitioner  cannot complain  of  the  breach,  actual  or  threatened,  of  his fundamental right under Art. 21. We  now  proceed  to consider the  other  points  raised  by learned counsel for the petitioner.  He argues that assuming that the Legislative Assembly has the powers, privileges and immunities it claims and that they override the  fundamental right   of   the  petitioner,  the   Legislative   Assembly, nevertheless, must exercise those privileges and  immunities in accordance with the standing orders laying down the rules of  procedure governing the conduct of its business made  in exercise  of powers under Art. 208.  Rule 207 lays down  the conditions as to the admissibility of a motion of privilege. According to cl. (ii) of this rule the motion must relate to a  specific  matter of recent occurrence.   The  speech  was delivered  on  May  30,1957, and Shri  Nawal  Kishore  Sinha M.L.A.  sent his notice of motion on June 10, 1957, that  is to  say, 10 days after the speech had been  delivered.   The matter  that  occurred  10 days prior to  the  date  of  the submission  of the notice of motion cannot be said to  be  a specific matter of recent 862 occurrence.  It is impossible for this Court to prescribe  a particular  period  for moving a privilege motion so  as  to make  the subject matter of the motion a specific matter  of recent  occurrence.  This matter must obviously be  left  to the discretion of the Speaker of the House of Legislature to determine whether the subject matter of the motion is or  is not  a specific matter of recent occurrence.  The copies  of the proceedings marked as Annexure D in Annexure III to  the petition do not disclose that any objection was taken by any member  on  the ground that the matter was  not  a  specific matter of recent occurrence.  We do not consider that  there is any substance in this objection.

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Reference is then made to rr. 208 and 209 which lay down the procedure as to what is to happen if any objection is  taken to leave being granted to the mover to move his motion.   It is  said  that Shri Ramcharitra Sinha M.L.A. had  raised  an objection to leave being granted to Shri Nawal Kishore Sinha to  move  the  privilege motion.   This  allegation  in  the petition  does not appear to be borne out by the account  of proceedings  in the House to which reference has been  made. Shri  Ramcharitra Sinha only wanted to know  the  convention relating  to the question of admissibility of such a  motion and  the  Speaker accordingly read out el. (ii) of  r.  208. After  that  Shri  Ramcharitra Sinha did  not  say  anything further.   The  Speaker then said that  he  understood  that there  was no opposition in the matter and,  therefore,  the Hon’ble  member was to be understood as having received  the leave of the House and called upon him to say what be wanted to  say.  Thereupon, as stated earlier, Shri Karpuri  Thakur wanted to know what had been published in the Searchlight of May  31,  1957, and what ought not to have  been  published. The Speaker thereupon read out the notice submitted by  Shri Nawal Kishore Sinha which concisely referred to the  subject matter of the motion and contained a reference to the  issue of  the  Searchlight of May 31, 1957, a copy  of  which  was filed along with the notice.  After the notice had been read the  Speaker permitted Shri Nawal Kishore Sinha to move  his privilege motion, which the latter did.  There 863 was  no amendment proposed and the Speaker then stated  what the  question before the House was, Nobody having  indicated his opposition, he declared the motion to be carried.  There was,  in  the  circumstances,  no  non-compliance  with  the provisions of r. 208 read with r. 209. The  next argument founded on non-compliance with the  rules is  based on r. 215.  Clause (i) of that rule provides  that the  Committee of Privileges should meet as soon as  may  be after the question has been referred to it and from time  to time thereafter till a report is made within the time  fixed by the House.  In this case the House admittedly did not fix a  time  within  which  the report was to  be  made  by  the Committee  of  Privileges.   This  circumstance  immediately attracts  the  proviso, according to which where  the  House does  not fix any time for the presentation of  the  report, the report has to be presented within one month of the  date on  which the reference to the Committee was made.   Learned advocate for the petitioner argues that one month’s time had long  gone past and, therefore, the Committee of  Privileges became functus officio and cannot, under the rules,  proceed with   the  reference.   There  is  no  substance  in   this contention, because the second proviso to cl. (i) of r.  215 clearly provides that the House may at any time on a  motion being made direct that the time for the presentation of  the report  by the Committee be extended to a date specified  in the  motion.   The words " at any time "  occurring  in  the second proviso quite clearly indicate that this extension of time  may be within the time fixed by the House or,  on  its failure to do so, within the time fixed by the first proviso or  even thereafter, but before the report is actually  made or  presented  to the House (Cf.  Raja Har Narain  Singh  v. Chaudhrain  Bhagwant  Kuar) (1).  Further, the  question  of time within which the Committee of Privileges is to make its report  to the House is a matter of internal  management  of the affairs of the House and a matter between the House  and its  Committee  and  confers no right  on  the  party  whose conduct is the subject matter of investigation (1)  (1891) L.R. 18 I.A. 55, 58.

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864 and this is so particularly when the House has the power  to extend time " at any time ". The  next argument is that the Committee cannot  proceed  to investigate  what has not been referred to it. Reference  is made to the resolution of the Committee (Annexure 11 to  the petition) and the notice issued to the petitioner  (Annexure I  to the petition).  It is said that while the  Committee’s resolution speaks of publishing " a perverted and unfaithful report  of the proceedings of the Assembly relating  to  the speech of Maheshwar Prasad, Narayan Sinha M.L.A."  including the expunged portion thereof, the notice simply refers to  " a  question  involving  breach of  privilege  of  the  Bihar Legislative  Assembly arising out of the publication of  the news item " and calls upon the petitioner to show cause  why appropriate  action should not be recommended against him  " for  breach of privilege of the Speaker and the Assembly  ". We fail to perceive how the two documents can be read as re- ferring to two different charges.  The notice served on  the petitioner  is  couched  in terms which  cover  the  matters referred  to in the Committee’s resolution.  The  effect  in law of the order of the Speaker to expunge a portion of  the speech  of a member may be as if that portion bad  not  been spoken.  A report of the whole speech in such circumstances, though  factually  correct,  may, in  law,  be  rewarded  as perverted and unfaithful report and the publication of  such a  perverted  and  unfaithful  report  of  a  speech,  i.e., including  the expunged portion in derogation to the  orders of  the  Speaker passed in the House may,  prima  facie,  be regarded  as constituting a breach of the privilege  of  the House  arising out of the publication of the offending  news item  and that is precisely the charge that is  contemplated by the Committee’s resolution and which the petitioner is by the  notice called upon to answer.  We prefer to express  no opinion as to whether there has, in fact, been any breach of the privilege of the House, for of that the House alone is the judge; The  next  argument  urged  by  learned  advocate  for   the petitioner is that, after the House had referred the  matter to the committee of privileges, nothing was 865 done for about one year, and after such a lapse of time  the committee  has suddenly woke up and resuscitated the  matter only  with a view to penalise the petitioner.  In  paragraph 17  of  the  petition  the charge  of  mala  fides  is  thus formulated:- "  17.   That  the  Committee  of  Privileges  aforesaid  is proceeding  against the petitioner mala fide with a view  to victimise  and  muzzle  him since the  petitioner  has  been through   his   newspaper   unsparingly   criticising    the administration in the State of Bihar of which opposite party No. 1 is the Chief Minister." It  will  be noticed that the allegation of  mala  fides  is against  the  Committee of Privileges and  not  against  the Chief Minister and, therefore, to controvert this allegation an  affidavit  affirmed  by  the  Secretary  to  the   Bihar Legislative  Assembly has been filed.  In the  affidavit  in reply reference is made to certain issues of the Searchlight indicating that charges were being made by the paper against the  Chief Minister and the suggestion is that it is at  the instance  of the Chief Minister that the Committee  has  now moved in the matter.  This is a new allegation.  That apart, the Chief Minister is but one of the fifteen members of  the Committee and one of the three hundred and nineteen  members of  the  House.   The  Committee  of  Privileges  ordinarily

