30 September 1964
Supreme Court








DATE OF JUDGMENT: 30/09/1964


CITATION:  1965 AIR  745            1965 SCR  (1) 413  CITATOR INFO :  R          1966 SC1441  (3)  R          1967 SC1639  (8)  D          1970 SC1573  (7)  R          1971 SC1132  (50)  RF         1973 SC1461  (503,1119)  E&R        1974 SC 710  (90)  RF         1975 SC2299  (78,180,571,594)  E&R        1978 SC  68  (253)  R          1978 SC 727  (47)  RF         1979 SC 478  (8,101)  RF         1984 SC 684  (65)  R          1988 SC1208  (16)  RF         1989 SC 653  (11)  R          1991 SC2176  (38,51)  RF         1992 SC 320  (32)  RF         1992 SC2219  (71,93)

ACT: Constitution of India, Art. 143(1)-Reference under,  whether must relate to matters pertaining to President’s powers  and duties   under  the  Constitution-Refusal  to  answer   when justifiable. Constitution  of India, Art. 194(3)-Privileges of  House  of Commons  conferred  on Indian  State  Legislatures-Power  to commit  for contempt by conclusive general  warrant  whether one  of  such  privileges---Privileges  whether  subject  to provisions  of the Constitution and to  fundamental  rights- Power  to  determine  scope  of  privileges  whether   rests entirely with legislatures to the exclusion of the Courts. Constitution of India, Arts. 32, 226-Power of Supreme  Court and High Courts to entertain petitions challenging  legality of  committals for contempt by State  Legislatures-Power  to interfere where breach of fundamental rights alleged. Constitution   of  India,  Art.  211-Whether  directory   or mandatory-Its impact on Art.194(3).




The  Legislative  Assembly  of the State  of  Uttar  Pradesh committed  one Keshav Singh,who was not one of its  members, to  prison for its contempt.  The warrant of  committal  did not  contain  the facts constituting the  alleged  contempt. While  undergoing  imprisonment for  the  committal,  Keshav Singh  through his Advocate moved a petition under Art.  226 of the Constitution and s. 491 of the Code of Criminal  Pro- cedure, challenging his committal as being in breach of  big fundamental  rights; he also prayed for interim  bail.   The High  Court  (Lucknow Bench) gave notice to  the  Government Counsel  who  accepted it on behalf of all  the  respondents including  the Legislative Assembly.  At the time fixed  for the  hearing of the bail application the Government  Counsel did   not  appear.   Beg  and  Saghal  JJ.  who  heard   the application  ordered that Keshav Singh be released  on  bail pending  the decision of his petition under Art.  226.   The Legislative  Assembly  found  that  Keshav  Singh  and   his Advocate in moving the High Court, and the two Judges of the High  Court in entertaining the petition and  granting  bail had  committed  contempt  of  the  Assembly,  and  passed  a resolution  that  all  of  them be  produced  before  it  in custody.   The Judges and the Advocate thereupon filed  writ petitions  before  the High Court at Allahabad  and  a  Full Bench of the High Court admitted their petitions and ordered the  stay  of  the execution of  the  Assembly’s  resolution against  them.   The Assembly then  passed  a  clarificatory resolution  which  modified its earlier stand.   Instead  of being produced in custody, the Judges and the Advocate  were asked   to   appear  before  the  House  and   offer   their explanation. At this stage the President of India made a Reference  under Art.  143(1) of the Constitution in which the whole  dispute as to the constitutional relationship between the High Court and the State Legislative including the question whether  on the facts of the case Keshav Singh 414 his Advocate, and the two Judges, by their respective  acts, were  guilt  of  contempt  of  the  State  Legislature,  was referred,., to the Supreme Court for its opinion and report. At the hearing of the  Reference a preliminary objection  as to  the competency of the Reference was raised on behalf  of the Advocate General of Bihar, on the ground that it did not relate  to  any, of the matters covered by  the  President’s powers  and  duties  under the Constitution.  -It  was  also urged, that even if the Reference was competent, the  Court. should  not answer it as it not obliged "to do so,  and  the answers given by,it would not help) the President in solving any  of the difficulties with -which’ he might be  faced  in discharging  his  duties.  The Court did not’  accept  these contentions   and  proceeded  to  hear   the   parties-which fell,broadly,into two groups-those supporting the Assembly and those supporting -the High Court. On    behalf of,the,Assembly it was-urged that by 194(3)  of the Constitution all the power and immunities of the   House of  Commons of the United Kingdom on,. it.   It. was  I  the sole  judge  ’of  its   privileges and  the  Courts  had  no jurisdiction  to  interfere  with their  exercise.   In  the alternative , it was  contended that Courts in England never interfered virtue of Art. privileges with a committal by the House  of Commons for contempt when the committal was  by  a general  warrant,  I.e., a warrant which did not  state  the facts  constituting the contempt, and, therefore  Courts  in India were also precluded from examining the legality of the general   warrants   of,  the   State   Legislatures.    The proceedings  in  the High Court in the  present  case  were,



therefore, in contempt of the legislature. Those  supporting  the stand taken by the High  Court  urged that  the  Legislature received the powers of the  House  of Commons subject to provisions of the Constitution and to the fundamental  rights,  that the power to  commit  by  general warrant  was  not  one of the privileges  of  the  House  of Commons, that by virtue of Articles 226 and 32, "the citizen -had  the  right  to move the Courts  when  his  fundamental rights were contravened, and that because of the  provisions in  Art. 211, the Legislature was precluded from taking  any action against the Judges. HELD : (Per P. B. Gajendragadkar C. J., K. Subba Rao, K. N. Wanchoo   ’  M.  Hidayatullah,  J.            Shah  and   N. jj.)The terms of Art. 143(1) are very wide and all that they require is that the President  should be satisfied that  the questions  to be referred are’ of such a nature and of  such public imp that it would be expedient to obtain the -Supreme Court  opinion  on them.  The President’s order  making  the present  Reference  showed  that he was  so  satisfied,  and therefore the Reference was competent.  The argument that  a Reference  "under  Art.  143(1) could  only  be  on  matters directly ’related to the President’s powers and duties under the Constitution was misconceived   [431 E-F] 432 E-F]. Earlier  References made by the President under Art.  143(1) showed  no uniform pattern and that was consistent with  the broad and wide words used in Art. 143(1). [433 C-D]. In re : The Delhi Laws Act, 1912, [1951] S.C.R. 747, In  re: The  Kerala Education Bill, 1957, [1959] S.C.R. 995, In  re: Berubari  Union & Exchange of Enclaves, [1960] 3 S.C.R.  250 and In re: Sea Customs Act, [1964] 3S.C.R. 787, referred to. It  is  not  obligatory on the Supreme  Court  to  answer  a Reference  under Art. 143(1)-the word used in  that  Article being  ’may,  in contrast to the word ’shall’ used  in  Art. 143(2).  Refusal to make a report      415 answering the questions referred would however be  justified only  for  sufficient  and satisfactory  reasons  e.g.,  the questions  referred  being  of a  purely  socio-economic  or political  character with no constitutional significance  at all.   The  present  Reference  raised  questions  of  grave constitutional importance and the answers given by the Court could  help  the  President to advise the  Union  and  State Governments to take suitable legislative or executive action 1 It was therefore the duty of; the court to answer it. [434 B-D; 433 G-H]. The  advisory opinion rendered by the Court in  the  present Reference  proceedings  was not  adjudication  properly  so- called, and would bind no parties as such. [446 H; 447 A]. (ii) The - State Legislatures in India. could not by  virtue of  Art.  194(3) claim to be the sole of  their  powers  and privileges to the exclusion of the courts.  Their powers and privileges were to be found in Art. 194(3) alone and nowhere else, and the power to interpret that Article lay under  the scheme  of  the Indian Constitution,  exclusively  with  the Judiciary of this country. (Scheme of the Constitution  dis- cussed). [444 G-H; 446 G-H" It  was not the intention of the Constitution to  perpetuate in India the ’dualism’ that rudely disturbed public life  in England  during  the  16th, 17th and  18th  centuries.   The Constitution-makers  were  aware  of  the  several   unhappy situations  that  arose there as a result  of  the  conflict between the Judicature and the Houses of Parliament, and the provisions  of Arts. 226, 32, 208, 212(1) and 211  (examined by the Court) showed that the intention was’ to avoid such a conflict in this country. [454 A-B; 455 C-E].



Article  211 which provides that the Legislatures could  not discuss  the  conduct of the Judge in the discharge  of  his duties, was mandatory. [457 G-H]. State  of U. P. v. Manbodhan Lal Srivastava,  [1958]  S.C.R. 533 and Montreal Street Railway Company v. Nornwndin, L.  R. [1917] A.C. 170, referred to. (iii)     Although  Art. 194(3) has not been made  expressly subject  to the provisions of the Constitution, it would  be unreasonable   in   construing  it  to  ignore   the   other provisions,  if  for  valid reasons they were  found  to  be relevant  and  applicable.  Therefore wherever  it  appeared that  there  was a conflict between the provisions  of  Art. 194(3) and the provisions relating to fundamental rights, an attempt  had to be made to resolve the said conflict by  the adoption of the rule of harmonious construction as was  done in Sharma Is case. [443 C-E]. Pandit  M. S. M. Sharma v. Shri Sri Krishna Sinha &  Others, [1959] Supp.  1 S.C.R. 806. (iv) In  Sharma’s  case a majority of this  Court  held,  in terms,  that Art. 21 was applicable to the contents of  Art. 194(3)  though  Art. 19(1) was not.  The minority  view  was that Art. 194(3) was subject to all the fundamental  rights. [451 B-C]. The  majority in Sharma’s case cannot be said to  have  held that  Art.  194(3) was independent of  all  the  fundamental rights  for the simple reason that it was held that Art.  21 was  applicable,  although  on the facts  of  the  case  its provisions  were  found not to have been  contravened.   The petitioner  in that case had not raised at all  the  general issue  as to the applicability and relevance to Art.  194(3) of all the fundamental rights in Part 111, and therefore  it was  unnecessary  for the Court to discuss and  decide  that general issue.  His claim was based on the applic- 416 ability  of  two Articles only i.e., Articles 21  and  19(1) (a).   The Court A held that the former was  applicable  and the  latter was not.  This must therefore be taken  to  have been settled in Sharma’s case. [451 C-F]. But  Sharma’s case cannot be said to have settled the  issue whether  Art.  22(2) was applicable to Art. 194(3)  or  not. [Observations of the majority therein as to the  correctness of  the decision in Freddy’s case which was decided  on  the basis  that Art,. 22(2) was applicable, held to be  obiter]. [452 D-E]. Pandit  M. S. M. Sharma v. Shri Sri Krishna Sinha &  Others, [1959]  Supp.  1 S.C.R. 806 and Gunupati Keshavram Reddy  v. Nafisul Hasaan and the State of U.P., A.I.R. 1954 S.C.  636, discussed. (v)  The view taken in Sharma’s case that the laws  defining the  powers  and privileges of the  legislatures  under  the first  part of Art. 194(3) would be subject to Art.  13  and therefore  to  the  fundamental  rights,  did  not   require reconsideration. [453 G]. Anantha  Krishnan v. State of Madras, A.I.R. 1952 Mad.  395, considered. (vi) The  first  part  of Art.  194(3)  empowers  the  State Legislatures  to define by law their own powers,  privileges and  immunities.  The second part of the Article  says  that till  they  define their powers etc. in  the  above  manner, their powers, privileges and immunities will be those of the British House of Commons.  The second part was obviously in- tended to confer for the interim period till laws were  made under  the  first  part,  those  incidental  privileges  and immunities  which  every Legislature must possess  in  order that it may be able to function effectively. [442 C-E].



The powers of the House of Commons conferred by this  clause are those which were still in existence at the  commencement of  the Constitution i.e., 26th January, 1950 and not  those which  had fallen into desuetude or the claim in respect  of which had been given up.  Further, only those powers can  be deemed to have been conferred which were not only claimed by the  House  of Commons but also recognised  by  the  British Courts. [442 F-H]. (vii)     The claim that all the powers of the British House of  Commons  became  vested in the  Indian  Legislatures  by virtue of Art. 194(3) cannot be accepted in its entirety for there are many powers of the House of Commons-such as  right of  access  to  the sovereign, passing  acts  of  attainder, impeachment,  determining  its  own  Constitution  etc.which cannot  be  possibly exercised by the  Indian  Legislatures. [448 D-G]. May’s Parliamentary Practice, 16th Edn. p. 86, referred to. (viii)    Art.  194(3)- did not confer on the  Indian  State Legislatures  the right to commit for contempt by a  general warrant  which  could not be examined for  its  validity  by courts  in habeas corpus proceedings.  The right claimed  by the  House  of  Commons not to  have  its  general  warrants examined in habeas corpus proceedings, was-based on the con- sideration that the House of Commons was in the position  of a  superior  court of record and had the  right  like  other superior courts of record to issue a general warrant for the commitment of persons found guilty of contempt.  There was a convention   in   England  whereby  the   general   warrants committing for contempt issued by a superior court of record were  not examined by other courts.  It was on  that  ground and  not  on  the F ground of  privilege  that  the  general warrants  issued  by the House of Commons  were  treated  as beyond scrutiny by the courts. [482 B-D 496 F].              417 May’s Parliamentary Practice, 16th Edn. relied on. Ashby  v. White, L.J. (1701-05) 714, Earl  of  Shaftesbury’s case,  16  E.R. 792, Bradlaugh v. Gossett, L.R.  XII  Q.B.D. 271, 12 State Tr.122, Sir Francis Burdett, Abbott, 104  E.R. 501, Stockdale v. Hansard, 12 E.R. 1112, Ashby v. White  and Others,  92  E.R.  126, R. v. Paty & others,  92  E.R.  232, Murray’s  case,  95  E.R. 629, Brass Crosby,  95  E.R.  005, Burdett  v. Abbott 3 E . R. 1289, Sheriff of Middlesex,  113 E.R. 119 and Howard v. Gossett, 116 E.R. 139, discussed  and relied on. Bradlaugh  v.  Gossett,  L.R.  XII  Q.B.D.  271,  held   not applicable. Speaker  of  the Legislative Assembly of  Victoria  v.  Hugh Glass, (1869-71) III L.R., P.C. 560, Fielding and Others  v. Thomas,  1896,  R.,  A.C., 600, The Queen  v.  Richards,  92 C.L.R.  157 and Dill v. (1864) 1 Moo.  P.C. (N.S.)  487  (15 E.R. 784), not followed. Observations  of Gwyer C.J., in Central Provinces and  Berar Act  No.   XIV of 1938 [1939] F.C.R. 18 to the  effect  that decisions  in  respect of other Constitutions could  not  be safely  applied  even when the  Provisions  interpreted  are similar, relied on. Observations of Parker J. in re: Hunt’s case [1959] 1 Q.B.D. 678,  referred  to as indicating that even in  regard  to  a commitment  for contempt by a superior court of record,  the court exercising its jurisdiction over a petition filed  for habeas corpus would be competent to consider the legality of the said contempt notwithstanding the fact that the  warrant for commitment was general or unspeaking. The Indian State Legislatures were not at any time in  their history,  either under the Constitution Act. 1935, or  under



the Indian Independence Act, 1947, intended to be courts  of record.  The legal fiction in Art. 194(3) could not transfer the  history  of England to India and confer on  the  Indian State Legislatures the status of superior courts of  record. Thus  the very basis on which the English Courts  agreed  to treat  a general warrant issued by the House of  Commons  on the footing that it was a warrant issued by a superior court of  record,  was absent in their case, and so, it  would  be unreasonable  to contend that the relevant power to claim  a conclusive character for the general warrant which the House of  Common-,,  by agreement, was deemed to  possess,  became vested  in  the Indian Legislatures.  On this  view  of  the matter  the claim made by the Uttar Pradesh Assembly had  to be rejected. [492 A-B]. (ix) Even  if the power to commit by non-examinable  general warrant  were  treated as forming an integral  part  of  the privileges of the House of Commons it would not follow  that the Indian State Legislatures could     exercise that  power by virtue of Art. 194(3). [495-H]. The very  existence  of the powers of the Courts under  Art. 226  and  32 necessarily implies a right in the  citizen  to approach  the  High  Court  or the  Supreme  Court  for  the protection  of his fundamental rights. (The present  dispute was   really between a citizen and the Legislature  and  not one between the High Court and the Legislature). [494 A-B]. If  a  citizen  moved this court  and  complained  that  his fundamental  right under Art. 21 [held to be  applicable  to Art. 194(3) in Sharma’s case] or any other applicable right, bad  been contravened, it would plainly be the duty of  this Court  to  examine the merits of the  said  contention.   It would  be no answer in such a case to say that  the  warrant issued  against  the  citizen was a general  warrant  and  a general  warrant must stop all further judicial enquiry  and scrutiny.  The impact of the 418 fundamental right conferred on Indian citizen by Art. 32  on the  construction  of  the latter part of  Art.  194(3)  was decisively against the view that a power or privilege  could be  claimed by the House though it may be inconsistent  with Art. 21.  In this connection it was relevant to recall  that the  rules  for regulating the procedure of the  House  were subject  to  the provision of the  Constitution  under  Art. 208(1). [493 D-E]. Observations  of  Simonds  J.,  in  In  re  :  Parliamentary Privileges Act, 1770, [1958] A.C. 331 and Resolution of  the House  of Lords, C.J. 1702-04, pp. 555, 560, (Cited  in  May 16th Edn. p. 47), referred to. It  would  be  strange if the House  which  was  incompetent because  of Art. 21 1 to discuss the conduct of a  Judge  in the discharge of his duties, should have the power to summon him  in custody for alleged contempt committed in  discharge of  his  duties.  If the claim of the House were  upheld  it would  mean  that the House could issue  a  general  warrant against  a Judge and no judicial,scrutiny,could be  held  in respect  of the validity of such a warrant.  This would  Put the  basic  concept  of  judicial  independence  into  grave jeopardy. [493 E-H]. It ’was also’ doubtful whether the power to issue a  general up-spcaking warrant was consistent with s. 554(2)(b) and  s. 555 of the Code of Criminal Procedure [496 E-F]. Section  30  of  the  Advocates Act  1961,  confers  on  all Advocates,  the statutory right to practice in  all  courts, including  the Supreme Court, before any Tribunal or  person legally  authorised to take evidence, and before  any  other authority or person before whom such Advocate is by or under



any,law  for the time being in force entitled  to  practice. Section  14  of the Bar Councils Act  recognises  a  similar right.   Just as the rights of the Judicature to  deal  with matters  before  them under Art. 226 or Art.  32  cannot  be subjected  to the powers and privileges of the  House  under Art.  194(3),  so  the rights of the  citizen  to  move  the Judicature  and  the right of the Advocates to  assist  that process  must remain uncontrolled by Art. 194(3).   That  is one integrated scheme for protecting the fundamental  rights and  for  sustaining  the  rule  of  law  in  this  country. Therefore  the  right  to commit  by  a  conclusive  general warrant  which the State Assembly claimed to be an  integral part  of its powers or privileges was inconsistent with  the material  provisions  of the Constitution and could  not  be deemed  to have been included under the latter part of  Art. 194(3). [495 E-H]. The  power  to commit by general warrant  was  moreover  not essential  for  the  effective functioning  of  a  House  of Legislature.   The  American Congress had  been  functioning effectively without such power. [497 B-E]. In India, there are 14 State Legislatures in addition to the Houses  of  Parliament.  If the power claimed  by  the  U.P. Assembly  were conceded it is not difficult to imagine  that its  exercise  may lead to anomalous situations  as  when  a member  of  one Legislature is committed for contempt  by  a general warrant issued by another Legislature on account -of a speech made by him in his own Legislature. [497 E-F]. (x)  It was open to Keshav Singh in his petition under  Art. 226 to implead the, House on the ground that his  commitment was  based  on. the order passed by the House, and  in  that sense  the House was responsible for, and had  control  over his commitment. [496 B-C]. The  King  v. The Earl of Crewe Ex parte Sekgome.  [1910]  2 K.B.D.  576  and  The King v. Secretary of  State  for  Home Affairs Ex parte O’brien, [1923] 2 K.B.D. 361, referred to. 419 (xi) Although  in  England parties who stand  committed  for contempt by the house of Commons are not admitted to bail by courts,  the  position in India is different.  If  Art.  226 confers jurisdiction on the court to deal with the  validity of  the order of commitment even though the  commitment  has been  ordered  by the House, it follows that the  court  has jurisdiction  to make an interim order in such  proceedings. [498 F-H] State  of  Orissa v. Madan Gopal Rungla and  others,  [1952] S.C.R.  28 and Maxwell on Interpretation of  Statutes,  11th Edn. p. 350, relied on. Lala Jairam Dav & others and King Emperor, 72 I.A. 120, held inapplicable. (xii)     On  the  facts  of the case  the  High  Court  was competent  to entertain the petition of Keshav Singh and  to grant him bail pending, disposal of his petition.  There was no  contempt of the U.P. Assembly committed by Keshav  Singh or his Advocate in moving the application under Art. 226, or by  the  High Court in entertaining the  said  petition  and granting  bail.   It was not competent for  the  Legislative Assembly to direct the production of the two Hon’ble  Judges and  the Advocate before it in custody or to call for  their explanation  for  their conduct.  It was competent  for  the Full Bench of the Allahabad High Court to entertain and deal with the petitions -of the said two Hon’ble Judges and  ,the Advocate, and to pass interim orders restraining the Speaker of  the  U.P.  Assembly and other respondents  to  the  said petitions  from implementing the aforesaid direction of  the Assembly.   A Judge of a High Court who entertains or  deals



with  a  petition  challenging any order or  decision  of  a Legislature  imposing any penalty on the petitioner (who  is not  a  member of the Legislature) or  issuing  any  process against  the  petitioner  for  its  contempt  (the   alleged contempt having been committed outside the four-walls of the House),  or  for  the infringement  of  its  privileges  and immunities,  or who passes any order on such petition,  does not  commit  any contempt of the said Legislature,  and  the said  Legislature  is  not  competent  to  take  proceedings against such a Judge in the exercise and enforcement of  its powers, privileges and immunities. [502 A; 503 C]. (xiii)    It  is  necessary  to remember  that  the  status, dignity   and  importance  of  the  two  institutions,   the Legislature  and the Judicature, are derived primarily  from the status, dignity and importance of the respective  causes that  are  assigned  to their charge  by  the  Constitution. These  two bodies as well as the executive which is  another important  constituent of a democratic State, must  function not   in  antinomy  nor  in  a  spirit  of  hostility,   but rationally,  harmoniously and in a spirit  of  understanding within their respective spheres, for such harmonious working of  the  ;three constituents of the democratic  State  alone will help the peaceful development, growth and stabilization of the democratic way of life in this Country. [447 D-E]. (xiv)     The  power to punish for contempt large as it  is, must  always  be  exercised  cautiously,  wisely  and   with circumspection.   Frequent  or indiscriminate  use  of  this power  in anger or irritation would not help to sustain  the dignity of the court, but may sometimes affect it adversely. Wise Judges  never  forget  that the  best  way  to  sustain the dignity and stat     of  their  office  is  to   deserve respect from the public at large by them     quality      of their judgments, the fearlessness, fairness and objectivity of their  approach, and by the restraint, dignity  and  decorum which they     observe   in  their  judicial  conduct.    We venture  to  think that what is true of  the  Judicature  is equally true of the Legislature. [501 F-G].. 420 Observations of Lord Atkin in Andre Paul v. Attorney General of Trinidad, A.I.R.1936 P.C. 141, referred to. Per  Sarkar  J.  (i) It is undoubtedly  for  the  Courts  to interpret  the Constitution and therefore Art.  194(3).   It follows  that when a question arises in this Country  as  to whether   the  House  of  Commons  possessed  a   particular privilege  at  the commencement of  the  Constitution,  that question must be settled, and settled only by the courts  of law.   There is no scope of the dreaded ’dualism’  appearing here,  that  is, courts entering into a controversy  with  a House  of a Legislature as to what its privileges are.  [509 A-B]. (ii) The  words  appearing in Art. 194(3) are  "the  powers, privileges and immunities of a House...... shall be those of the  House  of  Commons."  One  cannot  imagine  more  plain language than this.  That language can only have one meaning and  that  is that it was intended to confer  on  the  State legislatures the powers, privileges and immunities which the House of Commons in England had.  There is no occasion  here for  astuteness  in  denying words their  plain  meaning  by professing  allegiance to a supposed theory of  division  of powers. [511 A-B]. Bradlaugh  v.  Gossett,  (1884)  12  Q.B.D.271,  Burdett  v. Abbott. (1811) 14 East 1, In re : Delhi Laws, [1951]  S.C.R. 747.   Pt.  M.S.M. Sharma v. Shri Sri Krishna Sinha.  [1959] Supp.  1 S.C.R. 806, Speaker of the Legislative Assembly  of Victoria  v.  Glass (1871) L.R. 3. P.C. App.  560  Queen  v.