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includes members of all parties represented in the House and it  is  difficult to expect that the Committee, as  a  body, will  be  actuated by any mala fide  intention  against  the petitioner.   Further the business of the Committee is  only to make a report to the House and the ultimate decision will be  that  of the House itself.  In  the  circumstances,  the allegation  of bad faith cannot be readily accepted.  It  is also  urged that the Chief Minister should not take part  in the  proceedings  before  the Committee because  he  has  an interest in the matter and reference is made to the decision in  Queen  v.  Meyer (1).  The case of  bias  of  the  Chief Minister  (respondent 2) has not been made anywhere  in  the petition and we do not think if would be right to permit the petitioner to raise this question, for it depends (1) L.R. (1876) 1 Q.B.D. 173. 109 866 on  facts which were not mentioned in the petition but  were put  forward in a rejoinder to which the respondents had  no opportunity to reply. Finally,  the petitioner denies that the  expunged  portions have  been published. We do not think we should express  any opinion  on this controversy, at any rate, at this stage  If the  Legislature  Assembly  of  Bihar  has  the  powers  and privileges it claims and is entitled to take proceedings for breach  thereof, as we hold it is, then it must be  left  to the  House itself to determine whether there has,  in  fact, been any breach of its privilege.  Thus, it will be for  the House  on  the  advice of its  Committee  of  Privileges  to consider  the true effect of the Speaker’s  directions  that certain portions of the proceedings be expunged and  whether the  publication  of  the speech, if  it  has  included  the portion which had been so directed to be expunged in the eye of the law, tantamount to publishing something which had not been said and, whether such a publication cannot be  claimed to  be a publication of an accurate and faithful  report  of the  speech.  It will, again, be for the House to  determine whether  the  Speaker’s ruling made distinctly  and  audibly that  a portion of the proceedings be expunged amounts to  a direction  to the Press reporters not to publish  the  same, and  whether  the  publication  of the  speech,  if  it  has included  the portion directed to be so expunged, is  or  is not a violation of the order of the Speaker -and a breach of the  privilege of the House amounting to a contempt  of  the Speaker and the House. For reasons stated above we think that this petition  should be dismissed.  In the circumstances, there will be no  order for costs. SUBBA RAO, J.-I have had the advantage of perusing the  well considered  judgment of my.  Lord the Chief Justice.  It  is my misfortune to differ from him and my learned brethren.  I would not have ventured to do so but for my conviction  that the  reasoning  adopted therein would  unduly  restrict  and circumscribe  the  wide  scope and content  of  one  of  the cherished fundamental rights, namely, the freedom of  speech in its application to the Press. 867 This is an application under Article 32 of the  Constitution for  quashing  the  proceedings  before  the  Committee   of Privileges  of  the  Bihar Legislative Assembly  I  and  for restraining  the  respondents, i.e., the Chief  Minister  of Bihar and the said Committee of Privileges, from  proceeding against the petitioner for the s publication in the issue of the  " Searchlight " dated May 31, 1957, an account  of  the debate in the House (The Legislative Assembly, Bihar) on May

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30, 1957, and for other incidental reliefs.  The petitioner, Pandit  M. S. M. Sharma, is the editor of the "  Searchlight ",  an English daily newspaper published from Patna  in  the State  of  Bihar.  On May 30, 1957,  Shri  Maheswara  Prasad Narayan Singh, a member of the State Assembly made a  bitter attack  in  the  Assembly on the Chief  Minister,  Shri  Sri Krishna  Sinha, and on Shri Mahesh Prasad Sinha, a  minister in  the  previous  cabinet, who was  defeated  at  the  last General Elections.  It is said that in regard to that speech the  Speaker  gave a ruling that  certain  portions  thereof should  be expunged from the proceedings.  In the  issue  of the  "  Searchlight"  dated May 31, 1957,  an  accurate  and faithful   account   of  the,  proceedings  of   the   Bihar Legislative  Assembly of May 30, 1957, was  published  under the  caption "BITTEREST ATTACK ON CHIEF MINISTER ".  It  was also indicated in the report that the Speaker had disallowed the member to name Mr. Mahesh Prasad Sinha in respect of the Ministry formation and confined him to his remarks in regard to  his chairmanship of the Khadi Board.  It is  alleged  in the  affidavit that till May 31, 1957, it was not  known  to any  member of the staff of the " Searchlight  ",  including the  petitioner, that any portion of the debate in  question had  been expunged from the official record of the  Assembly proceedings of May 30, 1957, and that in fact the petitioner did not publish the expunged remarks.  This fact was  denied by the respondents in their counter, but it was not  alleged that  the  Speaker  made  any specific  order  or  gave  any direction  prohibiting  the publication of any part  of  the proceedings  of the Assembly in any newspaper.  On June  10, 1957, Shri Nawal Kishore Sinha moved a privilege motion 868 in the House and it was carried, as, presumably, :no one had opposed it.  On the same day, the House referred the  matter to  the Committee of Privileges without fixing any date  for the  presentation  of the report a of  the  Committee.   The Committee  in due course held its meeting presided  over  by the  Chief  Minister and found that a prima  facie  case  of breach   of  privilege  had  been  made  out   against   the petitioner.  Then, the Secretary to the Legislative Assembly issued a notice to the petitioner informing him of the  fact that the Committee had found a prima facie case of breach of privilege made out against him and asking him to show cause, if  any,  on or before September 8,  1958,  why  appropriate action  should  not be taken against him.  Along  with  that notice, a copy of the motion as adopted by the Committee  of Privileges  in  its meeting held on August 10, 1958,  and  a copy  of  a booklet containing a collection  of  the  papers relating to the privilege motion moved by Shri Nawal Kishore Sinha,  M.L.A.,  on June 16, 1957, were enclosed  for  ready reference.   The booklet accompanying the  notice  contained the  motion moved in the House, the report published in  the "Searchlight  "  dated May 31, 1957, and the  rules  of  the Assembly  relating to the Committee of  Privileges.   Though there was some argument on the construction of the terms  of the  resolution  passed by the Committee on account  of  the unhappy  language  in which it was couched, it  is  manifest that   the  breach  of  privilege  pleaded  was   that   the petitioner, by including the expunged portion of the  speech of Maheshwar Prasad Narayan Singh, published a perverted and unfaithful  report of the proceedings of the Assembly.   The petitioner,  thereafter, filed a petition under Art.  32  of the Constitution for the aforesaid reliefs. On  the  aforesaid  facts,  the  learned  Counsel  for   the petitioner,  raised the following points in support  of  the petition  : (1) The petitioner, as a citizen of  India,  has

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the fundamental right under Art. 19 (1) of the  Constitution to  freedom  of speech and expression,  which  includes  the freedom  of propagation of ideas and their  publication  and circulation;  and the Legislature of a State cannot claim  a privilege in such a 869 way  as to infringe that right.  This contention is  put  in two ways: (i) The privilege conferred on the Legislature  of a  State  is subject to the freedom conferred on  a  citizen under  Art. 19 (1) of the Constitution ; and (ii) that  even if  the  privilege  was not expressly made  subject  to  the fundamental  right under Art. 19 (1), having regard  to  the nature   of   the  fundamental  right  and  the   rules   of interpretation, this Court should so construe the provisions as  to give force to both the provisions. (2) Even  if  Art. 194  (3)  overrides the provisions of Art. 19,  the  powers, privileges  and immunities of the House of  Legislature  are only those of the House of Commons of the Parliament of  the United  Kingdom,  at the commencement of  the  Constitution, i.e.,  January  26, 1950; and the House of Commons  on  that date  had  no privilege to prevent the  publication  of  its proceedings or portion expunged by the Speaker in respect of the  proceedings. (3) Under Art. 21 of the Constitution,  no person  is to be deprived of his personal liberty except  in accordance  with the procedure established by law  and  that the  Privilege Committee, by calling upon the petitioner  to appear at the Bar of the Legislature after making an enquiry in violation of the rules, particularly the rr. 207 (2), 208 (3)  and  215 of the rules of the Assembly relating  to  the Committee of Privileges, has infringed his right under  that Article.  (4)  Mr. Maheshwara Prasad Narayan  Singh  made  a bitter  attack  on the Chief Minister and  that  report  was published  in the " Searchlight ". The Chief  Minister,  who has  admittedly control over the Legislature or at any  rate over  the  majority  of the members  of  the  Assembly,  was actuated  by mala fides in securing the initiation  of  the, proceedings against the petitioner for breach of  privilege, and  therefore  his presiding over the meeting of  the  Sub- Committee  would  vitiate its entire  proceedings.  (5)  The Committee  of  Privileges enquired into  an  allegation  not referred to it by the House.  The learned Solicitor General, appearing for the respondents, countered the said  arguments and  his  contentions  may be  summarized  thus:  Under  the Constitution,  no particular Article has more sanctity  than the other, even though that 870 Article  deals with fundamental rights.  Article 194 (3)  is not  made  subject  to Art. 19  of  the  Constitution,  and, therefore, if the House of Commons of the Parliament of  the United  Kingdom  has the power or privilege to  prevent  the publication  of  its  proceedings, or at  any  rate  of  the expunged  portions  of  it, the Legislature of  a  State  in India,  has  also a similar privilege or power  and  it  can exercise it, notwithstanding the fact that it infringes  the fundamental right of a citizen.  The House of Commons of the United  Kingdom  has  such a  privilege  and  therefore  the Legislature of Bihar can exercise it and take action against the  person committing a breach thereof.  While a  Court  of Law  can  decide on the question of the  existence  and  the extent  of  the  privilege of a House, it has  no  power  or jurisdiction to consider whether a particular person in fact committed  a breach thereof.  The Legislature in  this  case has not broken any of the rules of the Assembly relating  to the  Committee of Privileges, and even if it did, by  reason of  Art.  212 (1) of the Constitution, the validity  of  its

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proceedings  cannot  be  questioned on  the  ground  of  any alleged  irregularity  of  the  procedure.   There  was   no allegation  in  the  petition  that  the  Committee  or  the Assembly  was actuated by mala fides and even if  the  Chief Minister was acting with mala fides-which fact was  denied-, the  proceedings  of the Committee or  of  the  Legislature, which  is  the  final authority in the  matter  of  deciding whether  there  was  a breach of  privilege,  would  not  de vitiated.   It  was  also  denied  that  the  Committee   of Privileges  enquired into any allegation not referred to  it by the House. At the outset it would be convenient to clear the ground  of the  subsidiary ramifications falling outside the  field  of controversy  and focus on the point that directly arises  in this  case.   We are not concerned here with  the  undoubted right  of  a State Legislature to control and  regulate  its domestic  affairs.   In " Cases in Constitutional Law  "  by Keir and Lawson, it is stated, at page 126, as follows: "The  undoubted  privileges of the House of Commons  are  of three kinds.  They include (i) exclusive 871 jurisdiction over all questions which arise within the walls of    the    house,   except,   perhaps,    in    case    of felony................................ (ii) Certain personal privileges which attach to members of Parliament.  The  most important of these are freedom of debate, and immunity  from civil arrest during the sitting of Parliament and for  forty days          before         and          after          its assembling.............................. ’ 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’.  (iii)  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." Nor  we are called upon to decide on the scope of a  Court’s jurisdiction to set aside the orders of contempt made by the Legislature or warrants issued to implement the said orders. Reported  decisions  seem  to  suggest  that  if  the  order committing  a  person  for contempt or  the  warrant  issued pursuant thereto discloses the reasons, the Court can decide whether there is a privilege and also its extent; but,  when it purports to issue a bald order, the Court has no power to decide,  on the basis of other evidence, whether in  fact  a breach of privilege is involved.  As this question does  not arise in this case, I need not express any opinion  thereon. The  stand  taken by the Legislature, as  disclosed  in  the notice issued, the enclosed records sent to the  petitioner, in the counter-affidavit filed and the arguments advanced by the respondents, is that the Legislature of a State has  the privilege  to  prevent  any  citizen  from  publishing   the proceedings of the Legislature or at any rate such  portions of  it  as are ordered to be expunged by  the  Speaker,  and therefore  it has a right to take action against the  person committing a breach of such a privilege.  The main question, therefore,   that  falls  to  be  decided  is  whether   the Legislature  has  such  a privilege.  If  this  question  is answered  against the Legislature, no other question  arises for consideration. 872 The   powers,   privileges,  and  immunities  of   a   State Legislature are governed by Art. 194 of the Constitution and the  freedom of propagation of ideas, their publication  and circulation  by Art. 19(1)(a) thereof.  For  convenience  of reference, both these articles may be read in juxtaposition.