Richards,  92 C.L.R. 157, Queen v. Richards, 92  C.L.R.  171 and Fielding v. Thomas, [1896] A.C. 660, referred to. (iii)     The power to commit by a general warrant with  the consequent  deprivation of the jurisdiction of  -the  courts was,  one of the privileges of the House of  Commons.   That privilege  was possessed by the U.P. Assembly by  virtue  of Art. 194(3) of the Constitution. [524 C-D]. There  is  no authority to show that the  House  of  Commons possessed the powers to commit by a general warrant  because it  was a superior court of record.  Neither the history  of the  House, nor the judgments in English cases support  that contention.   The courts only treated the House as  entitled to  the same respect as a superior court.  They did not  say that the House was a superior court. [513 B-C, 522 B]. May’s  Parliamentary Practice, 16th Edn.  Potter’s  Outlines of   Legal   History,  (1958  Edn.)  Anson’s  Law   of   the Constitution. 6th Edn.  Vol. 1, referred to. Bradlaugh  v.  Gossett,  (1884) 12  Q.B.D.  271  Burdett  v. Abbott,  5  Dow 165, Sheriff of Middlesex, (1840) 11 A  &  E 272,  Stockdale v. Hansard, (1839) 9 AD & El and  Howard  v. Gossett, (1874) 10 Q.B. 359. relied on. It is fallacious to say that the right to commit by  general warrant possessed by the House of Commons springs from  some rule  of  comity of courts, or of presumptive  evidence,  or from  an agreement between courts of law and the  House,  or lastly,  from  some concessions made by the  former  to  the latter. [522 E-F]. All  privileges  of the House of Commons are based  on  law. That  law  is known as Lex Parliamenti.  That law  like  any other law is a law of the land which courts are entitled  to administer. [522 F-G]. It is not for us to start new ideas about privileges of  the House of Commons, ideas which had not ever been imagined  in England.   Researches into the period when these  privileges were taking shape can afford no answer to their contents and nature in 1950. [523 G-H; 524 B-C]. 421 Writers  of  undoubted authority as well as  certain  recent decisions  of the Judicial Committee have treated the  power to  commit  by a conclusive general warrant as a  matter  of privilege of the House and not as a right possessed by it as a superior court. [515 G-H]. May’s   Parliamentary   Practice,  16th   Edn.    Cases   on Constitutional  Law by Keir and Lawson, Halsbury’s Law’s  of England,  Vol.  28, 467, Dicey’s  Constitutional  Law,  10th Edn., referred to. Speaker  of the Legislative Assembly of Victoria  v.  Glass, Fielding v. Thomas, and Sheriff of Middlesex, relied on. (iv) The  decisions  of the Judicial Committee  may  not  be binding  on  Indian  courts but they  have  high  persuasive value,  unless shown to be wrong.  The question  is  whether the  House of Commons had a certain privilege.  If  judicial notice of the privilege has to be taken, then under s. 57 of the Evidence Act, a reference to the authorised law  reports of England would be legitimate, and if the existence of  the privilege has to be decided as a matter of foreign law, then again  under s. 38 of that Act a reference to these  reports would be justified.  And since they contain decisions of one of the highest courts in England, we are not entitled to say that  what they call a privilege of the House of Commons  of their  country is not a privilege, unless some equally  high authority  taking the contrary view is forthcoming. [517  D- F]. (v) It cannot be said that the privilege in question can  be exercised by   the Indian State Legislatures only subject to



the fundamental rights of     a  citizen guaranteed  by  the Constitution.   In Sharma’s case this court laid  down  that the privileges of the House of Commons which were  conferred on  the  House of a State Legislature by  Art.  194(3)  take precedence  over  fundamental  rights.   This  decision  was correct  and did not require reconsideration. [524 E-F;  525 B-C, F]. In  re : Delhi Laws Act, 1950, [1951] S.C.R.  747,  referred to. It  was  not  held  in Sharma’s  case  that  Art.  21  takes precedence over the privileges in Art. 194(3).  Das C.J.  no doubt  said that there was no violation of Art. 21  in  that case  because  the deprivation of liberty was  according  to procedure  established by law.  But that was only an  alter- native  reason for he could have held-as he did in the  case of Art. 19(1)(a)-that Art. 21 being a general provision  and Art.  194(3)  being special, the former must  yield  to  the latter. [531 E-F; 532 B-E]. Another  reason for saying that Das C.J. did not  hold  that Art  21  took precedence over the privilege to commit  by  a general  warrant is the fact that he held that Reddy’s  case was  wrongly decided.  That case had held that Art.  22  had precedence over the privilege of committal.  If Art. 22  did not have precedence, as Das C.J. must have held since he did not accept the correctness of Reddy’s case, no more could he have  held  that  Art. 21 would  have  precedence  over  the privilege to commit for contempt. [532 E-F]. (vi) The  majority  in Sharma’s case no doubt  said  without discussion  that the law under Art. 194(3) would be  subject to all fundamental rights, but that is so only because  Art. 13 says so. [528 C-D]. Article 13 makes a law bad if it conflicts with  fundamental rights. it cannot be said that since Art. 13 might make laws made  under  cl.  (3)  of  Art.  194  void,  the  privileges conferred by the second part must also be void.  Article  13 has  no  application to the provisions of  the  Constitution itself.    It  governs  only  the  laws  made  by  a   State Legislature which Art. 194(3) is not.  The fact that in  cl. (1) of Art. 194 the words 422 ’subject to the provisions of the Constitution’ occur, while they  are omitted from cl. (3) is a strong  indication  that the latter clause was not intended to be so subject. [528 E- H). (vii)     When  there  is  a conflict  between  a  privilege conferred on a House by the second part of Art. 194(3) and a fundamental  right  that conflict has to be resolved  as  in Sharma’s case by harmonising the two provisions.  Harmonious construction means that both the provisions should be  given maximum effect without one of them wiping out the other.  In the  instant case the conflict was between the privilege  of the  House  to  commit a person for  contempt  without  that committal being liable to be examined by a court of law, and the personal liberty of a citizen guaranteed by Art. 21  and the  right to move the courts in enforcement of  that  right under Art. 32 or Art. 226.  If the right to move the  courts in enforcement of the fundamental right is given precedence, the  privilege  which  provides that if a  House  commits  a person  by  a general warrant that committal  would  not  be reviewed  by courts of law, will lose all its effect and  it would be as if the privilege had not been granted to a House by the second part of Art. 194(3).  This was not  harmonious construction.   That-being so, it would follow that  when  a House  commits  a person for contempt by a  general  warrant that  person would have no right to approach the courts  nor



can the courts sit in judgment over such order of committal. [533 G-H, 534 A-C]. Observation of Lord Ellenborough C. J. in Burdett v. Abbott, referred to for possible exceptions to the rule. [534 C-D]. (viii)    The  Lucknow  Bench was not apprised of  the  fact that  the  detention  of Keshav Singh was  under  a  general warrant, and till so apprised it had full competence to deal with  the petition under Art. 226.  It was not necessary  in the  present reference to decide the question whether  in  a habeas corpus petition where the commitment is for  contempt the  law permits release on bail, because the Reference  was not  meant to seek an answer to that question.  No  contempt was committed by the Hon’ble Judges or B. Solomon or  Keshav Singh  for the respective parts taken by them in  connection with  the  petition as it did not appear that any  of  those persons knew that the commitment was under a general warrant.  Since  they were not guilty, it was not  competent for the Assembly    to  order their production  in  custody. Strictly speaking, the question    as  to bringing  them  in custody before the         House did not arise on the  facts of  the case as the Assembly had modified its resolution  in that  regard.   The  Assembly  was  competent  to  ask   for explanation  from the two Judges and B. Solomon.  As it  had power to cormorant for contempt it necessarily had power  to ascertain facts concerning the contempt.  The Full Bench was competent to entertain the petition of the two Judges and B. Solomon Advocate if on the facts of the case they could  not be  said to be guilty.  It would follow that the Full  Bench had  the  power to pass the interim orders it did.   On  the facts of the case, a Judge of a High Court who entertains or deals with a petition challenging any order or decision of a Legislature  imposing  any  penalty  on  the  petitioner  or issuing any process against the petitioner for its  contempt or for infringement of its privileges and immunities or  who passes  I  any  order on such a  petition  does  not  commit contempt  of the said Legislature, and the said  Legislature is not competent to take proceedings against such a Judge in the  exercise and enforcement of its powers, privileges  and immunities. [534 D; 537 D]. (ix) During  the  fourteen years that the  Constitution  has been  in operation, the Legislatures have not done  anything to  justify the view that they do not deserve to be  trusted with power.  Though Art. 211 is 423 not  enforceable  the Legislatures have shown  an  admirable spirit  of  restraint and have not even once  in  all  these years  discussed  the conduct of Judges.  We must  not  lose faith  in our people, must not think that  the  Legislatures Would misuse the powers given to them by the Constitution or that safety lay in judicial correction.  Such correction may do  more  harm  than good.  In a modern State  it  is  often necessary  for the good of the country that parallel  powers shoul exist in different authorities.  It is not  inevitable that such powers will clash. [541 C-E].

JUDGMENT: Advisory JURISDICTION: Special Reference No. 1 of 1964. Special  Reference  under Art. 143 of  the  Constitution  of India. C.K.  Dhaphtary, Attorney-General, H.N.  Sanyal,  Solicitor- General,  S.  V. Gupte, Addl.  Solicitor-General, D.  R.  L. lyengar and R. H. Dhebar, for Union of India. M.C.  Setalvad, G.S. Pathak, Jagadish Swaroop, S.N.  Andley,



P.L. Vohra, Rameshwar Nath, Mahinder Ndrain, Harish K.  Puri and  Suresh Vohra, for Hon’ble the Chief Justice  and  other Judges of the Allahabad High Court. G.   S. Pathak, Jagdish Swaroop, Bishun Singh, Gopal Behari, J.S.  Trivedi,  S.N. Pawnikar, S.N. Andley, P.L.  Vohra  and Rameshwar Nath, for Hon’ble Mr. Justice N.U. Beg. N.C. Chatterjee, Asif Ansari, M.K. Ramamurthi, and R.K. Garg for Hon’ble Mr. Justice G.D. Sehgal. H.   M.  Seervai,  Advocate-General,41,  Mahashtra,  T.  )Z. Andhyarujina and S.P. Varma, for U.P. Vidhan Sabha. N.A.  Palkhivala, J.B. Dadachanji, O.C. Mathur and  Ravinder Narain,  for  Hon’ble the Chief  Justice,  Maharashtra  High Court. J.   M.    Thakore,   Advocate-General,  Gujarat,   J.    B. Dadachanji, O.   C.  Mathur  and Revinder Jain, for  Hon’ble  the  Chief Justice, Gujarat High Court. D.   Narsaraju, N. R Ramdar, O.P. Malhotra, B. Parthasarthy, J.B.  Dadachanji,  O.C.  Mathur, and  Ravinder  Narain,  for Hon’ble the Chief Justice, Orissa High Court. Murli  Manohar Vyas, S. Murti, B.N. Kirpal, B.L. Khanna,  K. K.  Jain,  Chitale and M. S. Gupta, for  Hon’ble  the  Chief Justice, Rajasthan High Court. Murli Manohar, S. Murti, B. N. Kirpal, B. L. Khanna,, K.  K. jain,  chitle  and  M.   S. Gupta,  for  Hon’ble  the  Chief Justice, Madhya Pradesh High Court. D.P. Singh, S. Balkrishnan, Shanti Bhatnagar and Lai  Narain Singh, for Hon’ble the Chief Justice, Patna High Court. Sup.C.1.165-2 424 A.C.  Mitra  and D.N. Mukherjee, for  Hon’ble  Speker,  West Bengal Legislative Assembly. S.   S.  Sanyal,  S. K. Acharyya and D.  N.  Mukheriee,  for Hon’ble Chairman, W.B.L.C. H.M.  Seervai,  Advocate-General, Maharashtra,  T.R.  Anand- yarujina,  R.A.  Gagrat and V.J. Merchant, for  Hon’ble  the Speaker/Chairman Maharashtra L.A. & L.C. G.N.  loshi, Atiqur Rehman and K.L. Hathi, for  Hon’ble  the Speaker, Gujarat L.A. Atiqur  Rehman  and  K.L. Hathi, for  Hon’ble  the  Speaker, Himachal Pradesh Vidhan Sabha. B.C.  Barua,  Advocate-General, Assam and  Naunit  Lal,  for Hon’ble the Speaker, Assam Legislative Assembly. D.M.  Sen,  Advocate-General, Nagaland and Naunit  Lal,  for Nagaland Legislative Assembly. B.P.  Jha,  for  Hon’ble  the  Chairman,  Bihar  Legislative Council and Hon’ble the Speaker Bihar Legislative Assembly. K.L.  Misra,  Advocate-General, Uttar Pradesh,  B.C.  Misra, D.D.  Chaudhury and C.P. Lal, for the  Advocate-General  for the State of U.P. M.   Adhikari,  Advocate-General,  Madhya Pradesh  and  I.N. Shroff,   for  the Advocate-General for the State of  Madhya Pradesh. N.   Krishnaswamy   Reddy,  Advocate-General,   Madras,   V. Ramaswamy  and  A.V. Rangam, for  the  Advocate-General  for State of Madras. B.V.   Subrahamanyam,  Advocate-General,  State  of   Andhra Pradesh,  M.  Jaganadha Rao and T.V.R.  Tatachari,  for  the Advocate-General for the State of Andhra Pradesh. B.   Sen, S.C. Bose and P.K. Bose, for the  Advocate-General for the State of West Bengal. G.C.  Kasliwal, Advocate-General, State of Rajasthan, M.  V. Goswami, for the State of Rajasthan. S.P. Varma, for the Advocate for  the State of Bihar. J.P. Goyal, for M/s.  Keshav Singh and B. Soloman.



M.   K..  Nambyar  and  N. N. Keswani, for  Bar  Council  of India. M.   K.  Nambyar,  Chaudhury Hyder Hussain,  B.  K.  Dhawan, Bishun  Singh,  Shiv Sastri and S. S. Shukla, for  Oudh  Bar Association. 425 R.   Jethmalni, P.K. Kapila and A. K. Nag, for Western India Advocates Association (Intervener). S.   N. Kakar, C. S. Saran, G. P. Gupta, and S. C.  Agarwal, for Allahabad High Court Bar Association (Intervener). M.K. Nambyar and V.A. Seyid Muhammad, for Bar Association of India (Intervener). R.   V.  S. Mani, Shaukat Husain, E. C.  Agarwala,  Shahzadi Mohiuddin and O. C. Agarwal, for Applicants-Interveners: (a) Lok  Raksha  Samaj (Sewak), (b) All  India  Civil  Liberties Council (c)  Sapru Law Society. M.   K. Rama murthi, R. K. Garg, D. P. Singh and S. C. Agar- wal for Applicant-Intervener Delhi Union of Journalists. K.   Rajendra  Chaudhury and K. R. Chaudhury, for  Applicant Intervener, Bihar Working Journalists Union. Chinta  Subba  Rao, for Applicant-Intervener,  Institute  of Public Opinion. GAJENDRAGADKAR C.J. delivered the Opinion on behalf of SUBBA RAO, WANCHOO, HIDAYATULLAH, SHAH AND RAJGOPALA AYYANGAR  JJ. and himself.  SARKAR J. delivered a separate Opinion. Gajendragadkar C.J. This is Special Reference No. 1 of  1964 by which the President has formulated five questions for the opinion   of  this  Court  under  Article  143(1)   of   the Constitution.  The Article authorises the President to refer to  this Court questions of law or fact which appear to  him to have arisen or are likely to arise and which are of  such a nature and of such public importance that it is  expedient to  obtain  the  opinion of the  Supreme  Court  upon  them. Article  143(1)  provides  that  when  such  questions   are referred  to  this Court by the President,  the  Court  may, after such hearing as it thinks fit, report to the President its  opinion  thereon.  In his Order of  Reference  made  on March  26, 1964, the President has expressed his  conclusion that the questions of law set out in the Order of  Reference are  of such a nature and of such public importance that  it is expedient that the opinion of the Supreme Court of  India should be obtained thereon. It  appears  that  on March 14, 1964,  the  Speaker  of  the Legislative  Assembly of Uttar Pradesh administered, in  the name  of  and under the orders of the  Legislative  Assembly (hereinafter  referred  to as "the House"), a  reprimand  to Keshav  Singh,  who is a resident of Gorakhpur,  for  having committed  contempt  of  the  House  and  also  for   having committed  a  breach of the privileges  of  Narsingh  Narain Pandey, a member of the House.  The contempt and 426 the  breach  of privileges in question arose because,  of  a pamphlet which was printed and published and which bore  the signature of Keshav Singh along with the signatures of other persons.   In pursuance of the decision taken by  the  House later  on  the same, day, the Speaker directed  that  Keshav Singh be committed to prison for committing another contempt of  the  House  by  his conduct in the  House  when  he  was summoned to receive the aforesaid reprimand and for  writing a disrespectful fetter to the Speaker of the House  earlier. According  to  this  order, a warrant was  issued  over  the signature of the Speaker of the House, Mr. Verma,  directing that Keshav Singh be detained in the District Jail, Lucknow, for a Period of seven days, and in execution of the  warrant



Keshav Singh was detained in the Jail. On  March 19, 1964, Mr. B. Solomon, an  Advocate  practising before  the  Lucknow  Bench of  the  Allahabad  High  Court, presented  a petition to the High Court on behalf of  Keshav Singh  under section 491 of the Code of Criminal  Procedure, 1898, as well as under Article 226 of the Constitution.   To this petition were implemented the speaker of the House, the House,   the  Chief  Minister  of  Uttar  Pradesh  and   the Superintendent  of the District Jail, Lucknow, where  Keshav Singh was serving the sentence of improvement imposed on him by  the  House,  as respondents 1 to  4  respectively.   The petition  thus presented on behalf of Keshav  Singh  alleged that  his detention in jail was illegal on several  grounds. According to the petition, Keshav Singh had been ordered  to be  imprisoned after the reprimand had been administered  to him,  and  that made the order of imprisonment  illegal  and without authority.  ’Me petition further alleged that Keshav Singh  had not been given an opportunity to  defend  himself and  that  his detention was mala fide and was  against  the principles  of natural justice.  It was also his  case  that respondents  1  to  3 had no authority to send  him  to  the District Jail, Lucknow, and that made his detention in  jail illegal. After  the said petition was filed before the Lucknow  Bench of the Allahabad High Court, the learned Advocates for  both the parties appeared before Beg and Sahgal JJ. at 2 P.m. and agreed  that the petition should be taken up At 3  P.M.  the same  day.  Mr. Solomon represented keshav Singh and Mr.  K. N.  Kapur, Assistant Government Advocate, appeared  for  all the  respondents.   Accordingly, the petition was  taken  up before  the  Court at 3 P.m. On this occasion,  Mr.  Solomon appeared for the petitioner but Mr. Kapur did not appear  in Court.   The Court then passed an Order that  the  applicant should be released on bail 427 on furnishing two sureties in a sum of Rs. 1,000 each and  a personal bond in the like amount to the satisfaction of  the District  Magistrate, Lucknow.  The Deputy Registrar of  the Court was asked to take necessary action in connection  with the Order.  The Court also directed that the applicant shall remain  present  in Court at every hearing of  the  case  in future.   Thus,  the petition was admitted  and  notice  was ordered to be issued to the respondents with the  additional direction  that the case should be set down for  hearing  as early as possible.  This happened on March .19, at 3 P.m. On  March 20, 1964, Mr. Shri Rama, the Government  Advocate, wrote  to Mr. Nigam, Secretary to Government  U.P.  Judicial Department, Lucknow, giving him information about the  Order passed by the High Court on Keshav Singh’s application.   In this communication, Mr. Shri Rama has stated that after  the matter was mentioned to the Court at 2 P.m. it was adjourned to 3 P.m. at the request of the parties; soon thereafter Mr. Kapur  contacted  Mr.  Nigam on the  phone,  but  while  the conversation was going on, the Court took up the matter at 3 P.m.  and passed the Order directing the release  of  Keshav Singh  on  terms  and conditions  which  have  already  been mentioned.  Mr. Shri Rama sent to Mr. Nigam three copies  of the  application  made by Keshav Singh  and  suggested  that arrangement  should  be  made  for  making  an   appropriate affidavit of the persons concerned.  He also told Mr.  Nigam that the application was likely to be listed for hearing  at a very early date. Instead of complying with the request made by the Government Advocate  and  instructing  him  to file  a  return  in  the application made by Keshav Sin , the House proceeded to take



action against the two learned Judes why passed the order on Keshav Singh’s application, as well as Keshav Singh and  his Advocate, on March 21, 1964.  It appears that two Members of the House brought to the notice of the Speaker of the  House on  the  20th March what had happened before  the  Court  in regard  to  the application made by  Keshav  Singh.   Taking notice  of  the  order passed by the High  Court  on  Keshav Singh’s  petition, the House proceeded to pass a  resolution on  March 21, 1964.  This resolution said that  the.   House Was  of  the denote view at M/s.  G. D. Sahgal, N.  U.  Beg. Keshav  Singh and P. Solomon had committed contempt  of  the House and therefore, it was ordered that Keshav Singh Should immediately  be taken into custody and kept confined in  the District Jail, Lucknow, for the remaining term of his impri- sonment and M/s.  N. U. Beg, D. Sahgal and B. Solomon should 428 be  brought  in custody before the  House.   The  resolution further added that after Keshav Singh completed the term  of his imprisonment, he should be brought before the House  for having  again committed contempt of the House on  March  19, 1964. The  two learned Judges heard about this resolution  on  the radio  on the evening of March 21, and read about it in  the morning  edition of the Northern India Patrika published  on March  22, 1964.  That is why they rushed to  the  Allahabad High  Court  with separate petitions under Art. 226  of  the Constitution. petitions alleged that the impugned Resolution passed by the House was wholly unconstitutional and violated the  provisions of Art. 211 of the Constitution.   According to the petitions, the application made by Keshav Singh under Art.  226  was competent and in making  an  order  releasing Keshav Singh, the Judges were exercising their  jurisdiction and  authority as Judges of the High Court under  Art.  226. Their contention was that the resolution passed by the House amounted  to  contempt  of Court, and since  it  was  wholly without  jurisdiction,  it  should be set aside  and  by  an interim order its implementation should be stayed.  To these petitions  were  impleaded  as respondents  Mr.  Verma,  the Speaker,  Vidhan Sabha, Lucknow, the State of Uttar  Pradesh and  the Marshal, Vidhan Sabha.  These petitions were  filed on March 23, 1964. Apprehending  that  these developments had given rise  to  a very  serious  problem, a Full Bench of the  Allahabad  High Court  consisting of 28 Judges took up on the same  day  the petitions  presented before them by their two colleagues  at Lucknow, directed that the said petitions should be admitted and  ordered  the issue of notices against  the  respondents restraining   the  Speaker  from  issuing  the  warrant   in pursuance  of  the direction of the House given  to  him  on March  21, 1964, and from securing execution of the  warrant if  already issued, and restraining the Government  of  U.P. and the Marshal of the House from executing the warrant. Meanwhile,  on  March  25, 1964, Mr.  Solomon,  the  learned Advocate  of Keshav Singh, presented a similar  petition  to the  High  Court under Art. 226.  He prayed for  a  writ  of mandamus on the same lines as the petitions filed by the two learned  Judges, and he urged that suitable order should  be passed against the House, because it had committed  contempt of  Court.  To his petition Mr. Solomon had impleaded  seven respondents; they were: the Speaker of the House, Mr. Verma: the  Legislative  Assembly, U.P.; the Marshal  of  the  U.P. Legislative Assembly; 429 Mr.  Saran  and  Mr.  Ahmad,  Members  of  the   Legislative Assembly,  U.P., who brought to the notice of the House  the



orders  passed by the two learned Judges of the High  Court; and the State of Uttar Pradesh. This  application  again  was heard by a Full  Bench  of  28 Judges  of the Allahabad High Court on March 25,  and  after admitting   the  petition,  an  interim  order  was   passed prohibiting   the  implementation  of  the  resolution   the validity of which was challenged by the petitioner.  At  the preliminary hearing of this petition, notice had been served on the Senior Standing Counsel who was present in Court.  He stated  to  the Court that he had no  instructions  at  that stage  to  oppose the application.  That is  why  the  Court issued notice of the application and passed what it  thought would be appropriate orders. On   the  same  day,  the  House  passed   a   clarificatory resolution.  This resolution began with the statement that a misgiving  was  being expressed with regard  to  the  motion passed  by  the  House  in that it  could  be  construed  as depriving  the  persons  concerned  of  an  opportunity   of explanation, and it added that it was never the intention of the  House  that  a charge against a High  Court  Judge  for committing  breach  of privilege or contempt of  the  House, should  be  disposed  of in a  manner  different  from  that governing  breach of privilege or contempt committed by  any other  person.   The  House, therefore,  resolved  that  the question  of  contempt  may  be  decided  after  giving   an opportunity  of  explanation  to the persons  named  in  the original resolution of March 20, 1964 according to rules. As a result of this resolution, the warrants issued for  the arrest of the two learned Judges and Mr. Solomon were  with- drawn,  with the result that the two learned Judges and  Mr. Solomon were placed under an obligation to appear before the House  and  offer  their explanations as to  why  the  House should  not proceed against them for their alleged  contempt of the House. When  the incidents which happened in such quick  succession from March 19 to March 25, 1964, had reached this stage, the President decided to exercise his power to make a  reference to this Court under Art. 143(1) of the Constitution on March 26, 1964.  The Order of Reference shows that it appeared  to the President that the incidents in question had given  rise to  a  serious  conflict between a High Court  and  a  State Legislature   which  involved  important   and   complicated questions  of law regarding the powers and  jurisdiction  of the  High  Court  and its Judges in relation  to  the  State Legislature and its officers and regarding the 430 powers, privileges and immunities of the, State  Legislature and its members in relation to the High Court and its Judges in  the discharge of their duties.  The President  was  also satisfied that the questions of law set out in his Order  of Reference  were  of  such  a  nature  and  of  such   public importance  that it was expedient to obtain the  opinion  of this  Court  on them.  That is the genesis  of  the  present reference. The questions referred to this Court under this Reference read as follows :-               (1)   Whether, on the facts and  circumstances               of the case, it was competent for the  Lucknow               Bench  of  the  High Court  of  Uttar  Pradesh               consisting of the Hon’ble, Mr. Justice N.  U.,               Beg  and the Hon’ble Mr Justice G. D.  Sahgal,               to entertain and deal with the petition of Mr.               Keshav  Singh challenging the legality of  the               sentence of imprisonment  imposed upon him  by               the  Legislative  Assembly of  Uttar   Predesh



             for  its contempt and for infringement of  its               privileges  and to pass orders  releasing  Mr.               Keshav  Singh on bail pending the disposal  of               his said petition;               (2)   Whether, on the facts and  circumstances               of the case, Mr. Keshav Singh, by causing  the               petition to be presented on his -behalf to the               High Court of Uttar Pradesh as aforesaid,  Mr.               B.  Solomon, Advocate, by presenting the  said               petition  and the said two Hon’ble’ Judges  by               entertaining  and dealing with the said  peti-               tion  and ordering the release of Shri  Keshav               Singh  on  bail pending disposal of  the  said               petition committed contempt of the Legislative               Assembly of Uttar Pradesh;               (3)   Whether, on the facts and  circumstances               of   the  case,  it  was  competent  for   the               Legislative  Assembly  of  Uttar  Pradesh   to               direct the production of the said two  Hon’ble               Judges and Mr. B. Solomon, Advocate, before it               in  custody or to call for  their  explanation               for its contempt;               (4)   Whether, on the facts and  circumstances               of  the case, it was competent  for  the  Full               Bench  of the High Court of Uttar  Pradesh  to               entertain  and deal with the petitions of  the               said  two Hon’ble Judges and Mr.  B.  Solomon,               Advocate,   and   to   pass   interim   orders               restraining  the  Speker  of  the  Legislative               Assembly               431               of Uttar Pradesh and other respondents to  the               said petitions from implementing the aforesaid               direction  of the said  Legislative  Assembly;               and               (5)   Whether  a  Judge of a  High  Court  who               entertains   or   deals   with   a    petition               challenging   any  order  or  decision  of   a               Legislature   imposing  any  penalty  on   the               petitioner or issuing any process against  the               petitioner    for   its   contempt   or    for               infringement of its privileges and  immunities               or  who  passes  any order  on  such  petition               commits  contempt of the said Legislature  and               whether  the said Legislature is competent  to               take  proceedings against such a Judge in  the               exercise   and  enforcement  of  its   powers,               privileges and immunities. At  the  hearing of this Reference, Mr. Varma has  raised  a preliminary  objection on behalf of the Advocate General  of Bihar.   He contends that the present Reference  is  invalid under  Art.  143(1) because the questions referred  to  this Court  are not related to any of the entries in Lists 1  and III  and as such, they cannot be said to be  concerned  with any  of  the powers, duties or functions  conferred  on  the President by the relevant articles of the Constitution.  The argument appears to be that it is only in respect of matters failing  within  the  powers, functions and  duties  of  the President  that  it  would  be competent  to  him  to  frame questions for the advisory opinion of this Court under  Art. 143(1).    In  our  opinion,  this  contention   is   wholly misconceived.   The words of Art. 143(1) are wide enough  to empower  the  President  to forward to this  Court  for  its advisory  opinion  any  question of law or  fact  which  has arisen  or which is likely to arise, provided it appears  to



the President that such a question is of such a nature or of such  public importance that it is expedient to  obtain  the opinion of this Court upon it.  It is quite true that  under Art. 143(1) even if questions are referred to this Court for its  advisory opinion, this Court is not bound to give  such advisory  opinion in every case.  Art. 143(1) provides  that after the questions formulated by the President are received by  this  Court, it may, after such hearing as  it  thinking fit, report to ’the, President its opinion thereon.  The use of  the  word  "may" in contrast with the use  of  the  word "shall" in the provision prescribed by Art. 143 (2)  clearly brings  opt  the fact that in a given case  this  Court  may respectfully  refuse, to express its advisory opinion if  it is  satisfied that it should not express its opinion  having regard  to the nature of the questions forwarded to  it  and having  regard  to other relevant facts  and  circumstances. Art. 143 (2) 432 deals with cases in which the President may refer a  dispute to this Court notwithstanding the prohibition prescribed  by the  proviso  to  Art. 131, and it adds  that  when  such  a reference is made, the Court shall, after such hearing as it thinks fit, report to the President its opinion thereon.  In other  words,  whereas in the case of reference  made  under Art.  143(2)  it is the constitutional  obligation  of  this Court  to  make  a report on that  reference  embodying  its advisory  opinion,  in a reference made  under  Art.  143(1) there  is no such obligation.  In dealing with  this  latter class  of  reference, it is open to this Court  to  consider whether it should make a report to the President giving  its advisory opinion on the questions under reference. This  position,  however,  has no bearing  on  the  question raised  by Mr. Varma.  The validity of the objection  raised by  Mr.  Varma must be judged in the light of the  words  of Art.  143(1)  themselves and these words are  of  such  wide amplitude  that  it  would be impossible to  accede  to  the argument that the narrow test suggested by Mr. Varma has  to be  applied  in determining the validity  of  the  reference itself.   What  Art. 143(1) requires is that  the  President should  be  satisfied  that a question of law  or  fact  has arisen  or is likely to arise.  He should also be  satisfied that such a question is of such a nature and of such  public importance  that  it is expedient to obtain the  opinion  of this  Court  on it.  Prima facie, the  satisfaction  of  the President on both these counts would justify the  reference, and  it  is  only where this Court feels that  it  would  be inadvisable  for  it to express its advisory opinion  on  it that it may respectfully refuse to express any opinion.  But there  can be no doubt that in the present case it would  be impossible  to suggest that questions of fact and law  which have  been referred to this Court, have not arisen and  they are not of considerable public importance.  Therefore, we do not  think  there  is  any  substance  in  the   preliminary objection raised by Mr. Varma. The references made to this Court since the Constitution was adopted in 1950 illustrate how’ it would be inappropriate to apply the narrow test suggested by Mr. Varma in  determining the  competence  or validity of the  reference.   The  first Special  Reference No. 1 of 1951 was made to this  Court  to obtain  the advisory opinion of this Court on  the  question about  the  validity and constitutionality of  the  material provisions  of the Delhi Laws Act, 1912, the  Ajmer  Merwara (Extension of Laws) Act, 1947, and the Part C States  (Laws) Act, 1951(1).  The second Special (1)  In re: the Delhi Laws Act, 1912, [1951] S.C.R. 747.



433 Reference(1)  was made in 1958.  This had reference  to  the validity of certain provisions of the Kerala Education Bill, 1957,  which  had  been passed  by  the  Kerala  Legislative Assembly,  but  had been reserved by the  Governor  for  the consideration   of   the  President.   The   third   Special Reference(1)  was made in 1959, and it invited the  advisory opinion  of  this  Court in regard to the  validity  of  the material  provisions  of  an  agreement  between  the  Prime Ministers  of India and Pakistan which was described as  the Indo-Pakistan  Agreement.  The fourth  Special  Reference(2) was  made  in  1962.   By  this  reference,  the   President forwarded  for the advisory opinion of this Court  questions in  regard to the validity of the relevant provisions  of  a draft Bill which was intended to be moved in the  Parliament with  a view to amend certain provisions of the Sea  Customs Act,  1878 and the Central Excises and Salt Act,  1944.   It would thus be seen that the questions so far referred by the President for the advisory opinion of this Court under  Art. 143 (1) do not disclose a uniform pattern and that is  quite clearly  consistent  with the broad and wide words  used  in Art. 143(1). It  is hardly necessary to emphasise that the  questions  of law  which have been forwarded to this Court on the  present occasion  are of very great constitutional importance.   The incidents  which have given rise to this Reference  posed  a very  difficult problem and unless further  developments  in pursuance of the orders passed by the two august bodies were arrested,  they  were likely to lead to a very  serious  and difficult  situation.   That is why the President  took  the view  that a case for reference for the advisory opinion  of this   Court  had  been  established  and   he   accordingly formulated, five questions and has forwarded the same to  us for  our  advisory  opinion.  Under Art. 143(1)  it  may  be competent  to  the President to formulate for  the  advisory opinion of this Court questions of fact and law relating  to the validity of the impinged provisions of existing laws; it may  be open to him to formulate questions in regard to  the validity of provisions proposed to be included in the  Bills which  would  come before the Legislatures; it may  also  be open  to him to formulate for the advisory opinion  of  this Court  questions  of  constitutional  importance  like   the present; and it may be that the President may, on  receiving our  answers  consider whether the Union Government  or  the State  Government should be requested to take any,  suitable or appropriate action, either legislative or executive in (1)  In  re the Kerala Education Bill, 1957,  [1959]  S.C.R. 995. (2)  In re: the Berubari Union, [1960] 3 S.C.R. 250, (3)  In re: the Bill to Amend Sea Customs Act etc. [1964]  3 S.C.R. 787. 434 accordance  with the opinion expressed by this Court.   That is  why  we feel no difficulty in holding that  the  present Reference is competent. As we  have already indicated, when a Reference is  received by this Court -under Art. 143(1), this Court may, in a given case, for sufficient and satisfactory reasons,  respectfully refuse  to  make  a report containing  its  answers  on  the questions  framed  by the President; such  a  situation  may perhaps  arise if the questions formulated for the  advisory opinion of this Court are purely socioeconomic or  political questions  which have no relation whatever with any  of  the provisions  of  the  Constitution,  or  have  otherwise   no constitutional  significance.  It is with a view  to  confer



jurisdiction  on this Court to decline to  answer  questions for   such   strong  and  compelling   reasons    that   the Constitution,  or have  used the word ’may’ in Art. 143  (1) as  distinct  from  Art. 143 (2) "are the  word  -  used  is ’shall’.   In  the present case, we are clearly  of  opinion that  the questions formulated for our advisory opinion  are questions    of   grave   constitutional   importance    and significance  and  it is our duty to make a  report  to  the President embodying our answers to the questions  formulated by him. That takes us to the merits of the controversy  disclosed by the  questions formulated by the President for our  advisory opinion.  This Reference has been elaborately argued  before us.   The  learned Attorney-General opened  the  proceedings before  us  and  stated the relevant facts  leading  to  the Reference, and indicated broadly the rival contentions which the  House and the High Court sought to raise before  us  by the  statements  of  the case filed on  their  behalf.   Mr. Seers, the learned Advocate-General of Maharashtra, appeared for the House and presented before the Court a very learned, impressive  and  exhaustive argument.  He, was  followed  by several  learned  counsel who broadly  supported  the  stand taken  by  the  House.  Mr. Setalvad who  appeared  for  the Judges  of the Allahabad High Court, addressed to us a  very able argument With his characteristic brevity and  lucidity; and he was, in turn, followed by several learned counsel who appeared  to support the stand taken by the  Judges.   Durng the course of the debate several propositions were canvassed before  us and a very large area of constitutional  law  was covered.   We  ,ought,  therefore to make it  clear  at  the outset  that  in formulating- our answers to  the  questions framed by the President in the present Reference, we propose to  deal  with only such points as, in our opinion,  have  a direct  and  material bearing on the problems posed  by  the said questions.  It is hardly necessary to emphasise that in dealing With constitutional matters, the Court 435 should be slow to deal with questions which do not  strictly arise.   This  precaution  is all  the  more’  necessary  in dealing  with  a  reference made to this  Court  under  Art. 143(1). Let  us then begin by stating broadly the  main  contentions urged on behalf of the House and on behalf of the Judges and the  Advocate.  Mr. Seervai began his arguments by  pointing out  the  fact  that in dealing with  reference  under  Art. 143(1), the Court is not exercising what may be described as its  judicial  function.  There are no  parties  before  the Court in such a reference and there is no his.  The  opinion expressed  by  the  Court on the  reference  is,  therefore, advisory; and so, he contends that though ha appears  before us  in  the present reference on behalf’ of  the  House,  he wants to make it clear that the House does not submit to the jurisdiction  of this Court in any manner in respect of  the area  of  controversy covered by the  questions.   In  other words,  he stated that his appearance before us was  without prejudice to his main contention that the question about the existence   and  extent  of  the  powers,   privileges   and immunities  of the House, as well as the question about  the exercise  of  the powers and privileges  were  entirely  and exclusively  within  the  jurisdiction  of  the  House;  and whatever this Court may say will not preclude the House from deciding  for  itself the points referred to us  under  this Reference.   This  stand was based on the  ground  that  the opinion "pressed by us is advisory and not in the nature  of a judicial adjudication between the parties before the Court



as such The  same stand was taken by Mr. Seervai in regard  to  Art. 194(3)  of  the Constitution.  Art. 194(3)  deals  with  the question about the powers, privileges and immunities of  the Legislatures and of the Members and Committees thereof.   We will  have  occasion  to deal with the  provisions  of  this Article  later on.  For the present, it is enough  to  state that  according to Mr. Seervai, it is the privilege  of  the House  to construe the relevant provisions of’  Art.  194(3) and  determine  for itself what its powers,  privileges  and immunities are, and that being so, the opinion expressed  by this  Court on the questions relating to the  existence  and extent  of its powers and privileges will not  preclude  the House  from,  determining  the  same  questions  for  itself unfettered by the views of this Court. Having, thus made his position clear in regard to the  claim which  the House proposes to make in respect of  its  powers and  Privileges, Mr. Seervai contended that even in  England this dualism between the two rival jurisdictions claimed  by the Judicature and the Parliament has always existed and  it still continue& 436 to  be unresolved.  On some occasions, the  dispute  between the  Judicature and the House of Commons has assumed a  very bitter  form  and it has disclosed a  complete  antinomy  or contradiction in the attitudes adopted by the two respective august bodies.  The courts claimed that they had a right  to decide the question about the existence and extent of powers and  privileges in question and the Parliament  consistently refused to recognise the jurisdiction of the courts in  that behalf  during  the  17th, 18th  and  19th  centuries.   The Parliament  conceded  that  it  could  not  create  any  new privileges,  but it insisted on treating itself as the  sole and  exclusive judge of the existing privileges and was  not prepared  to part with its authority to determine what  they were,  or to deal with their breach, and how to  punish  the delinquent citizens.  On the other hand, the courts insisted on  examining  the  validity of the  orders  passed  by  the Parliament  on  the ground of breach of privilege,  and  the dualism thus disclosed persisted for many years. Mr.  Seervai  ’argues that the House for  which  he  appears adheres  to  the stand which the House of  Commons  took  in similar  controversies which led to a conflict  between  the Judicature  and  itself on several occasions  in  the  past. Consistently with this attitude, be denies the  jurisdiction of  the Allahabad High Court to deal with the points  raised by  Keshav  Singh  in his  writ  petition.   Logically,  his argument is that the presentation of the petition by  Keshav Singh  and his Advocate amounted to contempt of  the  House, and  when  the learned Judges entertained the  petition  and passed  an interim order on it, they committed  contempt  of the  House.   That is the view taken by the House,  and  the propriety,  correctness,  or validity of this  view  is  not examinable by the Judicature in this country. Alternatively,  Mr. Seervai put his argument on  a  slightly different basis.  He conceded that for over a century  past, in  England,  this  controversy can be taken  to  have  been settled   to  a  large  extent  by  agreement  between   the Judicature  and the House of Commons.  It now appears to  be recognised  by the House of Commons that the  existence  and extent of privilege can be examined by the courts.  It  also appears to be recognised by the House of Commons that if  in exercise  of its power to punish a person for its  contempt, it issues a speaking warrant, it would be open to the  court to  consider  whether  the reasons set out  in  the  warrant