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Article 19 reads: " (1) All citizens shall have the right- (a) to freedom of speech and expression  .......................................................... (2)  Nothing  in sub-clause (a) of clause (1)  shall  affect the operation of any existing law, or prevent the State from making  any  law, in so far as such law  imposes  reasonable restrictions  on the exercise of the right conferred by  the said  sub-clause  in the interests of the  security  of  the State, friendly relations with foreign States, public order, decency  or morality, or in relation to contempt  of  court, defamation or incitement to an offence." Article 194 states: " (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 the Parliament  of the  United Kingdom- and of its members and  committees,  at the commencement of this Constitution. 873  (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." In  Romesh  Thappar v. The State of Madras (1),  this  Court ruled that freedom of speech and expression includes freedom of  propagation of ideas and that freedom is ensured by  the freedom   of  circulation.   This  freedom  is,   therefore, comprehensive  enough to take in the freedom of  the  press. The  said view is accepted and followed in Brij  Bhushan  v. The State of Delhi (2).  To the same effect is the  decision of  this Court in Express Newspapers Ltd. v. Union of  India (3),  where  Bhagwati, J., delivering the  judgment  of  the Court,  held that freedom of speech and expression  includes within  its scope the -freedom of the Press.  In  Srinivasan v. The State of Madras (4) it was held, on the basis of  the view  expressed by this Court, that the terms "  freedom  of speech  and  expression  "  would  include  the  liberty  to propagate  not  only one’s own views but also the  right  to print matters which are not one’s own views but have  either been  borrowed  from someone else or are printed  under  the direction  of that person.  I would, therefore, proceed  to, consider the argument advanced on the basis that the freedom of speech in Art. 19(1)(a) takes in also the freedom of  the Press in the comprehensive sense indicated by me supra.  The importance of the freedom of speech in a democratic  country cannot  be over-emphasized, and in recognition thereof,  cl. (2)  of  Art.  19  unlike other  clauses  of  that  Article, confines  the scope of the restrictions on the said  freedom within  comparatively narrower limits.  Clause  (2)  enables the State to impose reasonable restrictions on the  exercise

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of  the  said right in the interest of the security  of  the State, friendly relations with foreign States, public order, decency or (1) [1950] S.C.R. 594.            (2) [1950] S.C.R. 605. (3) [1959] S.C.R. 12, 118.        (4) A.I.R. (1951) Mad. 70. 110 874 morality, or in relation to contempt of Court defamation  or incitement  to an offence.  The said Article finds place  in Part  III under the heading " Fundamental Rights ".  Article 13  makes laws that are  inconsistent with or in  derogation of  the  fundamental  rights void  and  clause  (2)  thereof expressly   prohibits   the  State  from  making   laws   in contravention of the said rights.  In the words of Patanjali Sastri,  C.  J., the said rights in Part III  are  "  rights reserved by the people after delegation of the rights by the people to the institutions of government ". It is true,  and it cannot be denied, that notwithstanding the transcendental nature of the said rights, the Constitution may empower  the Legislature to restrict the scope of the said rights  within reasonable  bounds, as in fact it did under cls. (2) to  (6) of Art. 19.  Such restrictions may be by express words or by necessary  implication.But  the Court would not  and  should not,  having  regard to the nature of  the  rights,  readily infer such a restriction unless there are compelling reasons to  do  so.  The Constitution adopted  different  and  well- understood  phraseology  to resolve  conflicts  and  prevent overlapping  of  various  provisions.   Some  Articles   are expressly  made  subject  to  the  provisions  of  the  Con- stitution-vide Arts. 71(3), 73(1), 105, 131, etc.-, and some to specified Articles-vide Arts. 81, 107(1), 107(2)  114(3), 120(1),    etc.    Some   Articles   are   made    effective notwithstanding  other provisions in the Constitution  -vide Arts.  120(1),  136(1),  143(2),  169(1),  etc.   Where  the Constitution  adopts one or other of the said  two  devices, its intention is clear and unambiguous; but, there are other Articles which are not expressly made subject to  provisions of the Constitution or whose operation is not made effective notwithstanding any other provisions.  In such cases, a duty is  cast  upon the Court to ascertain the intention  of  the Constituent Assembly.  Cooley in his " Constitutional Law  " points  out  that " however carefully constitutions  may  be made,  their meaning must be often drawn in question  ".  He lays down, at page 427, the following rule, among others, as a guide to the construction of these instruments:                  875 "The  whole  instrument is to be examined, with  a  view  of determining the intention of each part.  Moreover, effect is to  be given, if possible, to the whole instrument,  and  to every  section and clause.  And in interpreting  clauses  it must be presumed that words have been used in their  natural and ordinary meaning. The  rule  may  also be stated in a different  way:  If  two Articles  appear to be in conflict, every attempt should  be made  to reconcile them or to make them to  co-exist  before excluding or rejecting the operation of one. Article  194(3)  of  the Constitution,  with  which  we  are concerned,  does  not  in express  terms  make  that  clause subject to the provisions of the Constitution or to those of Art.  19.  Article 194 has three clauses.  The first  clause declares  that  there  shall be freedom  of  speech  in  the Legislature  of  every State and that freedom  is  expressly made  subject to the provisions of the Constitution  and  to the  rules and the standing orders regulating the  procedure of the Legislature.  Clause (2) gives protection to  members

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of  the  Legislature of a State from any  liability  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 to every person in respect of the publication by or  under the authority of a House of such a Legislature  of any  report, paper, votes or procedure.  The  third  clause, with  which  we are now directly concerned, confers  upon  a House  of the Legislature of a State and of the members  and the  committees  thereof  certain  powers,  privileges   and immunities.  It is in two parts.   The first part says  that 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  the second  part declares that until so defined, they  shall  be those  of  the  House of Commons of the  Parliament  of  the United  Kingdom  and  its members  and  committees,  at  the commencement of the Constitution.  The question is whether 876 this  clause confers on the Legislature  powers,  privileges and immunities so as to infringe the fundamental right of  a citizen under Art. 19(1)(a) of the Constitution.  The  first thing  to  be  noticed is that while Art.  19(1)(a)  of  the Constitution deals with the freedom of Speech and expression of  a  citizen,  Art. 194(1) declares that  there  shall  be freedom of speech in the Legislature of every State.   While Art.  19(1)  is  general in terms and  is  subject  only  to reasonable  restrictions made under clause (2) of  the  said Article, Art. 194(1) makes the freedom of speech subject  to the  provisions of the Constitution and rules  and  standing orders regulating the procedure of the Legislature.   Clause (2)  flows from cl. (1) and it affords protection from  lia- bility to any proceedings in a Court for persons in  respect of the acts mentioned therein.  But these two provisions  do not  touch  the fundamental right of a  citizen  to  publish proceedings  which he is entitled to do under Art. 19(1)  of the  Constitution.   That is dealt with by  el.  (3).   That clause  provides for powers, privileges and immunities of  a House  of the Legislature of a State and of the members  and the committees of a House, other than those specified in cl. (2).  it is not expressly made subject to the provisions  of the  Constitution.   I  find it difficult to  read  in  that clause the opening words of el. (1), viz.,, " subject to the provisions of this Constitution ", for two reasons: (i) cl. (3)  deals  with a subject wider in scope  than  cl.(1)  and therefore did not flow from cl. (1); and (ii)  grammatically it  is not possible to import the opening words of  cl.  (1) into cl. (3).  Therefore, I shall proceed on the basis  that cl.  (3)  is  not  expressly made  subject  to  Art.  19  or expressly   made  independent  of  other  Articles  of   the Constitution.  We must, therefore, scrutinize the provisions of that clause in the context of the other provisions of the Constitution  to ascertain whether by necessary  implication it excludes the operation of Art. 19.  The first thing to be noticed  in  cl. (3) of Art. 194 is  that  the  Constitution declares  that  the powers, privileges and immunities  of  a House of Legislature of a State and of the members and  com- mittees of a House of such Legislature are such as 877 defined by the Legislature by law.  In the second part, as a transitory  measure,  it  directs  that  till  they  are  so defined,  they 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 the Constitution.  I find it impossible to accept the contention that the second  part