amount  to  contempt or not.  To this  limited  extent,  the jurisdiction   of   the   Judicature   is   recognised   and consistently,  for-the  last  century,  whenever  it  became necessary  to  justify  the  orders passed  by  it  for  its contempt, a return has always been 437 filed in courts.  Mr. Seervai, however, emphasises the  fact that  even  as a result of this large measure  of  agreement between  the  Judicature  and the House of  Commons  on  the question  about  the  nature and  extent  of  privilege,  it appears  to  be taken. as settled that if an  unspeaking  or general warrant is issued by the House of Commons to  punish a  person  who is guilty of its contempt, the  courts  would invariably treat the said general warrant as conclusive  and would  not examine the validity of the order passed  by  the House.   In the present case, according to Mr. Seervai,  the resolution  which has been passed by the House  against  the two learned Judges as well as against Mr. Solomon is in  the nature  of  a  general resolution and  though  the  warrants issued  against the Judges have been withdrawn, it is  clear that  the decision of the House and the warrants which  were initially  ordered  to be issued in pursuance  of  the  said resolution,  were  in the nature of general  resolution  and general warrants, and so, it would not be open to this Court to  enquire  the reasons for which the  said  warrants  were issued.  The resolution in question and the warrants  issued pursuant  to it are conclusive and must be treated as  such. The  argument, therefore, is that in answering the  question formulated  under  the  present Reference,  we  should  give effect  to this position which appears to have been  evolved by some sort of implied agreement between the Judicature and the  House of Commons.  This agreement shows that the  right to determine questions of contempt and to decide adequacy of punishment  for the said contempt belong exclusively to  the House,  and if in pursuance of the said exclusive  power,  a general  warrant  is issued, the House can never  be  called upon  to  explain the genesis or the reasons  for  the  said warrant.  This itself is an integral part of the  privileges and  powers of the House, and this integral part,  according to  the  House, has been brought into India as a  result  of Art.  194(3)  of  the Constitution.   In  other  words,  the argument  is  that even if this Court  has  jurisdiction  to determine  the  scope and effect of Art. 194(3),  it  should bear in mind the fact that this particular Power to issue an unspeaking general warrant and to insist upon the Judicature treating  the said warrant as conclusive, is a part  of  the privileges  to which the latter part of Art. 194(3)  refers. It  is  on this broad ground that Mr. Seervai wanted  us  to frame  our answers to the questions which are  the  subject- matter of the Reference. On  the other hand, Mr. Setalvad, for the  Judges,  contends that  there is no scope for importing into our  Constitution the dualism which existed in England between the  Judicature and the House of Commons.  He contends that there can be  no doubt 438 that the question of construing Art. 194(3) falls within the exclusive jurisdiction of this Court and the High Courts and that the construction which this Court would place upon  the relevant words used in the latter part of Art. 194(3)  would finally  determine  the scope, extent and character  of  the privileges  in  question.  According to Mr.  Setalvad,  Art. 194(3) cannot be read in isolation, but must be read in  its context  and in the light of other important  constitutional provisions,  such  as  Arts.  32, 211  and  226.   When  the



material  portion  of  Art. 194(3) is thus  read,  it  would appear  that there is no scope for introducing any  antinomy or conflict or dualism between the powers of the High  Court and  those  of the House in relation to matters  which  have given rise to the present ’questions.  He further urges that it  would be idle for the House to adopt an  attitude  which the  House of Commons in England appears to have adopted  in the  17th,  18th  and 19th centuries  when  conflicts  arose between the said House and the Judicature.  For more than  a century  no attempt has been made by the House  of  Commons, says  Mr.  Setalvad,  to contend that if a  citizen  who  is punished by the House for its alleged contempt committed  by him  would  be guilty of another contempt if  he  moved  the Court in its habeas corpus jurisdiction, nor has Any attempt been  made  during this period by the House  of  Commons  to proceed  against  a lawyer Who presents an  application  for habeas   corpus   or  against  Judas  who   entertain   such applications; and so, the argument is that we ought ’to deal with  the  present  dispute  on  the  basis  of  the  common agreement which has, by convention, been evolved between the two august and powerful institutions, the Judicature and the Legislature. Mr. Setalvad conceded that there appears to be some  conven- tion recognised by the English courts by which they treat  a general  or  unspeaking  warrant  issued  by  the  House  as usually-conclusive; but this aspect of the matter, according to him, is the result of convention or comity and cannot  be treated  as an integral part of the, privilege of the  House itself.   The  basis  for -evolving this con  I  mention  is rooted in the history of England, because the Parliament was the  highest Court of Justice at one time and it is  because of  this history that the House of Commons came also  to  be regarded as a superior Court of Record.  Such ’at assumption cannot  be  made  in respect of the  House  in  the  present proceedings.   Besides, in dealing with the  question  about the effect of a general warrant, the Court cannot ignore the significance  of Arts. 32, 211 and 226 of the  Constitution. Basing  himself  broadly on these  arguments,  Mr.  Setalvad contends  that the Constitution has resolved the problem  of dualism in our country by 439 conferring   on   the  High  Courts  and  this   Court   the jurisdiction to deal with claims made by the citizens  whose fundamental rights have been invaded, and that means that in this  country, if an application for habeas corpus is  made, it  would be competent to. this Court or the High Courts  to examine  the validity of the order passed by  any  authority including the Legislature, and that must necessarily involve the consequence that an unspeaking warrant cannot claim  the privilege  of conclusiveness.  That, in brief, in its  broad features, is the approach adopted by Mr. Setalvad before us. It will thus be seen that the main controversy disclosed  by the  five questions formulated by the  President  ultimately lies  within a very narrow compass.  Is the House  the  sole and exclusive judge of the issue as to whether its  contempt has  been  committed where the alleged  contempt  has  taken place  outside the four walls of’ the House ? Is  the  House the sole and exclusive judge of the punishment which  should be  imposed on the party whom it has found to be  guilty  of its  contempt ? And, if in enforcement of its  decision  the House  issues a general or unspeaking warrant, is  the  High Court  entitled  to  entertain  a  habeas  corpus   petition challenging  the  validity of the detention  of  the  person sentenced by the House ? The, argument urged by Mr.  Seervai on  behalf  of the House is that in the case  of  a  general



warrant, the High Court has no jurisdiction to go behind the warrant;  and in the present case, since it has  entertained the  petition and passed an order releasing Keshav Singh  on bail without examining the warrant, and even before a return was  filed  by the respondents, it has acted  illegally  and without  jurisdiction,  and so, the learned Judges,  of  the High  Court,  the Counsel, and the party are all  guilty  of contempt of the House.  Mr. Seervai urges that in any  case, in  habeas  corpus proceedings of this character,  the  High Court had no jurisdiction to grant interim bail. It is not seriously disputed by Mr. Setalvad that the  House has  the  power  to inquire whether its  contempt  has  been committed by anyone even outside its four-walls and has  the power  to  impose  punishment for  such  contempt;  but  his argument is that having regard to the material provisions of our Constitution, it would not be open to the House to  make a  claim  that  its general warrant  should  be  treated  as conclusive.  In every case where a party has been  Sentenced by the House for contempt and detained, it would be open  to him to move the High Court for appropriate relief under Art. 226  and  the High Court would be entitled  to  examine  the merits of his pleas, even though the warrant may be  general P.C.I./65-3 440 or  unspeaking.  According to Mr. Setalvad, since  the  High Court  has  jurisdiction to entertain a  Writ  Petition  for habeas corpus under Art. 226, it has also the power to  pass an order of interim bail.  Thus, the dispute really  centers round  the  jurisdiction of the High Court  to  entertain  a habeas  corpus  petition even in cases where  a  general  or unspeaking  warrant has been issued by the  House  directing the detention of the party in contempt. Though  the  ultimate solution of the problem posed  by  the questions  before  us  would thus he within  a  very  narrow compass, it is necessary to deal with some wider aspects  of the  problem  which incidentally arise and the  decision  of which  will  assist  us  in rendering  our  answers  to  the questions framed in the present Reference.  The whole of the problem  thus presented before us has to be decided  in  the light  of the provisions contained in Art. 194 (3 )  of  the Constitution, and in that sense, the interpretation of  Art. 194(3) is really the crux of the matter.  At this stage,  it is necessary to read Article 194 :               "194.  (1) Subject to the provisions  of  this               Constitution  and  to the rules  and  standing               orders   regulating  the  procedure   of   the               Legislature, there shall be freedom of  speech               in the Legislature of every State.               (2)   No member of the Legislature of a  State               shall  be  liable to any  proceedings  in  any               court in respect of anything said or any  vote               given  by  him  in  the  Legislature  or   any               committee  thereof, and no person shall be  so               liable  in  respect of the publication  by  or               under  the  authority  of a House  of  such  a               Legislature  of any report, paper,  votes,  or               proceedings.               (3)   In    other   respects,   the    powers,               privileges  and immunities of a House  of  the               Legislature of a State, and of the members and               the committees of a House of such  Legislature               shall  be  such as may from time  to  time  be               defined by the Legislature by law, and,  until               so  defined,  shall be those of the  House  of               Commons  of Parliament of the United  Kingdom,



             and  of  its members and  committees,  at  the               commencement of this Constitution.               (4)   The  provisions of clauses (1), (2)  and               (3) shall apply in relation to persons who  by               virtue of this Constitution have the right  to               speak  in, and otherwise to take part  in  the               proceedings of, a House of the Legislature  of               a State or any committee thereof as they apply               in relation to members of that Legislature."’ 441 It will be noticed that the first three material clauses  of Art. 194 deal with three different topics.  Clause (1) makes it  clear that the freedom of speech in the  Legislature  of every   State  which  it  prescribes,  is  subject  to   the provisions  of  the  Constitution,  and  to  the  rules  and standing   orders,   regulating   the   procedure   of   the Legislature.    While  interpreting  this  clause,   it   is necessary   to   emphasis  that  the   provisions   of   the Constitution  subject  to which freedom of speech  has  been conferred on the legislators, are not the general provisions of  the Constitution but only such of them as relate to  the regulation  of the procedure of the Legislature.  The  rules and  standing  orders  may regulate  the  procedure  of  the Legislature  and some of the provisions of the  Constitution may  also purport to regulate it; these are,  for  instance, Articles 208 and 211.  The adjectival clause "regulating the procedure  of  the Legislature" governs both  the  preceding clauses relating to "the provisions of the Constitution" and "the  rules  and  standing orders."  Therefore,  clause  (1) confers on the legislators specifically the right of freedom of speech subject to the limitation prescribed by its  first part.   It  would  thus appear that by  making  this  clause subject   only   to   the  specified   provisions   of   the Constitution,  the  Constitution-makers wanted  to  make  it clear  that  they  thought it necessary  to  confer  on  the legislators  freedom of speech separately and, in  a  sense, independently of Art. 19(1)(a).  If all that the legislators were  entitled  to  claim  was the  freedom  of  speech  and expression  enshrined in Art. 19(1)(a), it would  have  been unnecessary  to  confer the same right specifically  in  the manner  adopted  by Art. 194(1); and so, it would  be  legi- timate  to  conclude that Art. 19(1)(a) is not  one  of  the provisions of the Constitution which controls the first part of clause (1) of Art. 194. Having  conferred  freedom  of speech  on  the  legislators, clause (2)     emphasises the fact that the said freedom  is intended to be absolute and unfettered.  Similar freedom  is guaranteed  to the legislators in respect of the votes  they may  give in the Legislature or any committee  thereof.   In other  words,  even if a legislator exercises his  right  of freedom of speech in violation, say, of Art. 21 1, he  would not  be liable for any action in any court.   Similarly,  of the  legislator  by his speech or vote, is alleged  to  have violated  any of the fundamental rights guaranteed  by  Part III  of  the Constitution in the  Legislative  Assembly,  he would  not be answerable for the said contravention  in  any court.   If the impugned speech amounts to libel or  becomes actionable  or indictable under any other provision  of  the law,  immunity has been conferred on him from any action  in any court by this clause.  He 442 may  be  answerable to the House for such a speech  and  the Speaker  may take appropriate action against him in  respect of  it;  but that is another matter.  It is plain  that  the



Constitution-makers  attached  so  much  importance  to  the necessity   of  absolute  freedom  in  debates  within   the legislative  chambers  that  they thought  it  necessary  to confer complete immunity on the legislators from any  action in any court in respect of their speeches in the legislative chambers in the wide terms prescribed by clause (2).   Thus, clause  (1)  confers freedom of speech  on  the  legislators within the legislative chamber and clause (2) makes it plain that the freedom is literally absolute and unfettered. That takes us to clause (3).  The first part of this  clause empowers the Legislatures of States to make laws prescribing their  powers,  privileges and immunities; the  latter  part provides that until such laws are made, the Legislatures  in question  shall  enjoy  the  same  powers,  privileges   and immunities  which  the  House  of  Commons  enjoyed  at  the commencement  of the Constitution.  The  Constitution-makers must have thought that the Legislatures would take some time to  make  laws in respect of their  powers,  privileges  and immunities.   During the interval, it was clearly  necessary to  confer  on  them the necessary  powers,  privileges  and immunities.   There  can be little doubt  that  the  powers, privileges and immunities which are contemplated by cl. (3), are incidental powers, privileges and immunities which every Legislature  must  possess in order that it may be  able  to function  effectively, and that explains the purpose of  the latter part of clause (3). This clause requires that the powers, privileges and immuni- ties  which are claimed by the House must be shown  to  have subsisted at the commencement of the Constitution, i.e.,  on January  26,  1950.  It is well-known that out  of  a  large number  of privileges and powers which the House of  Commons claimed   during  the  days  of  its  bitter  struggle   for recognition, some were given up in course of time, and  some virtually  faded  out by desuetude; and so,  in  every  case where a power is claimed, it is necessary to enquire whether it was an existing power at the relevant time.  It must also appear that the said power was not only claimed by the House of  Commons, but was recognised by the English  Courts.   It would  obviously  be idle to contend that  if  a  particular power which is claimed by the House was claimed by the House of Commons but was not recognised by the English courts,  it would  still be upheld under the latter part of  clause  (3) only on the ground that it was in fact claimed by the  House of Commons.  In other words, the inquiry which is prescribed by this clause is : is 443 the  power in question shown or proved to have subsisted  in the House of Commons at the relevant time ? Clause  (4) extends the provisions prescribed by  the  three preceding clauses to certain persons therein described. It  will thus be seen that all the four clauses of Art.  194 are not in terms made subject to the provisions contained in Part In.  In fact, clause (2) is couched in such wide  terms that in exercising the rights conferred on them by cl.  (1), if  the legislators by their speeches contravene any of  the fundamental rights guaranteed by Part III, they would not be liable  for any action in any court.  Nevertheless,  if  for other valid considerations, it appears that the contents  of cl.  (3)  may  not  exclude  the  applicability  of  certain relevant  provisions  of the Constitution, it would  not  be reasonable to suggest that those provisions must be  ignored just  because the said clause does not open with  the  words "subject  to the other provisions of the  Constitution."  In dealing  with the effect of the provisions contained in  cl. (3)  of  Art.  194,  wherever it appears  that  there  is  a



conflict  between  the said provisions  and  the  provisions pertaining to fundamental rights, an attempt win have to  be made  to  resolve the said conflict by the adoption  of  the rule  of harmonious construction.  What would be the  result of the adoption of such a rule we need not stop to consider, at this stage.  We will refer to it later when we deal  with the decision of this Court in Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha & Others(1). The  implications  of  the  first  part  of  clause  (3)may, however, be examined at this stage.  The question is, if the Legislature  of  a State makes a law  which  prescribes  its powers, privileges and immunities, would this law be subject to Art. 13 or not ? It may be recalled that Art. 13 provides that  laws  inconsistent  with  or  in  derogation  of   the fundamental  rights  would be void.  Clause (1) of  Art.  13 refers  in  that  connection to the laws  in  force  in  the territory  of India immediately before the  commencement  of the  Constitution,  and clause (2) refers to laws  that  the State shall make in future.  Prima facie, if the legislature of a State were to make a law in pursuance of the  authority conferred  on it by clause (3), it would be law  within  the meaning of Art. 13 and clause (2) of Art. 13 would render it void  if it contravenes or abridges the  fundamental  rights guaranteed,by  Part M. As we will presently point out,  that is  the  effect  of the decision of  this  Court  in  Pandit Sharma’s(1)  case.  In other words, it must now be taken  as settled (1)  [1959] Supp. 1 S.C.R. 806. 444 that  if a law is made under the purported exercise  of  the power  conferred  by the first part of clause (3),  it  will have  to  satisfy  the test prescribed  by  the  fundamental rights  guaranteed by the Constitution.  If that be  so,  it becomes   at   once   material  to   enquire   whether   the Constitution-makers had really intended that the limitations prescribed by the fundamental rights subject to which  alone a law can be made by the Legislature of a State  prescribing its powers, privileges and immunities, should be treated  as irrelevant in construing the latter part of the said clause. The same point may conveniently be put in another form.   If it appears that any of the powers, privileges and immunities claimed  by the House are inconsistent with the  fundamental rights  guaranteed by the Constitution, how is the  conflict going  to  be  resolved.   Was  it  the  intention  of   the Constitution to place the powers, privileges and  immunities specified  in  the latter part of cl. (3) on a  much  higher pedestal  than the law which the Legislature of a State  may make  in  that  behalf on a future date ?  As  a  matter  of construction of clause (3), the fact that the first part  of the said clause refers to future laws which would be subject to   fundamental   rights,  may   assume   significance   in interpreting the latter part of clause (3).  That, in brief, is  the position of the first three material  provisions  of Art. 194. The next question which faces us arises from the preliminary contention  raised  by Mr. Seervai that  by  his  appearance before  us on behalf of the House, the House should  not  be taken  to  have conceded to the Court  the  jurisdiction  to construe  Art. 194(3) so as to bind it.  As we have  already indicated,  his stand is that in the matter  of  privileges, the House is the sole and exclusive judge at all stages.  It may  be that technically, the advisory opinion  rendered  by this Court on the Reference made to it by the President  may not  amount to judicial adjudication properly so-called  and since  there are no parties as such before the Court in  the



Reference, nobody would be bound by our answers.  But  apart from  this technical aspect of the matter, it  is  necessary that  we should determine the basic question as  to  whether even  in the matter of privileges, the Constitution  confers on  the House sole and exclusive jurisdiction as claimed  by Mr. Seervai.  It is common ground that the powers have to be found in Art. 194(3).  That provision is the sole foundation of the powers, and no power which is not included in it  can be  claimed by the House; and so, at the very ’threshold  of our discussion, we must decide this question. In  dealing with this question, it is necessary to  bear  in mind one fundamental feature of a federal constitution.   In England, 445 Parliament  is  sovereign; and in the words  of  Dicey,  the three   distinguishing   features  of   the   principle   of Parliamentary Sovereignty are that Parliament has the  right to  make or unmake any law whatever; that no person or  body is  recognised  by the law of England is having a  right  to override  or  set aside the legislation of  Parliament;  and that the right or power of Parliament extends to every  part of the Queen’s dominions(1).  On the other hand, the  essen- tial  characteristic of federalism is ’the  distribution  of limited executive, legislative and judicial authority  among bodies  which are co-ordinate with and independent  of  each others. The supremacy of the constitution is fundamental  to the existence of a federal State in order to prevent  either the  legislature of the federal unit or those of the  member States from destroying or impairing that delicate balance of power which satisfies the particular requirements of  States which are desirous of union, but not prepared to merge their individuality  in  a  unity.  This  supremacy  of  the  con- stitution  is protected by the authority of  an  independent judicial  body  to  act as the interpreter of  a  scheme  of distribution of powers.  Nor is any, change possible in  the constitution  by  the ordinary process of federal  or  State legislation(2).   Thus  the dominant characteristic  of  the British   Constitution  cannot  be  claimed  by  a   federal constitution like ours. Our Legislatures have undoubtedly plenary powers, but  these powers  are controlled by the basic concepts of the  written Constitution   itself  and  can  be  exercised  within   the legislative  fields  allotted to their jurisdiction  by  the three  Lists  under  the Seventh Schedule;  but  beyond  the Lists,  the Legislatures cannot travel.  They can  no  doubt exercise  their plenary legislative authority and  discharge their  legislative  functions by virtue of the  powers  con- ferred   on   them  by  the  relevant  provisions   of   the Constitution; but the basis of the power is the Constitution itself.    Besides,   the  legislative  supremacy   of   our Legislatures including the Parliament is normally controlled by the provisions contained in Part III of the Constitution. If  the  Legislatures  step beyond  the  legislative  fields assigned to them, or acting within their respective  fields, they trespass on the fundamental rights of the citizens in a manner  not justified by the relevant articles dealing  with the  said fundamental rights, their legislative actions  are liable to be struck down by courts in India.  Therefore,  it is  necessary to remember that though our Legislatures  have plenary  powers, they function within the limits  prescribed by the material and relevant provisions of the Constitution. (1)  Dicey, The Law of the Constitution 10th ed. pp.  xxxiv, xxxv. (2)  Ibid p. Ixxvii. 446



In a democratic country governed by a written  Constitution, it  is the Constitution which is supreme and sovereign.   It is no doubt true that the Constitution itself can be amended by the Parliament, but that is possible because Art. 368  of the  Constitution itself makes a provision in  that  behalf, and  the amendment of the Constitution can be  validly  made only  by  following  the procedure prescribed  by  the  said article.  That shows that even when the Parliament  purports to  amend  the  Constitution,  it has  to  comply  with  the relevant  mandate of the Constitution itself.   Legislators, Ministers,  and  Judges all take oath of allegiance  to  the Constitution,  for it is by the relevant provisions  of  the Constitution   that   they  derive   their   authority   and jurisdiction and it is to the provisions of the Constitution that they owe allegiance.  Therefore, there can be no  doubt that the sovereignty which can be claimed by the  Parliament in England, cannot be claimed by any Legislature in India in the literal absolute sense. There  is another aspect of this matter which must  also  be mentioned;  whether  or  not there  is  distinct  and  rigid separation of powers under the Indian Constitution, there is no  doubt  that  the  Constitution  has  entrusted  to   the Judicature  in  this  country the  task  of  construing  the provisions  of  the  Constitution and  of  safeguarding  the fundamental  rights  of  the citizens.  When  a  statute  is challenged  on  the  ground that it has  been  passed  by  a Legislature    without   authority,   or    has    otherwise unconstitutionally  trespassed on fundamental rights, it  is for  the courts to determine the dispute and decide  whether the law passed by the legislature is valid or not.  Just  as the  legislatures  are conferred legislative  authority  and their   functions  are  normally  confined  to   legislative functions, and the functions and authority of the  executive lie  -within  the  domain of  executive  authority,  so  the jurisdiction and authority of the Judicature in this country lie  within the domain of adjudication.  If the validity  of any  law  is  challenged  before the  courts,  it  is  never suggested   that  the  material  question  as   to   whether legislative  authority  has  been  exceeded  or  fundamental rights  have  been  contravened,  can  be  decided  by   the legislatures themselves.  Adjudication of such a dispute  is entrusted  solely and exclusively to the Judicature of  this country;  and so, we feel no difficulty in holding that  the decision   about  the  construction  of  Art.  194(3)   must ultimately  rest  exclusively with  the,Judicature  of  this country.   That  is  why we  must  over-rule  Mr.  Seervai’s argument that the question of determining the nature,  scope and effect of the powers of the House cannot be said to  lie exclusively  within  the jurisdiction of this  Court.   This conclusion,  however, would not impair the validity  of  Mr. Seervai’s contention that the advisory opinion 447 rendered  by us in the present Reference proceedings is  not adjudication properly so-called and would bind no parties as such. In coming to the conclusion that the content of Art.  194(3) must  ultimately  be  determined by courts and  not  by  the legislatures,  we  are  not unmindful of  the  grandeur  and majesty  of  the  task  which  has  been  assigned  to   the Legislatures under the Constitution.  Speaking broadly,  all the legislative chambers in our country today are playing  a significant  role in the pursuit of the ideal of  a  Welfare State  which has been placed by the Constitution before  our country, and that naturally gives the legislative chambers a high place in the making of history today.  The High  Courts



also  have  to  play  an equally  significant  role  in  the development of the rule of law and there can be little doubt that the successful working of the rule of law is the  basic foundation   of  the  democratic  way  of  life.   In   this connection  it  is necessary to remember  that  the  status, dignity and importance of these two respective institutions, the  Legislatures and the Judicature, are derived  primarily from  ’the status dignity and importance of  the  respective causes   that   are  assigned  to  their   charge   by   the Constitution.   These  two  august bodies  as  well  as  the Executive  which  is  another  important  constituent  of  a democratic  State, must function not in antinovel nor  in  a spirit  of hostility, but rationally, harmoniously and in  a spirit of understanding within their respective spheres, for such  harmonious  working of the three constituents  of  the democratic  State alone will help the peaceful  development, growth  and stabilization of the democratic way of  life  in this country. But  when,  as  in the present case,  a  controversy  arises between the House and the High Court, we must deal with  the problem objectively and impersonally.  There is no  occasion to  import  heat  into  the  debate  or  discussion  and  no justification  for the use of strong language.  The  problem presented  to  us  by  the  present  reference  is  one   of construing the relevant provisions of +,he Constitution  and though its consideration may present some difficult aspects, we  must  attempt to find the answers as best  we  can.   In dealing  with a dispute like the present which concerns  the jurisdiction, the dignity and the independence of two august bodies in a State, we must remember that the objectivity  of our  approach itself may incidentally be on trial.   It  is, therefore,  in a spirit of detached objective enquiry  which is  the distinguishing feature of judicial process  that  we propose  to find solutions to the questions framed  for  our advisory  opinion.  If ultimately we come to the  conclusion that the view pressed before us by Mr. Setalvad for the High Court Is erroneous, we would not hesitate to pronounce ’ our verdict 448 against that view.  On the other hand, if we ultimately come to the conclusion that the claim made by Mr. Seervai for the House cannot, be sustained, we would not falter to pronounce our  verdict accordingly.  In dealing with problems of  this importance and significance, it is essential that we  should proceed  to  discharge  our duty  without  fear  or  favour, affection  or ill-will and with the full consciousness  that it  is our solemn obligation to uphold the Constitution  and the laws. It would be recalled that Art. 194(3) consists of two parts. The  first  part empowers the Legislature to define  by  law from  time  to time its powers, privileges  and  immunities, whereas the Second part provides that until the  legislature chooses so to define its powers, privileges and  immunities, its powers, privileges and immunities would be those of  the House of Commons of the Parliament of the United Kingdom and of  its members and committees, at the commencement  of  the Constitution.   Mr.  Seervai’s argument is that  the  latter part  of Art. 194(3) expressly provides that all the  powers which  vested in the House of Commons at the relevant  time, vest  in  the House.  This broad claim, however,  cannot  be accepted  in  its entirety, because there  are  some  powers which  cannot obviously be claimed by the House.   Take  the privilege  of  freedom of access which is exercised  by  the House of Commons as a body and through its Speaker "to  have at all times the right to petition, counsel, or  remonstrate



with their Sovereign through their chosen representative and have a favorable construction placed on his words was justly regarded by the Commons as fundamental privilege(1)".  It is hardly  necessary to point out that the House  cannot  claim this  privilege.  Similarly, the privilege to pass  acts  of attainder and the privilege of impeachment cannot be claimed by  the  House.   The  House  of  Commons  also  claims  the privilege in regard to its own Constitution.  This privilege is expressed in three ways, first by the order of new  writs to fill vacancies that arise in the Commons in the course of a  parliament;  secondly,  by  the  trial  of   controverted elections; and thirdly, by determining the qualifications of its  members  in cases of doubt(1).  This  privilege  again, admittedly,  cannot be claimed by the House.  Therefore,  it would  not be correct to say that an powers  and  privileges which were possessed by the House of Commons at the relevant time can be claimed by the House. In construing the relevant provision of Art. 194(3), we must deal with the question in the light of the previous decision of this (1)  Sir  T. Erskine May’s Parliamentary Practice(16th  ed.) p. 86. (2)  lbid, p. 175. 449 Court  in  Pandit  Sharma’s(1)  case.   It  is,   therefore, necessary to recall what according to the majority  decision in that case, is the position of the provision contained  in Art. 194(3).  In that case. the Editor of the English  daily newspaper,  Search Light of Patna, had been called  upon  by the  Secretary  of the Patna Legislative  Assembly  to  show cause  before  the Committee of Privileges  why  appropriate action  should  not be taken against him for the  breach  of privileges  of the Speaker and the Assembly in that  he  had published  in  its  entirety the  speech  delivered  in  the Assembly by a Member, portions of which had been directed to be expunged by the Speaker.  The Editor who moved this Court under Art. 32, contended that the said notice and the action proposed  to  be  taken by  the  Committee  contravened  his fundamental right of freedom of speech and expression  under Art. 19 (1) (a), and also trespassed upon the protection  of his  personal  liberty guaranteed under Art. 21.  It  is  on these  two  grounds  that the validity  of  the  notice  was impeached  by him.  This claim was resisted by the House  by relying  on  Art.  194(3).  Two  questions  arose,  one  was whether the privilege claimed by the House was a  subsisting privilege  in  England at the relevant time; and  the  other was,  what was the result of the impact of Articles  19  (1) (a) and 21 on the provisions contained in the latter part of Article   194(3)?   The  majority  decision  was  that   the privilege  in question was subsisting at the  relevant  time and  must,  therefore, be deemed to be  included  under  the latter  part of Art. 194 (3).  It also held that Art. 19  (1 )(a)  did  not apply, because under the rule  of  harmonious construction,  in a case like the present where Art. 19  (1) (a) was in direct conflict with Art. 194(3), the  particular provision  in  the  latter article would  prevail  over  the general provision contained in the former; it further,  held that though Art. 21 applied, it had not been contravened. The minority view, on the other hand, was that the privilege in  question  had  not been established in  fact,  and  that alternatively,  if  it be assumed that  such  privilege  was established  and was, therefore, included under  the  latter part of Art. 194(3), it must be controlled by Art.  19(1)(a) on the ground that fundamental rights guaranteed by Part III of  the Constitution were of paramount importance  and  must



prevail over a provision like that contained in Art.  194(3) which may be inconsistent with them. At  this stage, it would be useful to indicate  broadly  the points  decided both by the majority and minority  decisions in  that  case.   Before  the Court, it  was  urged  by  the petitioner that though Art. (1)  [1959] Supp. 1 S.C.R. 806. 450 194(3)  had not been made subject to the provisions  of  the Constitution, it does not necessarily mean that it is not so subject, and that the several clauses of Art. 194 should not be  treated as distinct ,and separate provisions but  should be read as a whole and that, so read, all the clauses should be  taken as subject to the provisions of  the  Constitution which,  of  course,  would  include  Art.  19(1)(a).    This argument was rejected both by the majority and -the minority views. The next argument urged in that case was that Art. 194(1) in reality operates as an abridgement of the fundamental  right of  freedom  of  speech  conferred  by  Art.  19(1)(a)  when exercised  in the State Legislatures, but Art.  194(3)  does not, in terms, purport to be an exception to Art.  19(1)(a). This  argument  was also rejected by both the  majority  and the’  minority views.  It was ,pointed out by  the  majority decision  that  clause  (1) of Art. 194  no  doubt  makes  a substantive  provision  of the said clause  subject  to  the provisions  of the Constitution; but in the  context,  those provisions  cannot  take in Art. 19 (1)  (a),  because  this latter article does not purport to regulate the procedure of the  legislature  and  it is only  such  provisions  of  the Constitution which regulate the procedure of the legislature which. are included in the first part of Art. 194(1). The third argument urged by the petitioner was that Art.  19 enunciates  a  transcendental principle and  should  prevail over  the  provisions of Art. 194(3),  particularly  because these  latter  provisions were of  a  transitory  character. This  contention was rejected by the majority view, but  was upheld by the minority view. The  fourth argument urged was that if a law is made by  the legislature   prescribing   ’its  powers,   privileges   and immunities,   it  would  be  subject  to  Art.  13  of   the Constitution  and  would  become  void  to  the  extent   it contravenes  the fundamental rights enshrined in  Part  III. This  contention was accepted by both the majority  and  the minority decisions. That  left  one  more  point to be  considered  and  it  had reference to the observations made in an earlier decision of this Court in Gunupati Keshavram Reddy v. Nafisul Hasan  and the State of U.P. (1).  The majority decision has  commented on  this  earlier decision and has observed  that  the  said decision  was  based entirely on a  concession  and  cannot, therefore,  be  deemed to be a considered decision  of  this Court.  As we will presently point out, (1)  A.I.R. 1954 S.C. 636. 451 the said decision dealt with the applicability of Art. 22(2) to a case falling under the latter part of Art. 194(3).  The minority  opinion, however, treated the said decision  as  a considered decision which was binding on the Court. We  ought to add that the majority decision, in terms,  held that  Art.  21 applied, but, on the merits, it came  to  the conclusion  that  its  alleged contravention  had  not  been proved.  On the minority view it was unnecessary to consider whether  Art.  21  as such applied, because  the  said  view treated all the fundamental rights guaranteed by Part III as



paramount and, therefore, each one of them would control the provisions of Art. 194(3). It would thus be seen that in the case of Pandit  Sharma(1), contentions urged by the petitioner did not raise a  general issue  as  to  the relevance and applicability  of  all  the fundamental  rights  guaranteed  by Part  HI  at  all.   The contravention of only two articles was pleaded and they were Articles  19(1)(a)  and  21.   Strictly  speaking,  it  was, therefore,  unnecessary to consider the larger issue  as  to whether  the latter part of Art. 194(3) was subject  to  the fundamental  rights  in  general, and indeed,  even  on  the majority  view  it  could not be said  that  the  said  view excluded the application of all fundamental rights, for  the obvious  and  simple  reason that Art. 21  was  held  to  be applicable and the merits of the petitioner’s argument about its  alleged  contravention in his case  were  examined  and rejected.   Therefore, we do not think it would be right  to read  the  majority  decision  as  laying  down  a   general proposition  that whenever there is a conflict  between  the provisions  of the latter part of Article 194(3) and any  of the provisions of the fundamental rights guaranteed by  Part III,  the  latter  must always yield  to  the  former.   The majority decision, therefore, must be taken to have  settled that Art. 19(1)(a) would not apply, and Art. 21 would. Having  reached this conclusion, the majority  decision  has incidentally commented on the decision in Gunupati Keshavram Reddy’s(2)     case.  Apart from the fact that there was  no contro- versy about the  applicability  of Art. 22  in  that case, we ought to point out,  with respect, that the comment made  by  the majority judgment on the earlier  decision  is partly not accurate.  In that case, a Constitution Bench  of this  Court was concerned with the detention of  Mr.  Mistry under  an order passed by the Speaker of the  Uttar  Pradesh Legislative  Assembly  for breach of privilege of  the  said Assembly.   The  validity  of  Mr.  Mistry’s  detention  was challenged on the ground that it had contravened Art.  22(2) of (1) (1959]  Supp.  1 S.C.R. 806. (2) A.I.R. 1954 S.C. 636. 452 the Constitution.  The facts alleged in support of this plea were admitted to be correct by the Attorney-General, and  on those  admitted  facts,  the Court held  that  Mr.  Mistry’s detention was -clearly invalid.  Referring to this decision, the  majority  judgment  has  observed  that  it  "proceeded entirely  on a concession of counsel and cannot be  regarded as  a considered opinion on the subject." There is no  doubt that  the  first part of this comment is  not  accurate.   A concession  was made by the Attorney-General not on a  point of  law  which was decided by the Court, but on a  point  of fact;  and so, this part of the comment cannot  strictly  be said to be justified.  It is, however, true that there is no discussion  about  the merits of the  contention  raised  on behalf  of Mr. Mistry and to that extent, it may  have  been permissible to the majority judgment to say that it was  not a considered opinion of the Court.  But, as we have  already pointed  out,  it  was hardly  necessary  for  the  majority decision   to  deal  with  the  point  pertaining   to   the applicability  of  Art. 22(2), because that  point  did  not arise  in  the  proceedings  before  the  Court  in   Pandit Sharma’s(1) case.  That is why we wish to make it clear that the orbiter observations made in the majority judgment about the validity or correctness ,of the earlier decision of this Court  in  Gunther Keshavram Reddy’s(1) case should  not  be taken  as  having decided the point in question.   In  other



words, the question as to whether Art. 22(2) would apply  to such  a case may have to be considered by this Court if  and when it becomes necessary to do so. Before  we  part with the decision of this Court  in  Pandit Sharma’s(1) case, it is necessary to refer to another point. We  have  already observed that the  majority  decision  has accepted  the, contention raised by the petitioner  in  that case that of a law were passed by the Legislature of a State prescribing   its  powers,  privileges  and  immunities   as authorised  by  the first part of Art. 194(3), it  would  be subject to Art. 13.  Mr. Seervai has attempted to  challenge the  correctness of this conclusion.  He contends  that  the power  conferred  on the legislatures by the first  part  of Art.  194(3) is a constitutional power, and so, if a law  is passed in exercise of the said power, it will be outside the scope of Art. 13.  We are unable to accept this  contention. It  is  true  that the power to make such  a  law  has  been conferred  on  the legislatures by the first  part  of  Art. 194(3); but when the State Legislatures purport to  exercise this  power, they will undoubtedly be acting under Art.  246 read with Entry 39 of List IT.. The enactment of such a  law cannot be said to be in exercise of a constituent power, and so,  such a law will have to be treated as a law within  the meaning (1) [1959] Supp.  1 S.C.R. 806. (2) A.I.R. 1954 S. C. 636. 453 of  Art. 13.  That is the view which the  majority  decision expressed  in  the case of Pandit Sharma(1), and we  are  in respectful agreement with that view. Mr. Seervai attempted to support his contention by referring to  some  observations  made  by  Venkatarama  Aiyar  J.  in Ananthakrishnan  v. State of Madras(1).  In that  case,  the learned Judge has observed that "[Art. 131 applies in  terms only  to  laws  in  force before  the  commencement  of  the Constitution  and to laws to be enacted by the States,  that is,  in future.  It is only those two classes of  laws  that are declared void as against the provisions of Part III.  It does  not  apply to the Constitution itself.   It  does  not enact that the other portions of the Constitution should  be void  as against the provisions in Part III and it would  be surprising  if it did, seeing that all of them are parts  of one   organic   whole."   This   principle   is    obviously unexceptionable.  This principle could have been invoked  if it  had  been urged before us that either the first  or  the second  part of Art. 194(3) itself is invalid because it  is inconsistent with the relevant provisions in Part III  which provides for fundamental rights.  That, however, is not  the argument  of  Mr. Setalvad, nor was it  the  argument  urged before  this  Court in the case of  Pandit  Sharma(1).   The argument  was  and  is that if in  pursuance  of  the  power conferred by the first part of Art. 194(3) a law is made  by the legislature, it is a law within the meaning of Art.  13, and  this  argument proceeds on the words of  Art.  13  (2), itself.  Art. 13 (2) provides that the State shall not  make any law which takes away or abridges the rights conferred by Part  III and any law made in contravention of  this  clause shall, to the extent of the contravention, be void.  The law with  which  we are dealing does not purport  to  amend  the Constitution  and  would not, therefore, form  part  of  the Constitution  when it is passed; like other laws  passed  by the  Legislatures  in  exercise of  the  legislative  powers conferred  on  them, this law would also be law  within  the meaning  of Art. 13, and so, it is unreasonable  to  contend that  the  view taken by this Court in the  case  of  Pandit



Sharma(,,)  that  such  a  law  would  be  subject  to   the fundamental  rights  and would fall within the  mischief  of Art.   13(2),  requires  reconsideration.    The   position, therefore,  is that,in dealing with the present  dispute  we ought  to proceed on the basis that the latter part of  Art. 194(3)  is not subject to Art. 19(1) (a), but is subject  to Art. 21. The next question which we ought to consider is : was it the intention  of  the Constitution to  perpetuate  the  dualism which (1) [1959] Supp.  1 S. C. R. 806. (2) I.L.R. (1952] Mad. 933, 951. 454 rudely  disturbed public life in England in the  17th,  18th and  19th centuries ? The Constitution-makers were aware  of several  unhappy situations which arose as a result  of  the conflict between the Judicature and the Houses of Parliament and  they knew that these situations threatened to create  a deadlock  in the public life of England.  When they  enacted Art.  194(3), was it their intention to leave this  conflict at  large, or have they adopted a scheme  of  constitutional provisions  to  resolve that conflict ? The answer  to  this question   would   obviously  depend   upon   a   harmonious construction of the relevant provisions of the  Constitution itself. Let us first take Art. 226.  This Article confers very  wide powers  on  every High Court throughout the  territories  in relation to which it exercises jurisdiction, to issue to any person  or  authority, including in  appropriate  cases  any Government,  within those territories directions, orders  or writs,  including  writs  in the nature  of  habeas  corpus, mandamus,  prohibition, quo warranto, certiorari, or any  of them  for the enforcement of any of the rights conferred  by Part  HI and for any other purpose.  It is hardly  necessary to emphasis that the language used by Art. 226 in conferring power on the High Courts is very wide.  Art. 12 defines  the "State" as including the Legislature of such State, and  so, prima  facie,  the power conferred on the High  Court  under Art. 226(1) can, in a proper case, be exercised even against the  Legislature.   If an application is made  to  the  High Court for the issue of a writ of habeas corpus, it would not be  competent to the House to raise a preliminary  objection that  the  High Court has no jurisdiction to  entertain  the application  because  the detention is by an  order  of  the House.  Art. 226(1) read by itself, does not seem to  permit such  a  plea to be raised.  Art. 32 which  deals  with  the power  of  this  Court, puts the matter on  a  still  higher pedestal;  the  right  to move  this  Court  by  appropriate proceedings  for the :enforcement of the fundamental  rights is  itself a guaranteed fundamental right, and so,  what  we have  said about Art. 226(1) is still more true  about  Art. 32(1). Whilst  we are considering this aspect of the matter, it  is relevant  to  emphasise that the conflict which  has  arisen between the High Court and the House is, strictly  speaking, not a conflict between the High Court and the House as such, but between the House and a citizen of this country.  Keshav Singh claims certain fundamental rights which are guaranteed by  the  Constitution and he seeks to move  the  High  Court under  Art.  226 on the ground that his  fundamental  rights have been contravened illegally.  The High Court  purporting to exercise its power under Art. 226(1), 455 seeks  to  examine the merits of the claims made  by  Keshav Singh and issues an interim order.  It is this interim order



which  has led to the present unfortunate  controversy.   No doubt,  by  virtue  of the resolution passed  by  the  House requiring  the Judges to appear before the Bar of the  House to explain their conduct, the controversy has developed into one between the High Court and the House; but it is  because the High Court in the discharge of its duties as such  Court intervened to enquire into the allegations made by a citizen that  the  Judges have been compelled to  enter  the  arena. Basically  and fundamentally, the controversy is  between  a citizen  of Uttar Pradesh and the Uttar Pradesh  Legislative Assembly.   That is why in dealing with the  question  about the  extent  of the powers of the House  in.  dealing,  with cases  of  contempt committed outside  its  four-walls,  the provisions of Art. 226 and Art. 32 assume significance.   We have already pointed out that in Pandit Sharma(1) this Court has held that Art. 21 applies where powers are exercised  by the legislature under the latter part of Art. 194(3).  If  a citizen  moves  the  High  Court  on  the  ground  that  his fundamental  right under Art. 21 has been  contravened,  the High Court would be entitled to examine his claim, and  that itself would introduce some limitation on the extent of  the powers claimed by the House in the present proceedings. There  are  two other articles to which  reference  must  be made.  Art. 208(1) provides that a House of the  Legislature of  a  State may make rules for regulating, subject  to  the provisions  of  this  Constitution, its  procedure  and  the conduct of its business.  This provision makes it  perfectly clear that if the House were to make any rules as prescribed by  it,  those  rules would be subject  to  the  fundamental rights guaranteed by Part M. In other words, where the House makes rules for exercising its powers under the latter  part of Art. 194(3), those rules must be subject to the fundamen- tal rights of the citizens. Similarly, Art. 212(1) makes a provision which is  relevant. It  lays  down that the validity of any proceedings  in  the Legislature  of a State shall not be called in  question  on the  ground of any alleged irregularity of procedure.   Art. 212(2)  confers immunity on the officers and members of  the Legislature  in  whom  powers are vested  by  or  under  the Constitution  for  regulating procedure or  the  conduct  of business, or for maintaining order, in the Legislature  from being subject to the jurisdiction of any court in respect of the exercise by him of those powers.  Art. 212(1) (1) [1959]  pp. 1 S.C.R. 806. Sup.C.I.165-4 456 seems to make it possible for a citizen to call in  question in  the  appropriate  court  of  law  the  validity  of  any proceedings  inside the legislative chamber if his  case  is that the said proceedings suffer not from mere  irregularity of  procedure,  but  from an illegality.   If  the  impugned procedure is illegal and unconstitutional, it would be  open to be scrutinised in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than  this that the procedure was irregular.  That again  is another  indication  which  may afford  some  assistance  in construing  the scope and extent of the powers conferred  on the House by Art. 194(3). That  takes us to Art. 211.  This article provides  that  no discussion  shall take place in the Legislature of  a  State with  respect  to the conduct of any Judge  of  the  Supreme Court  or  of a High Court in the discharge of  his  duties. This   provision  amounts  to  an  absolute   constitutional prohibition  against any discussion in the Legislature of  a State in respect of the judicial conduct of a Judge of  this