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is not a transitory provision; for, the said argument is  in the  teeth  of  the  express  words  used  therein.   It  is inconceivable  that the Constituent Assembly, having  framed the  Constitution  covering various fields  of  activity  in minute  detail,  should  have  thought  fit  to  leave   the privileges of the Legislatures in such a vague and  nebulous position  compelling the Legislatures to ascertain the  con- tent  of their privileges from those obtaining in the  House of  Commons  at the commencement of the  Constitution.   The privilege  of  the House of Commons is  an  organic  growth. Sometimes a particular rule persists in the record but falls into  disuse  in  practice.   Privileges,  just  like  other branches of common law, are results of compromise  depending upon the particular circumstances of a given situation.  How difficult  it is to ascertain the privilege of the House  of Commons  and  its  content and extent in  a  given  case  is illustrated by this case. Reliance  is placed upon other Articles of the  Constitution in support of the contention that the second part of cl. (3) is not intended to be transitory in nature.  Under Art.  135 of  the  Constitution,  until Parliament  by  law  otherwise provides,  the  Supreme Court shall have  certain  appellate jurisdiction.  Under Art. 137, subject to the provisions  of any law made by Parliament or any rules made under Art. 145, the  Supreme Court shall have power to review  any  judgment pronounced  or  order  made by  it.   Article  142(2)  says: "Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respect the whole of the territory of India, have all and every power to make any order  for  the purpose of securing the  attendance  of  any person, the discovery or production of any documents, or the investigation  or  punishment of any  contempt  of  itself." Article 145 878 reads:"Subject  to  the  provisions  of  any  law  made   by Parliament,  the Supreme Court may from time to  time,  with the  approval  of the President, make rules  for  regulating generally    the    practice   and    procedure    of    the Court.............  Under  Art.  146(2),  "Subject  to   the provisions of any law made by Parliament, the conditions  of service of officers and servants of the Supreme Court  shall be  such  as may be prescribed by rules made  by  the  Chief Justice  of India or by some other Judge or officer  of  the Court authorised by the Chief Justice of India to make rules for  the purpose." Under Art. 187(3), " Until  provision  is made  by the Legislature of the State under clause (2),  the Governor  may,  after consultation with the Speaker  of  the Legislative  Assembly  or the Chairman  of  the  Legislative Council,  as  the  case may be, make  rules  regulating  the recruitment,  and  the  conditions  of  service  of  persons appointed,  to the secretarial staff of the Assembly or  the Council, and any rules so made shall have effect subject  to the  provisions  of any law made under the  said  clause  ". Clause (2) of Art. 210 says " Unless the Legislature of  the State  by law otherwise provides, this article shall,  after the  expiration  of  a  period of  fifteen  years  from  the commencement  of  this Constitution, have effect as  if  the words I or in English’ were  omitted therefrom." I  do  not see any analogy between the first  part  of  Art. 194(3)  and  the  provisions  of  the  aforesaid   Articles. Firstly, the said Articles do not import into India the  law of  a  foreign  country;  secondly,  they  either  make  the existing  law subject to the provisions of any law  made  by Parliament,  or  declare  a particular law to  be  in  force unless  modified by Parliament; whereas in Art.  194(3)  the

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Constitution  expressly declares that the law in respect  of powers, privileges and immunities is that made by a House of the Legislature from time to time and introduces a rider  as a transitory measure that till such law is made, the powers, privileges and immunities of the House of Commons should  be those of the Legislature also.  I have no doubt,  therefore, that  part  two of cl..(3) of Art. 194 is intended to  be  a transitory provision and ordinarily, 879 unless there is a clear intention to the contrary, it cannot be  given a higher sanctity than that of the first  part  of cl. (3).  The first part of el. (3) reads: 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............. Article 245 enables a State to make laws for the whole or any part of the State.  Article 246(3) pro- vides that the Legislature of any State has exclusive  power to  make laws with respect to any of the matters  enumerated in  List  II in the Seventh Schedule  (in  the  Constitution referred  to as the " State List ").  Item 39 of List II  of the Seventh Schedule enumerates the following matters  among others:   "  Powers,  privileges  and  immunities   of   the Legislative  Assembly and of the members and the  committees thereof............. Clause (2) of Art. 13, which is one  of the  Articles  in Part III relating to  fundamental  rights, prohibits the State from making any law which takes away  or abridges the rights conferred by that Part and declares that any  law made in contravention of that clause shall  to  the extent  of  the contravention be void.   It  is,  therefore, manifest that the law made by the Legislature in respect  of the  powers,  privileges and immunities of a  House  of  the Legislature of a State, would be void to the extent the  law contravened   the  provisions  of  Art.  19(1)(a)   of   the Constitution,  unless  it is saved by  any  law  prescribing reasonable restrictions within the ambit of Art. 19(2).   So much  is conceded by the learned Solicitor  General.   Then, what  is  the reason or justification for holding  that  the second part of that clause should be read in a different way as  to  be free from the impact of the  fundamental  rights. When  the Constitution expressly made the  laws  prescribing the privileges of the Legislature of a State of our  country subject  to  the fundamental rights, there  is  no  apparent reason  why they should have omitted that limitation in  the case  of  the  privileges of the Parliament  of  the  United Kingdom  in  their application to a State  Legislature.   We cannot assume that 880 the framers of the Constitution thought that the  privileges of  the  House of Commons were subject  to  the  fundamental rights  in  that country; for, to assume that is  to  impute ignorance  to  them of the fact that the Parliament  of  the United Kingdom was supreme and there were no fetters on  its power  of  legislation.  The contention also,  if  accepted, would lead to the anomaly of a law providing for  privileges made  by  Parliament or a Legislature of our  country  being struck down as infringing the fundamental rights, while  the same  privilege or privileges, if no law was made, would  be valid.    Except   the  far-fetched  suggestion   that   the Constitution-makers   might  have  thought  that   all   the privileges  of  the House of Commons, being  the  mother  of Parliaments, would not in fact offend the fundamental rights and that, therefore, they designedly left them untouched  by Part III as unnecessary or the equally untenable guess  that