Court  or of the High Court.  Mr. Setalvad who appeared  for the  Judges  has, based his argunent  substantially  on  the provisions   of   this  article.   He  contends   that   the unqualified  and absolute terms in which the  constitutional prohibition  is couched in Art. 211  unambiguously  indicate that  the conduct of a Judge in the discharge of his  duties can  never become the subjectmatter of any action  taken  by the House in exercise of its powers or privileges  conferred by  the  latter  part of Art. 194(3).  If  a  Judge  in  the discharge  of his duties commits contempt of the House,  the only  step  that can be taken against him is  prescribed  by Art.  121.  Art. 121 provides that no discussion shall  take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge  of his duties except upon a motion for presenting an address to the  President  praying  for the removal  of  the  Judge  as hereinafter   provided.   Reading  Articles  121   and   211 together,  two points clearly emerge.  The judicial  conduct of  the Judge cannot be discussed in the State  Legislature. It can be discussed in the Parliament only upon a motion for presenting  an  address  to the President  praying  for  the removal  of the Judge.  The Constitution-makers attached  so much  importance  to the independence of the  Judicature  in this  country that they thought it necessary to  place  them beyond  any  controversy, except in the manner  provided  by Art. 121.  If the judicial conduct of a Judge cannot be dis- cussed  in  the  House, it is inconceivable  that  the  same conduct  can  be  legitimately made  the  subject-matter  of action by the House 457 in  exercise  of  its powers under Art.  194(3).   That,  in substance,  is the principal argument which has  been  urged before us by Mr. Setalvad. On the other hand, Mr. Seervai has argued that the effect of the   provisions  contained  in  Art.  211  should  not   be exaggerated.  He points out that Art. 211 appears in Chapter HI  which deals with the State Legislature and occurs  under the topic "General Procedure", and so, the only object which it  is intended to serve is the regulation of the  procedure inside  the chamber of the Legislature.  He has also  relied on  the provisions of Art. 194(2) which  expressly  prohibit any action against a member of the Legislature for  anything said or any vote given by him in the Legislature.  In  other words,  if  a  member of  the  Legislature  contravenes  the absolute prohibition prescribed by Art. 21 1, no action  can be  taken against him in a court of law and that,  says  Mr. Seervai,  shows  that the significance  of  the  prohibition contained in Art. 211 should not be overrated.  Besides,  as a  matter  of construction, Mr. Seervai  suggests  that  the failure to comply with the prohibition contained in Art. 211 cannot  lead  to  any  constitutional  consequence,  and  in support  of  this argument, he has relied on a  decision  of this Court in State of U.P. v. Manbodhan Lal  Srivastava(1). In that cases, this Court was dealing with the effect of the provisions contained in Art. 320 of the Constitution.   Art. 320  prescribes the functions of the Public Service  Commis- sions,  and  by clause 3(c) it has provided that  the  Union Public  Service  Commission  or  the  State  Public  Service Commission,  as the case may be, shall be consulted  on  all disciplinary  matters affecting a person serving  under  the Government of India or the Government of a State in a  civil capacity, including memorials or petitions relating to  such matters.   It  was held that the provisions of  this  clause were not mandatory and did not confer any right on a  public servant, so that the absence of consultation or any  irregu-



larity in consultation did not afford him a cause of  action in a court of law.  Mr. Seervai’s argument is that the words used  in  Art.  211 should be similarly  construed  and  the prohibition on which Mr. Setalvad relies should be deemed to be merely directory and not mandatory. We  are not impressed by Mr. Seervai’s arguments.  The  fact that Art. 21 1 appears under a topic dealing with "Procedure Generally",  cannot mean that the prohibition prescribed  by it  is  not  mandatory.  As we have  already  indicated,  in trying   to  appreciate  the  full  significance   of   this prohibition, we must read Articles 211 (1)  [1958] S.C.R. 533. 458 and  121  together.  It is true that Art.  194(2)  in  terms provides for immunity of action in any court in respect of a speech  made  by  a member or a vote given  by  him  in  the legislative    Assembly.    But   this   provision    itself emphatically  brings out the fact that the Constitution  was anxious  to  protect full freedom of speech  and  expression inside  the  legislative chamber, and so, it took  the  pre- caution  of  making a specific provision to  safeguard  this freedom  of  speech and expression by saying that  even  the breach of the constitutional prohibition prescribed by  Art. 211  should not give rise to any action.   Undoubtedly,  the Speaker  would not permit a member to contravene Art. 21  1; but if, inadvertently, or otherwise, a speech is made within the  legislative chamber which contravences Art. 21  1,  the Constitution-makers  have  given protection to  such  speech from  action in any court.  The House itself may and  would, no doubt, take action against him. It  is also true that if a question arises as to  whether  a speech  contravenes  Art. 21 1 or not, it would be  for  the Speaker  to give his ruling on the point.  In  dealing  with such  a question, the Speaker may have to  consider  whether the  observations  which  a  member wants  to  make  are  in relation  to  the  conduct of a Judge in  discharge  of  his duties, and in that sense, that is a matter for the  Speaker to decide.  But the significant fact still remains that  the Constitution-makers thought it necessary to make a  specific provision by Art. 194(2) and that is the limit to which  the Constitution has gone in its objective of securing  complete freedom  of speech and expression within the  four-walls  of the legislative chamber. The latter part of Art. 194(3) makes no such exception,  and so,  it would be logical to hold that whereas a speech  made in  contravention of Art. 211 is protected from action in  a court  by  Art. 194(2), no such exception or  protection  is provided  in  prescribing the powers and privileges  of  the House  under the latter part of Art. 194(3).  If a Judge  in the  discharge  of  his  duties passes  an  order  or  makes observations  which  in the opinion of the House  amount  to contempt, and the House proceeds to take action against  the Judge  in that behalf, such action on the part of the  House cannot  be protected or justified by any specific  provision made by the latter part of Art. 194(3).  In our opinion, the omission to make any such provision when contrasted with the actual  provision  made  by  Art.  194(2)  is  riot  without significance.   In other words, this contrast leads  to  the inference  that the Constitution makers took the  view  that the  utmost that can be done to assure absolute  freedom  of speech and expression inside the legislative 459 chamber,  would be to make a provision in Art.  194(2);  and that  is about all.  The conduct of a Judge in  relation  to the discharge of his duties cannot be the subject-matter  of



action  in  exercise  of the powers and  privileges  of  the House.   Therefore,  the position is that the conduct  of  a Judge  in  relation to the discharge of  his  duties  cannot legitimately  be discussed inside the, House, though  if  it is,  no  remedy lies in a court of law.   But  such  conduct cannot  be made the subject-matter of any proceedings  under the  latter part of Art. 194(3).  If this were not the  true position, Art. 211 would amount to a meaningless declaration and  that clearly could not have been the intention  of  the Constitution. Then,  as regards the construction of Art. 21 1 itself,  Mr. Seervai is no doubt in a position to rely upon the  decision of   this   Court  in  State  of  U.P.  v.   Manbodhan   Lal Srivastava(1).   But it would be noticed that in  coming  to the   conclusion  that  the  provision  contained  in   Art. 320(3)(c)  was  not mandatory, this Court  has  referred  to certain other facts which determined the said  construction. Even so, this Court has accepted the principle laid down  by the  Privy  Council in Montreal Street  Railway  Company  v. Normandin(1)  wherein the Privy Council observed  that  "the question  whether provisions in a statute are  directory  or imperative  has very frequently arisen in this country,  but it has been said that no general rule can be laid down,  and that in every case the object of the statute must be  looked at."  question  as  to whether  a statute  is  mandatory  or directory depends upon the intent of the legislature and not upon  the  language  in which the  intent  is  clothed.  The meaning  and intention of the legislature must  govern,  and these  are to be ascertained, not only from the  phraseology of  the provision, but also by consider in its  nature,  its design,  and  the  consequences  which  would  follow   from construing it the one way or the other."(1) These principles would  clearly  negative  the  construction  for  which  Mr. Seervai contends.  It is hardly necessary to refer to  other provisions  of  the  Constitution  which  are  intended   to safeguard  the  independence  of  the  Judicature  in   this country.   The  existence  of  a  fearless  and  independent judiciary can be said to be the very basic foundation of the constitutional structure in India, and so, it would be idle, we   think,  to  contend  that  the   absolute   prohibition prescribed  by Art. 21 1 should be read as merely  directory and  should  be  allowed  to be  reduced  to  a  meaningless declaration by permitting the House to take action against a Judge in respect of his conduct in the discharge of his (1) [1958] S.C.R. 533     (2) L.R. [1917] A.C. 170. (3)  People  v. De Renna (2 N.Y.S.) (2) 694,166 Misc.  (582) cited in Crawford, Statutory Construction p. 516. 460 duties.   Therefore, we are satisfied that Mr.  Setalvad  is right  when he contends that whatever may be the  extent  of the  powers  and privileges conferred on the  House  by  the latter part of Art. 194(3), the power to take action against a Judge for contempt alleged to have been committed by  him, by his act in the discharge of his duties cannot be included in  them.  Thus, Mr. Setalvad’s case is that so far  as  the Judges are concerned, the position is quite clear that as  a result of the impact of the provisions contained in Articles 226 and 211, judicial conduct can never become the  subject- matter of contempt proceedings under the latter part of Art. 194(3),  even if it is assumed that such conduct can  become the  subjectmatter of contempt proceedings under the  powers and privileges possessed by the House of Commons in England. On  the  other  hand, Mr. Seervai  disputes  Mr.  Setalvad’s contention  as  to the impact of Arts. 226 and  211  on  the latter  part of Art. 194(3) and further urges that  even  if



Mr.  Setalvad  be right in respect of  that  contention,  he would  not be entitled to dispute the validity of the  power and  privilege  claimed by the House of  Commons-which  can, therefore,   be  claimed  by  the  House  in   the   present proceedings-that  no  court  can  go  behind  a  general  or unspeaking  warrant.  In order to determine the validity  of these  rival  contentions, it is now necessary  to  consider very briefly what was the position of this particular  power and  privilege at the commencement of the Constitution.   In dealing with this question, we will also very broadly  refer to the wider aspect of the powers, privileges and immunities which vest in both the Houses of Parliament in England. While considering the question of the powers, privileges and immunities of the English Parliament it would, we think,  be quite  safe  to base ourselves on  the  relevant  statements which have been made in May’s Parliamentary Practice.   This work has assumed the status of a classic on the subject  and is  usually  regarded  as  an  authoritative  exposition  of parliamentary  practice;  and so, we think it  would  be  an exercise  in futility to attempt to deal with this  question otherwise   than   by  reference  to   May.    Parliamentary privilege,  according  to May, is the sum  of  the  peculiar rights  enjoyed by each House collectively as a  constituent part of the High Court of Parliament, and by members of each House  individually, without which they could not  discharge their  functions, and which exceed those possessed by  other bodies or individuals.  Thus, privilege, though part of  the law  of the land, is to a certain extent an  exemption  from the ordinary law.  The particular privileges of the House of Commons have been defined as "the sum of the fundamental 461 rights of the House and of its individual Members as against the prerogatives of the Crown; the authority of the ordinary courts  of  law  and the special rights  of  the  House,  of -Lords".   There  is  a distinction  between  privilege  and function,  though it is not always apparent.  On the  whole, however,   it  is  more  convenient  to  reserve  the   term "privilege"  to  certain fundamental rights  of  each  House which  are generally accepted as necessary for the  exercise of its constitutional functions.  The distinctive mark of  a privilege  is  its ancillary character.  The  privileges  of Parliament  are rights which are "absolutely  necessary  for the  due  execution  of its powers".  They  are  enjoyed  by individual  Members,  because the House cannot  perform  its functions  without  unimpeded  use of the  services  of  its Members; and by each House for the protection of its Members and the vindication of its own authority and dignity(1). May  points  out that except in one respect,  the  surviving privileges  of the House of Lords and the House  of  Commons are  justifiable  on  the same ground of  necessity  as  the privileges  enjoyed by legislative assemblies of  the  self- governing Dominions and certain British colonies, under  the common  law  as  a  legal  incident  of  their   legislative authority.   This  exception  is the power  -to  punish  for contempt.   Since  the  decision of  the  Privy  Council  in Kielley  v.  Carson(1) it has been held that this  power  is inherent in the House of Lords and the House of Commons, not as a body with legislative functions, but as a descendant of the  High  Court of Parliament and by virtue of the  lex  et consuetudo  parliamenti(1).  Historically as originally  the weaker  body, the Commons had a fiercer and  more  prolonged struggle for the assertion of their own privileges, not only against  the  Crown  and the courts, but  also  against  the Lords.   Thus the concept of privilege which  originated  in the special protection against the King began to be  claimed



by the Commons as customary rights, and some of these claims in  the course of repeated efforts to assert  them  hardened into legally recognised "privileges". In regard to the fierce struggle by the House of Commons  to assert  its privileges in a militant way, May has  made  the significant  comment  that these claims  to  privilege  were established  in  the  late fifteenth and  in  the  sixteenth centuries and were used by the House of Commons against  the King in the seventeenth and-arbitrarily -against the  people in the eighteenth century.  Not until the nineteenth century was   equilibrium  reached  and  the  limits  of   privilege prescribed  and  accepted by Parliament, the Crown  and  the Courts(3).   The two Houses are thus of equal  authority  in the (1) May’s Parliamentary Practice pp. 42-43. (2) 4 Moore P.C. 63. (3)  May’s Parliamentary Practice, p. 44. 462 administration of a common body of privileges.  Each  House, as  a  constituent  part of Parliament,  exercised  its  own privileges  independently of the other.  They  are  enjoyed, however,  not  by any separate right peculiar to  each,  but solely  by  virtue  of the law  and  custom  of  Parliament. Generally  speaking,  all  privileges  properly   so-called, appertain  equally  to both Houses.  They are  declared  and expounded  by  each  House. and breaches  of  privilege  are adjudged and censured by each; but essentially, it is  still the  law  of Parliament that is thus  administered.   It  is significant  that although either House may expound the  law of  Parliament,  and  vindicate its own  privileges,  it  is agreed that no new privilege can be created.  This  position emerged as a result of the historic resolution passed by the House  of  Lords in 1.704. This  resolution  declared  "that neither  House  of  Parliament have power, by  any  vote  or declaration,  to  create to themselves new  privileges,  not warranted by the known laws and customs of Parliament.’ This resolution was communicated by the House of Lords to Commons and  assented  to by them(1).  Thus, there can be  no  doubt that by its resolutions, the House of Commons cannot add  to the list of its privileges and powers. It  would be relevant at this stage to mention  broadly  the main  privileges which are claimed by the House of  Commons. Freedom  of  speech is a privilege essential to  every  free council  or  legislature, and that is claimed  by  both  the Houses  as a basic privilege.  This privilege was from  1541 included  by  established practice in the  petition  of  the Commons  to the King at the commencement of the  Parliament. It   is   remarkable  that  notwithstanding   the   repeated recognition  of this privilege, the Crown and  the,  Commons were  not  always agreed upon its  limits.   This  privilege received final statutory recognition after the Revolution of 1688.   By  the 9th Article of the Bill of  Rights,  it  was declared  "that  the  freedom  of  speech,  and  debates  or proceedings  in  Parliament, ought not to  be  impeached  or questioned in any court or place out of Parliament"(2). Amongst  the  other privileges are : the  right  to  exclude strangers,  the right to control publication of debates  and proceedings,   the   right  to   exclusive   cognizance   of proceedings in Parliament, the right of each House to be the sole judge of the lawfulness of its own proceedings, and the right implied to punish its own Members for their conduct in Parliament(1). Besides  these  privileges, both Houses of  Parliament  were possessed  of  the  privilege  of  freedom  from  arrest  or molestation,



(1)  May’s Parliamentary Practice, p. 47. (2) Ibid., p. 52. (3) Ibid., pp. 52-53. 463 and  from being impleaded, which was claimed by the  Commons on  ground  of prescription.  Although  this  privilege  was given  royal  and statutory recognition at  an  early  date, ironically  enough  the  enforcement of  the  privilege  was dependent on the Lords and King, who were not always willing to  protect the Commons.  In this connection, May refers  to the  case  of  Thorpe who was the Speaker of  the  House  of Commons and was imprisoned in 1452, under execution from the Court of Exchequer, at the suit of the Duke of York.  It  is an eloquent testimony to the dominance of the House of Lords and  the  weakness  of  the  House  of  Commons  which   was struggling  to assert its freedom and its rights  that  when the  House  of Lords in response to the application  of  the Commons  adjudged that Thorpe should remain in  prison,  the Commons  so  easily acquiesced in this decision  that  they, immediately proceeded to the election of another Speaker(1). May  points  out that certain privileges have in  course  of time, been discontinued.  Amongst them may be mentioned  the freedom   from   being   impleaded.    Similarly,   by   the Parliamentary   Privilege   Act,  1770  a   very   important limitation  of  the  freedom from arrest  was  affected.   A somewhat similar position arises in respect of the privilege of  exemption  from jury service (2). In fact. the  list  of privileges claimed by the House of Commons in early days was a  long and formidable list and it showed how the  House  of Commons  was then inclined to claim all kinds of  privileges for  itself  and its members.  In course of  time,  however, many  of these privileges fell into disuse and faded out  of existence,  some  were controlled by legislation  while  the major   privileges  which  can  be  properly  described   as privileges  essential for the efficient functioning  of  the House, still continued in force. In considering the nature of these privileges generally, and particularly  the  nature of the privilege  claimed  by  the House  to punish for contempt, it is necessary  to  remember the  historical origin of this doctrine of  privileges.   In this connection, May has emphasised that the original of the modern Parliament consisted in its judicial functions.  "One of the principal lines of recent research",  says May,  "has revealed  the  importance of the judicial  elements  in  the origins of Parliament.  Maitland, in his introduction to the Parliament  Roll  of 1305, was the first  to  emphasise  the importance of the fact that Parliament at that time was  the King’s  " great court" and was thereby (among other  things) the  highest court of royal justice.  There is  now  general agreement in recognising the strongly judicial streak in the character of the earliest (1) May’s Parliamentary Practice, p. 70. (2) Ibid. pp., 75-77. 464 Parliaments  and  the  fact that,  even  under  Edward  111, although  Parliaments devoted a considerable part  of  their time to political and economic business, the dispensation of justice remained one of their chief functions in the eyes of the  King’s subjects"(1).  As is well-known, the  Parliament of  the  United Kingdom is composed of  the  Sovereign,  the House  of  Lords, and the House of Commons.   These  several powers  collectively form the Legislature; and, as  distinct members  of  the constitution, they exercise  functions  and enjoy privileges peculiar to each. The  House of Lords, Spiritual and Temporal,  sit  together,



and  jointly  constitute the House of Lords(2).   The  exact date of the admission of the Commons to a distinct place  in the  legislature has always been a subject  of  controversy; but  as  it  is  admitted that  they  often  sat  apart  for deliberation,  particular  instances in which  they  met  in different  places  will not determine  whether  their  sepa- ration,  at those times, was temporary or  permanent.   When the Commons deliberated apart, they sat in the chapter house or  the  refectory  of the abbot of  Westminster;  and  they continued  their  sittings in that place after  their  final separation(3).  The House of Lords always was and  continues to  be today a Court of Judicature.  According to  May,  the most  distinguishing  characteristic of the Lords  is  their judicature, of which they exercise several kinds.  They have the  power  to sit as a court during  prorogation  and  dis- solution;  a Court of Appeal is constituted by the House  of Lords  and  final appellate jurisdiction vests  in  them(4). May has also referred to the power claimed by the Parliament in respect of acts of attainder and impeachments, and he has described  how this privilege was exercised by the House  of Lords and the House of Commons(1).  "In impeachments",  says May, "the Commons are but accusers and advocates; while  the Lords alone are judges of the crime.  On the other hand,  in passing bills of attainder, the Commons commit themselves by no  accusation,  nor are their powers directed  against  the offender;  but  they are judges of equal  jurisdiction,  and with the same responsibility, as the Lords; and the  accused can  only be condemned by the united judgment of the  Crown, the Lords, and the Commons(6)." This aspect of the privilege is one of the typical features of the historical development of the constitutional law in England.  It would thus be seen that  a  part of the jurisdiction claimed by  the  House  of Lords  as  well as the House of Commons  can  be  distinctly traced  to  the historical origin of  the  modem  Parliament which, as we have just indicated, consisted in the  judicial functions of Parliament. (1) May’s Parliamentary Practice, pp. 3-4.(2) Ibid., pp.8-9. (3) lbid., p.12.    (4) Ibid., pp. 38-39. (5) Ibid., p. 40.   (6) Ibid., p. 41. 465 The  differences  in  punishments  inflicted  by  Lords  and Commons  is  also  of some  significance  in  this  context. "While  both Houses agree in regarding the same offences  as breaches  of  privilege", says May,  "in  several  important particulars  there  is  a  difference  in  their  modes   of punishment.  The Lords have claimed to be a court of  record and,  as  such, not only to imprison, but to  impose  fines. They  also imprison for a fixed time, and order security  to be  given  for  good conduct; and their  customary  form  of commitment  is  by attachment.  The Commons,  on  the  other hand,  commit for no specified period, and during  the  last two  centuries  have  not imposed fines.  There  can  be  no question that the House of Lords, in its judicial  capacity, is  a court of record; but, according to Lord Kenyon,  ’when exercising  a  legislative capacity, it is not  a  court  of record’.   Whether the House of Commons be, in law, a  court of  record,  it would be difficult to  determine;  for  this claiming,   once  firmly  maintained,  has   latterly   been virtually     abandoned,    although    never     distinctly renounced"(1).   This last comment made by May would  be  of decisive  significance when we later have occasion  to  deal with the question as to whether the privilege claimed by Mr. Seervai that a general warrant cannot be examined by  courts is  a  part  of the privilege itself, or is  the  result  of convention  established between the courts and the House  of