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they  thought that for a temporary period the operation  and the extent of the said privileges need not be curtailed,  no convincing  or  even  plausible reason is  offered  for  the alleged different treatment meted out to the said privileges in  the  said  two parts of el. (3).   If  the  Constitution intended  to make the distinction, it would have opened  the second  part  of cl. (3) with the  words  "  Notwithstanding other provisions of the Constitution or those of Art. 19 ". I  cannot also appreciate the argument that Art. 194  should be  preferred to Art. 19(1) and not vice versa.   Under  the Constitution,  it  is  the  duty of this  Court  to  give  a harmonious construction to both the provisions so that  full effect  may be given to both, without the one excluding  the other.   There is no inherent inconsistency between the  two provisions.   Article 19(1) (a) gives freedom of speech  and expression  to  a  citizen, while the second  part  of  Art. 194(3)  deals with the powers, privileges and immunities  of the  Legislature  and of its members  and  committees.   The Legislature  and its members have certainly a wide range  of powers  and  privileges  and  the  said  privileges  can  be exercised  without infringing the rights of a  citizen,  and particularly of one who is not a member of the Legislature. 881 When there is a conflict, the privilege should yield to  the extent it affects the fundamental right.  This  construction gives  full  effect to both the Articles. A  This  Court  in Gunupati Keshavram Reddy v. Nafisul Hasan (1) held that  the order  of  arrest  of Mr. Mistry and his  detention  in  the Speaker’s  custody  was a breach of the provisions  of  Art. 22(2)  of the Constitution.  In that case, the  said  Mistry was  directed  by  the  Speaker of  the  U.  P.  Legislative Assembly to be arrested and produced before him to answer  a charge of breach of privilege.  Though the question was  not elaborately  considered,  five  judges  of  this  Court  un- animously  held  that the arrest was a clear breach  of  the provisions  of  Art. 22(2) of  the  Constitution  indicating thereby that Art. 194 was subject to Articles of Part III of the Constitution.  I am bound by the decision of this Court. In   the  result,  I  hold  that  the  petitioner  has   the fundamental  right to publish the report of the  proceedings of  the Legislature and that, as no reasonable  restrictions were  imposed  by  law on the said  fundamental  right,  the action of the respondents infringes his right entitling  him to the relief asked for. This  case  does  not,  as  it  is  supposed  or   suggested illustrate  any  conflict between the  Legislature  and  the Court,  but  it  is  one between  the  Legislature  and  the citizens of the State whose representatives constituted  the Legislature.  I yield to none in my respect for that  august body,  the  Legislature of the State; but, we  are  under  a duty, enjoined on this Court by Art. 32 of the Constitution, to protect the rights of the citizens who in theory reserved to  themselves certain rights and parted only the others  to the   Legislature.    Every  institution  created   by   the Constitution, therefore’ should function within its allotted field and cannot encroach upon the rights of the people  who created  the  institutions.  It may not be out of  place  to suggest   to  the  appropriate  authority  to  make  a   law regulating  the  powers, privileges and  immunities  of  the Legislature instead of keeping this branch of law in a nebu- lous state, with the result that a citizen will have to (1)  A.I.R. (1954) S.C. 636. 882 make a research into the unwritten law of the privileges  of

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the House of Commons at the risk of being called before  the Bar of the Legislature. The  said  conclusion  would be  sufficient  to  dispose  of this  petition.   But as it was argued at  some  length,  it would be as well that I expressed my opinion on the question of the existence and the extent -of the relevant  privileges of  the  House  of  Commons  at  the  commencement  of   the Constitution.  Before considering that question, it would be convenient  to  notice  briefly  the  scope  of  a   Court’s jurisdiction to investigate the nature and the extent of the privilege claimed by the House of Commons.  It is often said that  each House of Parliament is the sole judge of its  own privileges.  But early in the history of British  Parliament the  question of the scope of that equivocal  statement  was raised  and it was contended that the  House’s  jurisdiction was  confined  only within the limits of the  privileges  as defined by the Courts of Common Law.  The said question  was raised  and decided in Ashby v. White (1), Paty’s Case  (2), Stockdale  v. Hansard (3) and in the Case of the Sheriff  of Middlesex(1).  In the said cases, the Common Law rights of a citizen  were  threatened  by the House of  Commons  on  the ground  that the person concerned committed a breach of  the privilege  of  the  House.  The  combined  effect  of  these decisions is that " the Courts deny to the Houses the  right to determine the limits of their privileges, while  allowing them within those limits exclusive jurisdiction " In Anson’s Law  and Custom of the Constitution, the principle has  been neatly stated, at page 190, thus:- " The Privileges of Parliament, like the prerogative of  the Crown, are rights conferred by law, and as such their limits are ascertainable and determinable, like the limits of other rights,  by  the Courts of Law." As  the  learned  Solicitor General  conceded  the  said legal  position,  it  would  be unnecessary  to  pursue the matter further or  consider  the decisions in greater detail. The  main question, therefore, that falls to be  decided  is the existence and the extent of the privilege (1)  (1703) 2 Ld.  Raym. 938. (3)  (1839) 9 A. & F. (2)  (1704) 2 Ld.  Raym. 1105. (4)  (1840) 11 A, & E. 809.                  883 claimed by the respondents.  As the privilege claimed by the respondents  is in derogation of the fundamental right of  a citizen,  the burden lies heavily upon them to establish  by clear  and  unequivocal evidence that the House  of  Commons possessed  such a privilege.  In the words of Coke " as  the privilege  is part of the law of custom of  the  Parliament, they  must be collected out of the rolls of  Parliament  and other  records and by precedent and continued experience  ". They can be found only in the Journals of the House compiled in the Journal Office from the manuscript minutes and  notes of  proceedings made by the clerks at the table  during  the sittings  of  the House.  Decided cases and  the  text-books would  also  help  us to ascertain  the  privileges  of  the Houses.  The words " at the commencement of the Constitution " indicate that the privileges intended to be attracted  are not  of  the  dark and difficult days,  when  the  House  of Commons  passed through strife and struggle, but only  those obtaining  in  1950,  when it was  functioning  as  a  model Legislature  in  a  highly  democratized  country.   In  the circumstance,  a  duty  is  cast  upon  the  respondents  to establish   with  exactitude  that  the  House  of   Commons possessed  the  particular  privilege claimed  at  the  com- mencement of the Constitution.