Commons. Let  us  then  briefly indicate, in the words  of  May,  the general features of the power of commitment possessed by the House of Commons.  "The power of commitment", says May,  "is truly described as the keystone of parliamentary privilege". As  was  said in the Commons in 1593, "This  court  for  its dignity  and  highness hath privilege, as all  other  courts have.   And,  as it is above all other courts,  so  it  hath privilege  above all other courts; and as it hath  privilege and   jurisdiction  too,  so  hath  it  also  Coercion   and Compulsion;  otherwise  the  jurisdiction is  nothing  in  a court, if it hath no Coercion" (2).  The comment made by May on this power of commitment is very instructive.  The origin of this power which is judicial in its nature is to be found naturally  in  the  medieval  conception  of  Parliament  as primarily a court of justice-the "High Court of Parliament". As  a  court  functioning judicially,  the  House  of  Lords undoubtedly possessed the power of commitment by at least as good a title as any court of Westminster Hall. But the Commons, "new-comers to Parliament" within the  time of judicial memory, could not claim the power on grounds (1) May’s Parliamentary Practice, p. 90.      (2) Ibid.,  p. 90. 466 of  immemorial antiquity.  As late as 1399 they had  record& their protest that they were not sharers in the judgments of Parliament,  but  only petitioners.  The possession  of  the right by the Commons was challenged on this ground, and  was defended  by  arguments which  confounded  legislative  with judicial  jurisdiction.   It  was  probably  owing  to   the medieval inability to conceive of a constitutional authority otherwise than as in some sense a court of justice that  the Commons  succeeded  in  asserting  their  right  to   commit offenders  on the same terms as the Lords(1).  That  is  the genesis of the privilege claimed by the House of Commons  in the matter of commitment. As the history of England shows, the House of Commons had to engage  in a fierce struggle in order to arrest  recognition for  this  right from the King, the House of Lords,  and  in many cases the people themselves.  This power was distinctly admitted  by  the Lords at the conference  between  the  two Houses,  in the case of Ashby v. White(2), in 1704,  and  it has  been repeatedly recognized by courts of law.   In  fact this  power  is also virtually admitted by  the  statute,  I James  1, c. 13, s. 3, which provides that  nothing  therein shall  "extend to the diminishing of any punishment  to,  be hereafter,  by  censure in Parliament,  inflicted  upon  any person(3)." Now we will refer to the statement of the law in May’s  book on  the vexed question about the jurisdiction of  courts  of law  in matters of privilege.  May says, it would require  a separate  treatise to deal adequately with a  subject  which raises    incidentally   such   important    questions    of constitutional  law.  According to him, in  cases  affecting parliamentary  privilege the tracing of a  boundary  between the competence of the courts and the exclusive  jurisdiction of  either House is a difficult question  of  constitutional law  which  has provided many puzzling  cases,  particularly from  the seventeenth to the nineteenth centuries.   It  has been  common ground between the Houses and the  courts  that privilege  depends  on  the  "known  laws  and  customs   of Parliament", and not on the ipse dixit of either House.  The question in dispute was whether the law of Parliament was  a "particular"  law or part of the common law in its wide  and extended  sense,  and in the former case whether  it  was  a



superior law which overrode the common law.  Arising out  of this question another item of controversy arose between  the courts  and the Parliament and that was whether a matter  of privilege should be judged solely (1) May’s Parliamentary Practice, p. 91. (2) L.J. (1701-05),714. (3) May’s Parliamentary Practice, p. 92. 467 by  the  House which it concerned, even when the  rights  of third parties were involved, or whether it might in  certain cases be decided in the courts, and, if so, in what sort  of cases (1).  The points of view adopted by the Parliament and the  courts  appeared  to  be  irreconcilable.   The  courts claimed  the  right to decide or themselves when  it  became necessary  to  do  so in proceedings  brought  before  them, questions  in relation to the existence or extent  of  these privileges, whereas both the Houses claimed to be  exclusive judges of their own privileges.  Ultimately, the two  points of   view  were  reconciled  in  practice  and  a   solution acceptable to both he parties was  gradually evolved.   This solution  which is marked but by the courts is to insist  on their  right  in  principle  to  decide  ill  questions   of privilege  arising in litigation before them,  with  certain large  exceptions in favour of  parliamentary  jurisdiction. Two  of these are the exclusive jurisdiction of  each  House over  its own internal proceedings, and the right of  either House  to  commit and punish for contempt.   May  adds  that while  it cannot be claimed that either House  has  formally acquiesced in this assumption of jurisdiction by the courts, the absence of any conflict for over a century may  indicate a  certain measure of tacit acceptance(2).  In other  words, ’the question about the existence and extent of privilege is generally treated as justiciable in courts where it  becomes relevant for adjudication of any dispute brought before  the courts. In  regard to punishment for contempt, a similar process  of give  and  take  by convention has  been  in  operation  and gradually  a large area of agreement has, in practice,  been evolved.   Theoretically, the House of Commons  claims  that its  admitted right to adjudicate on breaches  of  privilege implies  in theory the right to determine the existence  and extent of the privileges themselves.  It has never expressly abandoned this claim.  On the other hand, the courts  regard the privileges of Parliament as part of the law of the land, of  which  they  are  bound to take  judicial  notice   They consider  it their duty to decide any question of  privilege arising directly or indirectly in a case which falls  within their jurisdiction, and to decide it according to their  own interpretation  of  the law(3).  Naturally, as a  result  of this dualism the decisions of the courts are not accepted as binding  by  the  House In matters  of  privilege,  nor  the decision    of  the House by the courts; and as  May  points out,  on  the  theoretical plane, the  old  dualism  remains unresolved.  In practice, however, "there is (1) May’s Parliamentary Practice, p. 150. (2) Ibid., p. 152. (3)  Ibid., p. 172. 468 much  more  agreement  on  the  nature  and  principles   of privilege than the deadlock on the question of  jurisdiction would  lead one to expect" and May describes  these  general conclusions in the following words :               (1)   It seems to be recognized that, for  the               purpose   of  adjudicating  on  questions   of               privilege, neither House is by itself entitled



             to  claim  the  supremacy  over  the  ordinary               courts  of  justice which was enjoyed  by  the               undivided  High  Court  of  Parliament.    The               supremacy  of  Parliament, consisting  of  the               King  and  the two Houses,  is  a  legislative               supremacy  which  has nothing to do  with  the               privilege jurisdiction of either House  acting               singly.               (2)   It  is  admitted by  both  Houses  that,               since  neither House can by itself add to  the               law, neither House can by its own  declaration               create  a  new privilege.  This  implies  that               privilege  is objective and its extent  ascer-               tainable, and reinforces the doctrine that  it               is known by the courts. On the other hand, the               courts admit               (3)   That the control of each House over  its               internal proceedings is absolute and cannot be               interfered with by the courts.               (4)   That a committal for contempt by  either               House  is  in practice  within  its  exclusive               jurisdiction, since the facts constituting the               alleged  contempt  need not be stated  on  the               warrant of committal(.). It is a tribute to the remarkable English genius for finding pragmatic  ad hoc solutions to problems which appear  to  be irreconcilable  by adopting the conventional method of  give and take.  The result of this process has been, in the words of  May,  that the House of Commons has not  for  a  hundred years  refused to submit its privileges to the  decision  of the  courts, and so, it may be said to have given  practical recognition  to  the  jurisdiction of the  courts  over  the existence and extent of its privileges.  On the other  hand, the  courts  have always, at any rate in  the  last  resort, refused to interfere in the application by the House of  any of  its recognized privileges(1).  That broadly stated,  is, the  position of powers and privileges claimed by the  House of Commons. (1)  May’s Parliamentary Practice, p. 173. (2) Ibid., pp. 173-74. 469 What  now remains to consider is the position in  regard  to the special privilege with which we are concerned, viz., the privilege  to  determine  whether  its  contempt  has   been committed and to punish for such contempt, and to claim that a  general  order  or warrant sentencing a  person  for  its contempt is not examinable in a court of law.  Is -this last right  claimed by Mr. Seervai on behalf of the House a  part of  the privilege vesting in the House of Commons, or is  it the  result of an agreement evolved between the  courts  and the House by convention, or by the doctrine of comity, or as a matter of legal presumption ? It is to this question  that we must now turn. Even  while  dealing  with  this  narrow  question,  it   is necessary,  we  think,  to refer  broadly  to  the  somewhat tortuous  course through which the law on this question  has been  gradually  evolved by judicial decisions  in  England. Just  as  in  dealing with the question  of  privileges,  on principle  we have mainly based ourselves on the  statements of May, so in dealing with the evolution of the law on  this question,  we will mainly rely on the decisions  themselves. Both  Mr.  Seervai and Mr. Setalvad have referred  us  to  a large  number  of  English  decisions  while  urging   their respective  contentions before us and in fairness, we  think we  ought  to mention some of the  important  representative



decisions to indicate how this doctrine of privilege and its accompaniments has been gradual‘y developed in England. For our purpose, the story can be said to begin in the  year 1677  when  the Court of King’s Bench had occasion  to  deal with  a  part of this problem in The Earl  of  Shaftesbury’s case(1);  it develops from time to time when some aspect  or the  other of this problem of parliamentary privileges  came before  the courts at Westminster until we reach  1884  when the case of Bradlaugh v. Gossett(1) was decided. Let  us then begin with Shaftesbury’s case.  In  that  case, the Earl of Shaftesbury was committed to the Tower of London under  an  order of the House of Lords  which  directed  the constable of the Tower of London to receive him and keep him in  safe custody during the pleasure of the House "for  high contempts committed against this House; and this shall be  a sufficient warrant on that behalf." The Earl of  Shaftesbury took  the matter before the Court of Kings’ Bench on a  writ of  habeas corpus and urged that the committal of  the  Earl was  unjustified in law, because the general  allegation  of "high contempts" was (1)  86  E.R. 792.                             (2)  L.R.  12 Q.B.D. 721. 470 too uncertain for the Court to sustain.  It was also  argued or his behalf that in respect of the jurisdiction  exercised by  the Lords the boundaries of the said  jurisdiction  were limited by common law and its exercise was examinable in the courts.   This  plea was unanimously rejected by  the  Court which held that the Court could not question the judgment of the House of Lords as a superior court.  Rainford C.J.  held "that  this  Court hath no jurisdiction of  the  cause,  and therefore,  the  form of the return: is  not  considerable". According  to  the  learned  Chief  Justice,  the   impugned commitment  was  in execution of the judgment given  by  the Lords  for  the  contempt; and therefore,  if  the  Earl  be bailed, he would be delivered out of execution; because  for a  contempt in facie curiae, there is no other judgment  for execution.   This  case, therefore, accepted  the  principle that the House of Lords had jurisdiction to issue a  warrant for  contempt  and that since the commitment of  the  person thus committed was in execution of the judgment given by the House  of Lords, the general warrant issued in  that  behalf was not examinable by the King’s Bench Division. Five  years thereafter, Jay moved the King’s Bench  Division for  release  from  arrest and  brought  an  action  against Topham,  the serjeant at Arms, for arresting  and  detaining him.   Topham pleaded to the jurisdiction of the court,  but the court rejected his plea and judgment was given in favour of  Jay.   Seven  years thereafter,  the  House  of  Commons declared that the said judgment was "illegal, a violation of the  privileges of Parliament, and pernicious to the  rights of  Parliament".   Acting on this view the two  Judges  were called  at the Bar of the House and asked to  explain  their conduct.   Appearing before the Bar, Sir  Francis  Pemberton mentioned to the House that he had been out of the Court for more  than six years and did not exactly remember  what  had happened  in  the case.  He expressed surprise that  he  was called  to  the Bar without giving him enough notice  as  to what was the charge against him.  He also urged that if  the defendant  should plead he did arrest him by the command  of this House, and should plead that to the jurisdiction of the Court of King’s Bench, he would satisfy the House that  such a plea ought to be overruled.  That is why he asked for time to  look into the records of the court to make  his  further pleas.   Eventually,  the  two Judges  were  ordered  to  be



imprisoned(1).   This incident has been severely  criticised by  all prominent writers on constitutional law  in  England and it would be fairly accurate to state (1)  12 State Tr. 822. 471 that it has been regarded as an unfortunate and  regrettable episode  in  the  history of the House of  Commons.   It  is somewhat ironical that what happened as long ago as 1689  is attempted to be done by the House in the present proceedings 14  years after this country has been used to  a  democratic way of life under a written Constitution Before we part with this case, however, it would be material to  indicate  briefly how succeeding Judges have  looked  at this  conduct  of  the House of  Commons.   In  Sir  Francis Burdett v. Abbot(1), Lord Ellenborough C.J., observed :  "It is surprising upon looking at the record in that case how  a Judge  should have been questioned, and committed to  prison by the House of Commons, for having given a judgment,  which no Judge whoever sat in this place could differ from" and he added  that the AttorneyGeneral who had appeared in  Burdett had  conceded  that  probably the matter  was  not  so  well understood   at  that  time,  whereupon  Lord   Ellenborough observed that it was after the Revolution, which makes  such a  commitment  for such a cause a little  alarming;  and  he pointed  out  that it must be recollected  that  Lord  C.J., Pemberton  stood  under the disadvantage at that  period  of having  been one of the Judges who had sat on the  trial  of Lord Russel, and therefore did not stand high in  popularity after the Revolution, when the judgment and attainder in his case had been recently reversed by Parliament. Similarly,  in  Stockdale v. Hansard(2), referring  to  this incident,  Lord  Denman  C.J. declared :  "Our  respect  and gratitude to the Convention Parliament ought not to blind us to the fact that this sentence of imprisonment was as unjust and  tyrannical as any of those acts of arbitrary power  for which they deprived King James of his Crown". The  next  case to which reference may be made is  Ashby  v. White(").   In  that case, the plaintiff was  a  burgess  of Aylesbuy,  and as such entitled to vote for two  Members  of Parliament.   On  the day of the election he  requested  the defendants, who were the Returning Officers of the  borough, to receive his vote.  This the defendants refused to do, and the  plaintiff  was  not allowed to vote.  That  led  to  an action  against the Returning Officers for fraudulently  and maliciously refusing his vote, and it ended in an award  for damages by the jury.  In an action before the Queen’s  Bench in arrest of judgment, it was urged that (1)  104 E.R. 501, 541.      (3) (1703-04) 92 E.R. 126. (2) 112 E.R. 11 12, 1163. 472 the claim made by the plaintiff was not maintainable.   This action  succeeded  according to the majority  decision  Holt C.J., dissenting.  Justice Gould held that he was of opinion that  the  action  brought against the  defendants  was  not maintainable, and in support of his conclusion he gave  four reasons;  first, because the defendants are judges  of  the, and  act  herein  as  judges;  secondly,  because  it  is  a Parliamentary  matter,  with which we have  nothing  to  do; thirdly, the plaintiff’s privilege of voting is not a matter of property or profit, so that the hindrance of it is merely damnum  sine injuria; and fourthly, it relates to  the  pub- lick, and is a popular offence(1). Holt C.J., however, dissented from the majority opinion  and expressed his views in somewhat strong language.   Referring to  the opinion expressed by his colleagues that  the  Court



cannot  judge of the matter because it was  a  Parliamentary thing,  he  exclaimed : "O  by all means be very  tender  of that.    Besides,  it  is  intricate,  and  there   may   be contrariety of opinions.  But this matter can never come  in question  in Parliament; for it is agreed that  the  persons for  whom  the  plaintiff voted were elected;  so  that  the action  is  brought for being deprived of his  vote."(1)  He conceded that the court ought not to encroach or enlarge its jurisdiction;  but he thought that the court must  determine on  a charter granted by the King, or on a matter of  custom or  prescription,  when it comes before  the  court  without encroaching  on the Parliament.  His conclusion was that  if it  be a matter with the jurisdiction of the Court, "we  are bound  by  our oaths to judge of it"(3 )  .  This  decision, however, has nothing to do with the question of contempt. The  next case which deals with the question of contempt  of the House of Commons, is R. v. Paty(4).  In that case,  Paty and four others were committed to Newgate by warrant  issued by  the  Speaker of the House.  The warrant was  a  speaking warrant  and showed that the persons detained had  committed contempt of the jurisdiction of the House and open breach of its  known  privileges.  The validity of  this  warrant  was challenged  by  the  said  persons on  the  ground  that  it suffered  from many infirmities.  The majority  decision  in the  case, however, was that the warrant was not  reversible for  the  alleged  infirmities and that  the  court  had  no jurisdiction  to deal with the matter, because the House  of Commons  were  the proper judges of  their  own  privileges. Justice Powys referred to the earlier decision in The (1)  92 E. R. 126, 129. (3)  Ibid., 138. (2)  Ibid., 137. (4)  (1704) 92 E.R. 232. 473 Earl  of Shaftesbury’s case(1) and observed all  commitments for  contempts, even those by this Court, should come to  be scanned,  they would not hold water.  Our warrants  here  in such  cases are short, as for a contempt, or for a  contempt in  such  a  cause.   So in  Chancery  the  commitments  for contempts  are for a contempt in not fully answering,  etc., and would not this commitment be sufficient ?" He held  that "the House of Commons is a great Court, and all things  done by  them are to be intended to have been rite acta, and  the matter  need not be so specially recited in their  warrants; by the same reason as we commit people by a rule of Court of two lines, and such commitments are held good, because it is to be intended, that we understand what we do."(1) It  would thus  be  seen  that  the majority  decision  in  that  case proceeded on the basis that the House of Commons was a great Court  and like the superior courts at Westminster,  it  was entitled  to  issue a short general warrant  for  committing persons  for  its contempt.  If such a general  warrant  was issued and it was challenged before the courts at  Westmins- ter,  it  should  be treated with the  same  respect  as  is accorded to similar warrants issued by the superior  courts. Holt C.J., however, was not persuaded to take the view  that the  impugned  imprisonment  was such  "as  the  freeman  of England ought to be bound by"; and he added, "for that this, which was only doing a legal act, could not be made  illegal by the vote of the House of Commons; for that neither  House of Parliament, nor both Houses jointly, could dispose of the liberty or property of the subject; for to this purpose  the Queen must join : and that it was in the necessity of  their several  concurrences to such acts, that the great  security of  the liberty of the subject consisted."’ (p. 236).   This



case,  therefore,  seems  to  recognise  that  it  would  be inappropriate  for the courts at Westminster to examine  the validity  of  a  general  warrant issued  by  the  House  of Commons. That  takes us to the decision in Murray’s case(3)  .  1750. Murray  was committed to prison by the House of Commons  for refusal  to kneel, when brought up to the bar of the  House. It  was declared by the House that the refusal of Murray  to kneel was "a most dangerous contempt of privilege".  When  a petition  for habeas corpus was moved before the  Court,  it was  rejected on the ground that "the House of  Commons  was undoubtedly a High Court and that it was agreed on all hands that  they have power to judge of their own privileges,  and it need not appear (1)  86 E.R. 792.         (3) 95 E.R. 629. (2) 92 E.R. 232, 234. 474 to us what the contempt was, for if it did appear, we  could not  judge thereof." That is the view expressed  by  Justice Wright.   The  learned Judge also added that  the  House  of Commons  was superior to his own Court, and that  his  Court could not admit to bail a person committed for a contempt in any other Court in Westminster Hall.  Dennison J. agreed and expressed his opinion that the Court at Westminster Hall was inferior to the House of Commons with respect to judging  of their  privileges  and contempts against  them.   This  case again  proceeds on the basis that the House of Commons is  a superior court, and as such its warrants cannot be examined. The next relevant case in point of time is Brass  Crosby(1). Brass  Crosby was Lord Mayor of London and a Member  of  the House of Commons, and as Magistrate he had admitted to  bail a  person who had been committed to prison under  a  warrant issued  by the Speaker of the House under the orders of  the House itself.  The House held that Lord Mayor was guilty  of breach  of  privilege  of  the House, and  as  such  he  was committed  to  the Tower of London.  The  validity  of  this order  was  challenged  by  Brass  Crosby.   The  challenge, however, failed on the ground that when the House of Commons adjudges anything to be a contempt or a breach of privilege, their adjudication is a conviction, and their commitment  in consequence is in execution.  As Lord C.J. de Grey observed, "no  court  can  discharge  or bail  a  person  that  is  in execution  by the judgment of any other court," and  so,  he came  to  the conclusion that "the House of  Commons  having authority to commit, and that commitment being an execution, the question is what can this Court do ? He gave the  answer with the remark that "it can do nothing when a person is  in execution,  by  the judgment of a court having  a  competent jurisdiction;  in  such case, this Court is not a  court  of appeal."(2)   Concurring  with  this  view,  Blackstone   J. observed that the House of Commons is a Supreme Court and he was  impressed by the argument that "it would  occasion  the utmost  confusion, if every Court of this Hall  should  have power to examine the commitments of the other Courts of  the Hall, for contempts; so that the judgment and commitment  of each  respective Court, as to contempts, must be final,  and without  control."(1)  It  would  thus  be  seen  that  this decision proceeded on the same ground which had by then been recognised  that the House of Commons was a superior  ,court and as such had jurisdiction to punish persons adjudged (1) 95 E.R. 1005.        (3) Ibld., 1014. (2) Ibid., 1011. 475      by  it  to be guilty of contempt.   A  general  warrant issued  by  the  House in respect of  such  a  contempt  was



treated as of the same status as a similar warrant issued by other superior courts at Westminster Hall. Before parting with this case, we may incidentally advert to the comment made by Lord Denman C.J. on this decision.  Said Lord Denman : "We know now, as a matter of history, that the House  of Commons was at that time engaged, in  unison  with the Crown, in assailing the just rights of the people.   Yet that   learned   Judge  [Blackstone   J.]   proclaimed   his unqualified resolution to uphold the House of Commons,  even though it should have abused its power(1)." The  next  important decision on this topic is  Sir  Francis Burdett’s  case(1).   This case arose out of  an  action  of trespass  which  Sir Francis Burdett commenced  against  the Speaker  of the House of Commons for breaking  and  entering his  house,  and  imprisoning him in the  Tower.   The  plea raised in defence was that the conduct of the defendant  was justified  by an order of the House for Burdett’s  committal after the House had adjudicated that he had been guilty of a contempt  of  the  House  by  publishing  a  libellous   and scandalous   paper  reflecting  on  the  just   rights   and privileges  of the House.  The case was  elaborately  argued and  as  May  points out : "This case provides  one  of  the principal  authorities  for  the  Commons’  power  (as  Lord Shaftesbury’s  case  does  for the  Lords’)  to  commit  for contempt(,’)."  The  warrant  in this case  was  a  speaking warrant  and the contempt was the contempt of the  House  of Commons.   The  plea made by Burdett was rejected,  but  the reasons given for rejecting the plea are significant.   Lord Ellenborough C.J. has considered the question  exhaustively. He  has  observed that upon the authority of  precedents  in Parliament,  upon the recognition by statute, and  upon  the continued recognition of all Judges, he should have  thought that  there was a quantity of authority enough to  have  put the question to rest, that is, whether the House of  Commons has  the  power  of  commitment  for  a  contempt  of  their privileges   ?  The  House  undoubtedly  had   that   power. Proceeding  to  deal  with the matter on  that  basis,  Lord Ellenborough  held  that the House was competent  to  decide both as to the fact and the effect of the publication  which was held by it to be libellous, and he added that by analogy to  the  judgment of a Court of law, (and the  judgments  of either House of Parliament cannot with propriety (1) Stockdale v. Hansard, 112 E.R. 1112,1158. (2) 104 E.R. 501. (3)  May’s Parliamentary Practice, p. 159. 476 be  put upon a footing less authoritative than those of  the ordinary  Courts  of Law), the House must be  considered  as having  decided  both,  as  far  as  respects  any  question thereupon which may arise in other Courts. The next question which Lord Ellenborough considered was  if the warrant itself disclosed a sufficient ground for commit- ment,  and an order to the officers of the House to  execute it,  then the justification for the persons acting under  it is  made out, " unless any justifiable means appear to  have been  afterwards used to carry the warrant into  execution." It  appears that in that case it was urged before the  Court that if the warrant issued appeared to be on the face of  it unjustified,  illegal  or extravagant, the  Court  would  be entitled  to  entertain the petition for a  writ  of  habeas corpus   and   grant  relief  to   the   petitioner.   ,Lord Ellenborough  dealt  with this argument  and  expressed  the opinion  that if a commitment appeared to be for a  contempt of  the House of Commons generally, he would neither in  the case of that Court, nor of any other of the Superior Courts,