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The  respondents claimed two privileges: (i) that the  House of  Commons has the privilege of preventing the  publication of  its proceedings ; and (ii) that it has the privilege  to prevent  the  publication of that part  of  the  proceedings directed  by the Speaker to be expunged.  Indeed the  second privilege  is  in fact comprehended by the first,  which  is larger in scope. A   history  of  the  said  privilege  is  given  in   May’s Parliamentary  Practice  as well as in  Halsbury’s  Laws  of England.  In Halsbury’s Laws of England, 2nd Edition, Volume 24 (Lord Hailsham’s Edition), it is stated at pages  350-351 as follows: It is within the power of either House of Parliament, should it  deem  it expedient, to prohibit the publication  of  its proceedings. In  the House of Lords, it is a breach of privilege for  any person to print or publish anything relating to 884 the  proceedings of the House without its  permission.   The House  of  Commons, upon many occasions,  has  declared  the publication of its proceedings without the authority of  the House  to be a breach of privilege, and the House has  never formally rescinded the orders which from time to time it has made  with  regard to this subject.  At  the  present  time, however,  neither  House  will  consider  a  report  of  its proceedings  in  a newspaper or other publication  to  be  a breach  of its privileges, unless such report is  manifestly inaccurate or untrue." At  page  350 in the foot-note (d) the history of  the  said privilege is given thus:- "  The jealousy of the House -of Commons with regard to  the privacy  of its proceedings dates from the Long  Parliament, and  was  due to the antagonism which existed  between  that assembly and the King.  The object of the House at that time was  to prevent its own members or officers  from  supplying the  King with information which might incriminate its  mem- bers;  see Resolutions of the House of Commons of  July  13, 1641 (Journals of the House of Commons, 1641, Vol.  II, page 209).   It was not until -after the Revolution of 1689  that the  House  came in contact with  unofficial  reporters  who furnished,  for the news letters of the day, reports,  often prejudicial and generally inaccurate, of the proceedings  of the Commons.  In 1738 the House passed a resolution  stating that  it was " an high indignity to, and a notorious  breach of privilege of, this House, for any news writer, in letters or   other   papers  (as  minutes,  or   under   any   other denomination),  or  for  any printer  or  publisher  of  any printed newspaper of any denomination to insert in the  said letters  or  papers, or to give therein any account  of  the debates or other proceedings Of this House or any  committee thereof,  as  well  during the recess,  as  the  sitting  of Parliament; and that this House will proceed with the utmost severity  against such offenders (Journals of the  House  of Commons,  1738, Vol.  XXIII, p. 148; Parliamentary  History, Vol.  X, pp. 799-811).  This resolution was repeated in 1753 and 1762;  see Journals of the House of 885 Commons,  1753,  Vol.  XXVI, p. 754; 1762, Vol.   XXIX,  pp. 206,  207.   But,  in spite of the attitude  of  the  House, unofficial  reports  of  the proceedings  of  the  House  of Commons  were  still  published, and  in  1771,  during  the disturbances  caused by John Wilkes, the claim of the  House to  forbid the publication of its debates led to a  struggle between  the Commons and the City of London which,  although it resulted in the committal to prison of the Lord Mayor and

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two  alder. men, practically put an end to the  attempts  of the  House  of  Commons to prevent the  publication  of  its debates." Much to the same effect it is stated in May’s  Parliamentary Practice: at page 54, the learned author, under the  heading " Right to control publication of Debates and  Proceedings", observes: " Closely’ connected with the power to exclude strangers, so as  to  obtain, when necessary, such privacy as  may  secure freedom of debate, is the right of either House to  prohibit the publication of debates or proceedings.  The  publication of the debates of either House has been repeatedly  declared to  be  a  breach of privilege,  and  especially  false  and perverted  reports of them; and no doubt can exist  that  if either  House desire to withhold their proceedings from  the public,   it  is  within  the  strictest  limits  of   their jurisdiction to do so, and to punish any violation of  their orders." After  tracing  the history of the privilege,  the  practice obtaining in modern times is described thus: "  The  repeated  orders made by the  House  forbidding  the publication of the debates and proceedings of the House,  or of any committee thereof, and of comments thereon, or on the conduct of Members in the House, by newspapers, newsletters, or  otherwise,  and directing the  punishment  of  offenders against  such  rules, have long since  fallen  into  disuse. Indeed,  since  1909,  the debates have  been  reported  and issued by an official reporting staff under the authority of Mr.  Speaker,  and are sold to the public by  Her  Majesty’s Stationery Office." The same idea is repeated at page 56 as follows:- 886 "  So  long  as the debates  are  correctly  and  faithfully reported,  however,  the  privilege  which  prohibits  their publication is waived." At page 118, the same result is described in different words thus:  "So  long  as  the debates  are  correctly  and  faithfully reported,  the orders which prohibit their  publication  are not  enforced  ; but when they are reported mala  fide,  the publishers of newspapers are liable to punishment." Then   the  following  eight  instance  of  misconduct,   in connection  with the, publication of the debates   which  is generally treated as a breach of privilege of the House  are given by the learned author : (i)  Publishing a false account of proceedings of the  House of Lords; (ii) Publishing  scandalous  misrepresentation of  what  had passed in either House or what had been said in debate; (iii)  Publishing  gross  or  wilful  misrepresentations  of particular Members, speeches; (iv) Publishing  under  colour  of a report  of  a  Member’s speech a gross libel on the character and conduct of another Member; (v)  Suppressing speeches of particular Members (vi) Publishing  a proceeding which the House of  Lords  had ordered to the expunged from the journals; (vii)     Publishing  a libel on counsel appearing before  a committee  under  colour of a report of the  proceedings  of such committee; and (viii)  Publishing  a  forged paper, publicly  sold  as  His Majesty’s speech to both Houses. It  would  be seen from the instances that mala fides  is  a necessary  ingredient  of  the publication  to  attract  the doctrine  of privilege and that the instances given  are  of

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the  period between 1756 to 1893.  One of the  instances  on which  strong  emphasis  is laid by  the  learned  Solicitor General is the-publishing of a proceeding which the House of Lords  bad ordered to be expunged from the Journals.   Apart from  the fact that the instance in question relates to  the House  of  Lords,  the Journal is not available  for  us  to ascertain 887 under  what circumstances the publication was  made  Further the instance was of the year 1801 and no other instances  of that kind appear to have occurred from 1801 to 1950.  In the circumstances,  on the authority of May, it may be  accepted that the House of Lords asserted the privilege in 1801  when its  proceedings were published mala fide, though they  were expressly ordered to be expunged. Cockburn, C. J., in Wasan v. Walter(1) forcibly pointed  out the  irrelevance  of  the privilege claimed  in  the  modern democratic  set up.  At page 89, the learned  Chief  Justice observed : " It seems to us impossible to doubt that it is of paramount public  and national importance that the proceedings of  the houses  of Parliament shall be communicated to  the  public, who have the deepest interest in knowing what passes  within their walls, seeing that on what is there said and done, the welfare  of  the  community depends.   Where  would  be  our confidence  in  the  government of the  country  or  in  the legislature  by  which  our laws are framed,  and  to  whose charge  the great interests of the country  are  committed,- where  would  be our attachment to  the  Constitution  under which  we live,-if the proceedings of the great  council  of the  realm were shrouded in secrecy and concealed  from  the knowledge  of  the nation ?  How  could  the  communications between   the  representatives  of  the  people  and   their constituents,  which are so essential to the working of  the representative  system,  be  usefully  carried  on,  if  the constituencies   were  kept  in  ignorance  of  what   their representatives  are doing?  What would become of the  right of  petitioning on all measures pending in  Parliament,  the undoubted right of the subject, if the people are to be kept in  ignorance of what is passing ID either house?   Can  any man  bring  himself  to doubt that the  publicity  given  in modern  times to what passes in Parliament is  essential  to the  maintenance  of the relations  subsisting  between  the government,  the legislature, and the country at large ?  It may, no doubt, be said that, while it may be necessary as  a matter of national interest that the (1)  (1868) L.R. 4 Q.B. 73. 888 proceedings of Parliament should in general be made  public, yet  that debates in which the character of  individuals  is brought into question ought to be suppressed.  But to  this, in  addition to the difficulty in which  parties  publishing parliamentary  reports would be placed, if this  distinction were  to be enforced and every debate had to  be  critically scanned  to see whether it contained defamatory  matter,  it may be further answered that there is perhaps no subject  in which  the  public have a deeper interest than in  all  that relates  to the conduct of public servants of the  State,-no subject  of parliamentary discussion which more requires  to be made known than an inquiry relating to it". At  page  95,  dealing with the contention  based  upon  the Standing Orders of both the Houses of Parliament prohibiting the  publication  of  the  proceedings,  the  learned  Chief Justice proceeded to state as follows: "  The  fact, no doubt, is, that each  house  of  Parliament

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does,  by its standing orders, prohibit the  publication  of its debates.  But, practically, each house not only permits, but  also sanctions and encourages, the publication  of  its proceedings, and actually gives every facility to those  who report them.  Individual members correct their speeches  for publication in Hansard or the public journals, and in  every debate  reports  of former speeches containing  therein  are constantly   referred   to.   Collectively,   as   well   as individually, the members of both houses would deplore as  a national  misfortune the withholding their debates from  the country  at large.  Practically speaking, therefore,  it  is idle   to   say  that  the  publication   of   Parliamentary proceedings  is  prohibited  by  Parliament.   The  standing orders  which prohibit it are obviously maintained  only  to give  to each house the control over the publication of  its proceedings,  and the power of preventing or correcting  any abuse of the facility afforded." I  have  given  the said passages in extenso  as  they  give neatly and graphically not only the extent of the  privilege in  modern  times, but the reasons for and  the  process  by which the larger concept of the privilege has been gradually reduced to its present form.  These 889 are  weighty observations and, if they were  appropriate  to the conditions obtaining in the 19th century, they would  be more so in 1950, when the parliamentary system of government was perfected in England. Jennings in his book on " The British Constitution states at page 82 thus: "  All  this assumes, of course, that the House  debates  in public.  Government and Opposition speak to each other,  but for  the  education of the people.  The  criticisms  brought against  the  Government  are  the  criticisms  of  ordinary individuals;  the  answers of the  Government  are  formally answers  to  the  Opposition,  but  substantially  they  are replies to the questions raised in the factory, the  railway carriage  and  the  office.  The members  of  the  House  of Commons  were not elected for their special  qualifications, but because they supported the policies which the  majority, of their constituents were prepared to accept.  They have no authority except as representatives, and in order that their representative  character may be preserved they must  debate in  public.  Secret sessions were suited to  the  oligarchic government of the eighteenth century.  They are the negation of  democratic principles.  No doubt there  are  exceptional occasions when secrecy is justified." This passage succinctly gives the principles underlying  the doctrine that in a democratic country, debates in Parliament are  public and there should not be any prohibition  against the publication of the said debates. The  extent  of  the privilege of the House  of  Commons  in regard  to the publication of its proceedings may be  stated thus: In the seventeenth century, the House of Commons  made standing   orders   prohibiting  the  publication   of   its proceedings.   But that was a necessary precaution  in  that critical period when the representatives of the people  were in conflict with the crown and they were careful that  their proceedings  should not reach the ear of the Crown.  In  the aristocratic   eighteenth   century,   the   opposition   to publication   was   founded  not  only  on   the   fear   of misrepresentation, 112 890 but  on impatience of the pressure of public  opinion.   But gradually  and imperceptibly, as a result of  conflicts  and

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compromises  and as Parliamentary form of government  became perfect  and broad based, not only publication  was  allowed but  actually  encouraged by the House of Commons.   In  the year  1950,  it would be unthinkable and indeed  would  have been  an extraordinary phenomenon for the House  Of  Commons claiming the privilege of preventing the publication of  its proceedings.  The said orders, though not expressly repealed or  modified,  were no longer enforced  in  accordance  with their  tenor;  but were in effect modified by  practice  and precedents.   The  stringent part of the orders  had  fallen into  disuse and in practice it was restricted to mala  fide publication  of the proceedings. 1, therefore, hold that  in the  year  1950, the House of Commons had  no  privilege  to prevent the publication of the correct add faithful  reports of its proceedings save those in the case of secret sessions held under exceptional circumstances and had only a  limited privilege  to prevent mala fide publication of garbled,  un- faithful or expunged reports of the proceedings. It  follows  from  my view, namely,  that  the  petitioner’s fundamental right under Art. 19(1) is preserved despite  the provisions  of  Art. 194(3) of the  Constitution,  that  the petitioner  is  entitled to succeed.  I am  further  of  the opinion  that  even  if  Art.  194(3)  of  the  Constitution excludes the operation of Art. 19(1), the petitioner in  the circumstances  of the present case would not be in  a  worse position.  That apart, the charge as disclosed either in the notice served on the petitioner or in the enclosures annexed thereto  does  not  impute any mala fide  intention  to  the petitioner.   The  notice only says that  the  Committee  of Privileges, on the basis of the publication of the news item in  the  " Searchlight ", found that a prima facie  case  of breach   of  privilege  has  been  made  out   against   the petitioner.  The resolution enclosed therein indicates  that the  petitioner committed a breach of privilege by  printing the  expunged  portion of the speech  of  Maheshwara  Prasad Narayan   Singh  and  thereby  published  a  perverted   and unfaithful report of the proceedings.  Other documents 891 enclosed  with  the notice contained a motion moved  in  the House   by  another  member  charging  the  petitioner   for publishing   the  expunged  portion  of  the  speech.    The petitioner  in his petition states that till May 31, it  was not known to any member of the staff of the " Searchlight ", including  the petitioner, that any portion of s the  debate in  question had been expunged from the official  record  of the  Assembly.   Though  in  the  official  record  of   the proceedings,  portions  of  the speech  reported  have  been expunged, no order of the Speaker expunging any portions  of the  speech made on May 30, has been  produced.   Admittedly there   was  no  order  of  the  Speaker   prohibiting   the publication  of the expunged portion of the speech.  In  the counter-affidavit  filed  by the respondents, they  did  not allege any mala fides to the petitioner but they took  their stand on the fact that the Legislature had the privilege  of preventing the petitioner from publishing the expunged  por- tion  of  the  speech.  In the  circumstances,  neither  the notice  nor the documents enclosed with the notice  disclose that  the  petitioner published the  speech,  including  the expunged portion mala fide, or even with the knowledge  that any portion of the speech was directed to be expunged.  As I have  pointed  out,  the Legislature has  the  privilege  of preventing only mala fide publication of the proceedings  of the  Legislature and, as in this case the petitioner is  not alleged  to  have done so, the Legislature has no  power  to take any action in respect of the said publication.

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In  the  result,  the  petition  is  allowed.   A  Writ   of Prohibition  will  issue restraining  the  respondents  from proceeding against the petitioner for the alleged breach  of privilege by publishing in the issue of the " Searchlight ", dated  May 31, 1957, an account of the debate of  the  House (Legislative Assembly, Bihar) of May 30, 1957.                     ORDER In  view  of the judgment of the majority, the  petition  is dismissed.  There will be no order as to costs. 892