inquire  further; but if it did not profess to commit for  a contempt, but for some matter appearing on the return, which could  by  no  reasonable  intendment  be  considered  as  a contempt of the Court committing, but a ground of commitment palpably  and evidently arbitrary, unjust, and  contrary  to every  principle  of positive law, or national  justice,  in such  a  case the Court must look at it and act upon  it  as justice  may require from whatever Court it may  profess  to have  proceeded  (pp. 558-60).  It is thus clear  that  even while recognising that it would be inappropriate or improper to examine a general warrant issued by the House of Commons, Lord  Ellenborough made it clear that this convention  would be  subject to the exception that wherever it appeared  from the  return  or otherwise that the commitment  was  palpably unjust,  the court would not be powerless to give relief  to the party. This  case went in appeal before the Court of Exchequer  and the  decision under appeal was confirmed.  It  appears  that before  the  appellate decision was pronounced,  Lord  Eldon proposed  to  their  Lordships  that  the  counsel  for  the defendants  should  not  be heard until  they  received  the advice  of the Judges on the question which  he  formulated. This question was : "Whether, if the Court of Common  Pleas, having  adjudged  an  act to be a  contempt  of  Court,  had committed  for  the contempt under a warrant,  stating  such adjudication generally without the particular circumstances, and the matter were brought before the Court of King’s 477 Bench,  by  return to a writ of habeas  corpus,  the  return setting  forth  the warrant, stating  such  adjudication  of contempt generally; whether in that case the Court of King’s Bench  would discharge the prisoner, because the  particular facts  and circumstances, out of which the  contempt  arose, were not set forth in the warrant." After this question  was handed to the Judges and they consulted among themselves for a  few  minutes, Lord Ch.  Baron  Richards  delivered  their unanimous  opinion that in such a case the Court  of  King’s Bench would not liberate.(-’) This opinion was accepted  and Burdett’s  appeal  was  dismissed  without  calling  on  the respondent.   In this case, Lord Erskine observed that  "the House  of Commons, whether a Court or not, must  like  every other  tribunal,  have  the power  to  protect  itself  from obstruction  and  insult, and to maintain  its  dignity  and character.  If the dignity of the law is not sustained,  its sun is set, never to be lighted up again.  So much I thought it necessary to say, feeling strongly for the dignity of the law; and have only to add that I fully concur in the opinion delivered  by the Judges." This case seems to establish  the position  that a warrant issued by the House of Commons  was treated as a warrant issued by a superior Court and as such, the courts in Westminster Hall could not go behind it. In  1836-37  began a series of cases in  which  John  Joseph Stockdale  was concerned.  This series of  cases  ultimately led  to  the  arrest and imprisonment  of  the  Sheriffs  of Middlesex.  It appears that in one of the reports  published by the inspectors of prisons under the order of the House of Commons  Stockdale was described in a libellous manner,  and so,  he brought an action against Messrs.  Hansard in  1836. In  defence,  Hansard pleaded privilege and urged  that  the reports  in question had been published under the orders  of the  House.   The  Court held that the order  of  the  House supplied no defence to the action.  Even so, the verdict  of the  jury went against Stockdale on a plea of  justification on  the  merits, the jury having apparently  held  that  the alleged libellous description of Stockdale was accurate.  At



the time when this case was tried, Lord Chief Justice Denman made   certain  observations  which  were  adverse  to   the privileges  of  the House claimed by Hansard.   He  observed "that  the  fact  of the House of  Commons  having  directed Messrs.  Hansard to publish all their parliamentary  reports is  no  justification for them, or for any  book-seller  who publishes a parliamentary report containing a libel  against any man(2)." Incidentally, it may be added that as a (1) 3 E.R. 1289,1301. (2) May’s Parliamentary Practice, p. 159. 478 result of this controversy, the Parliament ultimately passed the  Parliamentary  Papers Act, 1840, which  overruled  this view. Not  deterred  by  the adverse verdict of the  jury  on  the merits, Stockdale began another action.  Before this  action was commenced, the House of Commons had passed a  resolution in  1837  reaffirming  its privileges,  and  expressing  its deliberate view that for any court to assume to decide  upon matters of privilege inconsistent with the determination  of either  House  of  Parliament was contrary  to  the  law  of Parliament.  Nevertheless, in this second action brought  by Stockdale,  the  House  decided  to  put  in  a  defence  of privilege.   This  defence  was rejected and  a  decree  was passed for payment of damages and costs.  Even so, the House of  Commons did not act upon its resolutions  and  refrained from  punishing Stockdale and his legal advisers for  having taken the matter to a court of law; instead, it decided that the   damages   and  costs  be  paid   under   the   special circumstances of the case. Encouraged  by this result Stockdale brought a third  action for  another  publication  of the said  report.   This  time Messrs.  Hansard did not plead; in consequence, the judgment went against them in default, and the damages were  assessed by  a  jury,  in the Sheriff’s Court,  at  pound  600.   The Sheriffs  of  Middlesex  levied for that  amount,  but  were served  with  the copies of the resolutions  passed  by  the House; and that naturally made them cautious in the  matter. They,  therefore,  delayed  the  payment  of  the  money  to Stockdale as long as possible, but ultimately the money  was paid  by  them to Stockdale under an  attachment.   At  this stage, the House of Commons entered the arena and  committed Stockdale  to the custody of the Serjeant.  It  called  upon the Sheriffs to refund the money and on their refusal,  they were  also committed for contempt.  That led to  proceedings taken by the Sheriffs for their release on a writ of  habeas corpus.  These proceedings, however, failed and that is  the effect  of  the  decision  in the Case  of  the  Sheriff  of Middlesex(1). Naturally,  Mr.  Seervai has laid considerable  emphasis  on this decision.  He has pointedly drawn our attention to  the fact  that the Court found itself powerless to  protect  the Sheriffs of Middlesex against their imprisonment, though the conduct  which  gave rise to contempt of the House  was,  in terms,  the  result of an order passed by the  Court.   Lord Denman  C.J.,  who  had himself  elaborately  discussed  the question and disputed the validity of the claim made by  the House of Commons in regard to its privi- (1)  113 E.R. 419.                             479 leges in the case of Stockdale v. Hansard(1), was a party to this decision.  He began his judgment by declaring that  his earlier  judgment  delivered  in the case  of  Stockdale  v. Hansard(1)  was correct in all respects.  Even so, the  plea raised  by  the Sheriffs had to be  answered  against  them,



because  their commitment was sustained by a legal  warrant. Lord  Denman  then examined the three grounds on  which  the validity  of  the warrant was impeached and  he  found  that there  was no substance in those pleas.  The  learned  Chief Justice  considered  the previous decisions bearing  on  the point and observed that the test prescribed by Lord Eldon in the  case  of Burdett v. Abbot (2) was  relevant;  and  this test,  as we have already seen, proceeds on  the  assumption that like the general warrants for commitment issued by  the superior courts, the general warrants issued by the House of Commons on the ground of contempt should not be examined  in proceedings  for  habeas corpus.  Littledale  J.  concurring with,  Lord Denman C.J. said : "if the warant  declares  the grounds  of  adjudication, this Court, in many  cases,  will examine into their validity; but, if it does not, we  cannot go  into  such an inquiry.  Here we must  suppose  that  the House adjudicated with sufficient reason; and they were  the proper  judges".  Justice Williams, who also concurred  with Lord  Denman,  thought  it necessary to add’  that  "if  the return,  in  a case like this, shewed a frivolous  cause  of commitment,  as  for wearing a particular  dress,  I  should agree  in  the  opinion expressed by  Lord  Ellenborough  in Burdett  v.  Abbot(1),  where  he  distinguishes  between  a commitment  stating a contempt generally, and one  appearing by  the  return to be made on grounds  palpably  unjust  and absurd.   Coleridge J. preferred’ to put his  conclusion  on the  ground  that "[the right of the House  of  Commons]  to adjudicate in this general form in cases of contempt is  not -founded  on privilege, but rests upon the same  grounds  on which  this Court or the Court of Common Pleas might  commit for  a contempt without stating a cause in the  commitment." It is remarkable that Justice Coleridge thought it necessary to make it clear that the right to require a general warrant to  be respected’ when its validity is challenged in  habeas corpus proceedings, is now-,a part of the privilege  itself; it  is  the result of a convention by  which  such  warrants issued  by superior courts of record are usually  respected. This  decision was pronounced in 1840, and’ can be  said  to constitute a landmark in the development of the law on  this topic.  Thus, this decision also does not assist Mr. Seervai in contending that it is a part of the privilege of the" (1) 11 2 E.R. 11 12.             (2) 104 E.R. 501. 480 House to insist that a general warrant issued by it must  be treated  as  conclusive and is not examinable in  courts  of law. The  next case is Howard v. Sir William Gosset(1).  In  that case, by a majority decision a warrant issued by the Speaker of  the  House against Howard was held to be  invalid  as  a result  of  certain infirmities discovered in  the  warrant. Williams J. alone dissented.  The warrant in this case was a general  warrant  and Williams J. held  that  the  technical objections raised against the validity of the warrant  could not  be  entertained, because a general warrant  -should  be treated  as  conclusive of the fact that the  party  against whom the warrant had been issued had been properly  adjudged to be guilty of contempt.  Since the judgment was pronounced in  favour of the plaintiff Howard, the matter was taken  in appeal, and the majority decision was reversed by the  Court of  Exchequer.   Parke B. considered the  several  arguments urged against the validity of the warrant and rejected them. The  general  ground  for  the  decision  of  the  Court  of Exchequer was expressed in these words : "We are clearly  of opinion that at least as much respect is to be shewn, and as much  authority to be attributed, to these mandates  of  the



House as to those of the highest Courts in the country; and, if the officers of the ordinary Courts are bound to obey the process  delivered to them, and are therefore  protected  by it, the officer of the House of Commons is as much bound and equally  protected.  The House of Commons is a part  of  the High  Court  of Parliament, which is  without  question  not merely a Superior but the Supreme Court in this country, and higher than the ordinary courts of law(1)". Thus,  the  result  of this decision is that  the  House  of Commons  being  part of the High Court of  Parliament  is  a superior Court and the general warrants issued by it  cannot be subjected to the close scrutiny, just as similar warrants issued  by  other superior courts of record are held  to  be exempt  from  such scrutiny.  It would be noticed  that  the Court of Exchequer has observed in this case that the  House of  Commons as a part of the High Court of Parliament, is  a Supreme  Court  in  this  country and  is  higher  than  the ordinary  courts  of  law; and  this  recalls  the  original judicial  character of the House of Parliament in its  early career and emphasises the fact that the House of Lords which is  a part of the House of Parliament still continues to  be the highest court of law in England. The  last case in this series to which we ought to refer  is the decision of the Queen’s Bench Division in Bradlaugh v. (1) 116 E.R. 139. (2) 1bid., at 174. 481 Gossett(1).   This  decision  is not  directly  relevant  or material  but since Mr. Seervai appeared to rely on  certain statements  of  law enunciated by Stephen J.,  we  think  it necessary  to  refer  to it very briefly.  In  the  case  of Bradlaugh  the Court was called upon to consider whether  an action could lie against the Serjeantat-Arms of the House of Commons  for excluding a member from the House in  obedience to a resolution of the House directing him to do so; and the answer  was in the negative.  It appears that  the  material resolution of the House of -Commons was challenged as  being contrary  to  law, and in fact the  Queen’s  Bench  Division proceeded   to  deal  with the claim  of  Bradlaugh  on  the footing  that  the said resolution may strictly  not  be  in accordance with the true effect of the relevant provision of the  law;  and yet it was held that the  matter  in  dispute related  to the internal management of the procedure of  the House of Commons, and so, the Court of Queen’s Bench had  no power  to interfere.  It was pressed before the  Court  that the resolution was plainly opposed to the relevant provision of  the  law.  In repelling the validity of  this  argument, Stephen  J.,  observed that in relation to  the  rights  and resolutions  concerning its internal management,  the  House stood  precisely in the same relation "as we the  judges  of this Court stand in to the laws which regulate the rights of which we are the guardians, and to the judgments which apply them to particular cases; that is to say, they are bound  by the most solemn obligations which can bind men to any course of  conduct whatever, to guide their conduct by the  law  as they  understand it".  The learned Judge then  proceeded  to add  "If  they  misunderstand it, or (I  apologize  for  the supposition)  wilfully disregard it, they resemble  mistaken or  unjust  judges;  but  in either case,  there  is  in  my judgment no appeal from their decision.  The law of the land gives  no  such  appeal; no precedent has  been  or  can  be produced  in  which any Court has ever interfered  with  the internal  affairs of either House of Parliament, though  the cases  are  no  doubt  numerous in  which  the  Courts  have declared  the  limits  of  their  powers  outside  of  their



respective  Houses".   That,  said the  learned  Judge,  was enough to justify the conclusion which he had arrived at(1). Mr.  Seervai’s  argument  was  that  though  the  resolution appeared to constitute an infringement of the  Parliamentary Oaths  Act,  the Court refused to give any relief  to  Brad- laugh,  and he suggested that a similar approach  should  be adopted in dealing with the present dispute before us.   The obvious answer to this contention is that we are not dealing with  any matter relating to the internal management of  the House in the L. R. 12  Q.B. D. 271. (2) lbid., 286. 482 present  proceedings.  We are dealing with the power of  the House  to punish citizens for contempt alleged to have  been committed  by them outside the fourwalls of the  House,  and that essentially raises different considerations. Having examined the relevant decisions bearing on the point, it  would, we think, not be inaccurate to observe  that  the right  claimed  by  the House of Commons  not  to  have  its general  warrants examined in habeas corpus proceedings  has been  based  more  on the consideration that  the  House  of Commons is in the position of a superior court of record and has the right like other superior courts of record to  issue a general warrant for commitment of persons found guilty  of contempt.   Like  the  general warrant  issued  by  superior courts  of record in respect of such contempt,  the  general warrants   issued  by  the  House  of  Commons  in   similar situations  should  be  similarly treated.  It  is  on  that ground  that  the general warrants issued by  the  House  of Commons  were treated beyond the scrutiny of the  courts  in habeas corpus proceedings.  In this connection, we ought  to add that even while recognising the validity of such general warrants, Judges have frequently observed that if they  were satisfied  upon the return that such general  warrants  were issued  for  frivolous or extravagant reasons, it  would  be open to them to examine their validity. Realizing  that the position disclosed by the  decisions  so far examined by us was not very favourable to the claim made by him that the conclusive character of the general warrants is  a  part of the privilege itself, Mr.  Seervai  has  very strongly relied on the decisions of the Privy Council  which seem to support his contention, and so, it is now  necessary to  turn-to  these decisions.  The first  decision  in  this series  is  in the case of the Speaker  of  the  Legislative Assembly of Victoria v. Hugh Glass(1).  In that case by  the Constitution  Act for the Colony of Victoria power had  been given to the Legislative Assembly of Victoria to commit by a general warrant for contempt and breach of privilege of that Assembly.  In exercise of that power, Glass was declared  by the House to have committed contempt and under the Speaker’s warrant,  which  was in general terms, he was  committed  to jail.  A habeas corpus petition was then moved on his behalf and  this petition was allowed by the Chief Justice  of  the Supreme  Court  in  the  Colony,  on  the  ground  that  the Constitution  Statute  and the Colonial Act did  not  confer upon  the Legislative Assembly the same  powers,  privileges and immunities as were possessed by 1)   1869-71] 3 L.R.P.C. 560. 483 Assembly,  the decision of the Supreme Court in  the  Colony was  reversed and it was held that the relevant Statute  and the Act gave to the Legislative Assembly the same powers and privileges  as the House of Commons had at the time  of  the passing of the said Acts.



Having  held  that  the Legislative Assembly  had  the  same powers as the House of Commons, the Privy Council  proceeded to  consider  the nature and extent of these  powers.   Lord Cairns  who  delivered  the judgment of  the  Privy  Council observed that "[b]eyond all doubt, one of the privileges-and one  of  the  most  important privileges  of  the  House  of Commons-is  the  privilege of committing for  contempt;  and incidental  to  that  privilege,  it  has  ....  been  well- established  in this country that the House of Commons  have the  right to be the judges themselves of what is  contempt, and  to commit for that contempt by a Warrant, stating  that the  commitment  is  for contempt of  the  House  generally, without  specifying what the character of the contempt  is.’ Then  he  considered  the merits of the  argument  that  the relevant Constitution Act did not confer on the  Legislative Assembly  of  Victoria  the incidental power  of  issuing  a general  warrant,  and  rejected  it.   "[Their   Lordships] consider",  said  Lord Cairns, "that there is  an  essential difference  between a privilege of committing  for  contempt such  as  would  be enjoyed by an  inferior  Court,  namely, privilege of first determining for itself what is  contempt, then  of  stating  the  character of  the  contempt  upon  a Warrant, and then of having that Warrant subjected to review by  some superior Tribunal, and running the  chance  whether that  superior  Tribunal  will agree or  disagree  with  the determination of the inferior Court, and the privilege of  a body  which determines for itself, without review,  what  is contempt,  and  acting upon the determination,  commits  for that  contempt,  without  specifying upon  the  Warrant  the character or the nature of the contempt." According to  Lord Cairns,  the  latter of the two privileges is a  higher  and more  important  one than the former, and he added  that  it would  be strange indeed if, under a power to  transfer  the whole of the privileges and powers of the House of  Commons, that  which  would  only  be a  part,  and  a  comparatively insignificant  part,  of  this  privilege  and  power   were transferred(1). In  other words, this decision shows that the Privy  Council took the view that the power to issue a general warrant  and to insist upon the conclusive character of the said  warrant it itself (1)  [1869-71] 3 L.R.P.C. 572, 573. 484 a part of the power and privilege of the House.  Even so, it is  significant  that the distinction is drawn  between  the power  and privilege of an inferior Court and the power  and privilege of a superior Court; and so, the conferment of the larger power is deemed to have been intended by the relevant provision  of  the  Constitution  Act,  because  the  status intended  to  be conferred on the  Legislative  Assembly  of Victoria  was that of the superior Court.  In  other  words, the Legislative Assembly was treated as a superior Court and the  power  and  privilege conferred on  it  was  deemed  to include both aspects of the power.  Incidentally, it may  be pointed out, with respect, that in considering the question, Lord  Cairns did not apparently think it necessary to  refer to the earlier English decisions in which the question about the extent of this power and its nature had been elaborately considered from time to time. The next Privy Council decision on which Mr. Seervai  relied is  Fielding  and Others v. Thomas(1).  In  that  case,  the question about the extent of the power conferred on the Nova Scotia  House of Assembly fell to be considered, and it  was held  by  the  Privy  Council that  the  said  Assembly  had statutory  power to adjudicate that wilful  disobedience  to



its  order to attend in reference to a libel  reflecting  on its  members is a breach of privilege and contempt,  and  to punish  that  breach  by  imprisonment.   For  our   present purpose,  it  is  not necessary to  refer  to  the  relevant provisions  of the statute on which the argument  proceeded, or the facts which gave rise to the action.  It is only  one observation  made  by Lord Halsbury which  must  be  quoted. Said Lord Halsbury in that case : "The authorities summed up in  Burdett  v. Abbot(1), and followed in the  Case  of  The Sheriff of Middlesex(1), establish beyond all possibility of controversy the right of the House of Commons of the  United Kingdom to protect itself against insult and violence by its own process without appealing to the ordinary courts of  law and  without  having its process interfered  with  by  those courts." (4 ) It is the last part of this observation  which lends some support to Mr. Seervai’s case.  All that we  need say  about this observation is that it purports to be  based on two earlier decisions which we have already examined, and that  it  is not easily reconcilable with  the  reservations made  by  some of the Judges who had occasion to  deal  with this  point in regard to their jurisdiction to  examine  the validity  of  the  imprisonment of  a  petitioner  where  it appeared that the warrant issued by the House (1) [1896] L.R.A.C. 600.                  (2) 104 E.R. 501. (3)   113   E.R.419.                            (4)   [18961 L.R.A.C. 600, 609. 485 of  Commons  appeared on a return made by the  House  to  be palpably  frivolous  or based on  extravagant  or  fantastic reasons. The last decision on which Mr. Seervai relies is the case of The  Queen v. Richards(1).  In that case, the High Court  of Australia  was called upon to construe the provisions of  s. 49 which are similar to the provisions of Art. 194(3) of our Constitution.  Section 49 reads thus :-               "The powers, privileges, and immunities of the               Senate  and of the House  of  Representatives,               and of the members and the committees of  each               House,  shall be such as are declared  by  the               Parliament, and until declared shall be  those               of  the  Commons House of  Parliament  of  the               United   Kingdom,  and  of  its  members   and               committees,   at  the  establishment  of   the               Commonwealth." One  of the points which fell to be considered was what  was the  nature  and  extent  of  the  powers,  privileges   and immunities  conferred  by s. 49 of the Constitution  on  the Senate  and the House of Representatives in Australia  ?  It appears that in that case Fitzpatrick and Browne were  taken into  custody  by Edward Richards in pursuance  of  warrants issued by the Speaker of the House of Representatives of the Parliament of the Commonwealth.  These warrants were general in character and they commanded Richards to receive the said two  persons  into his custody.  On June 10,  1955,  on  the application  of Fitzpatrick and Browne as  prosecutors,  the Supreme  Court of the Australian Capital Territory  (Simpson J.)  granted  an order nisi for two writs of  habeas  corpus directed  to  the said Edward Richards.  On June  15,  1955, Simpson  J.  acting under S. 13 of  the  Australian  Capital Territory Supreme Court Act directed that the case be argued before a Full Court of the High Court of Australia.  That is how the matter went before the said High Court. The High Court decided that S. 49 operated independently  of S.  50 and was not to be read down by  implications  derived from  the  general  structure of the  Constitution  and  the



separation   of   powers  thereunder.   Construing   S.   49 independently of S. 50, the High Court held that the powers, privileges  and  immunities of the House of Commons  at  the establishment  of  the Commonwealth were  conferred  on  the Parliament  and  since Parliament had  made  no  declaration within the meaning of the said section, it was necessary  to consider what the powers of the House of Commons were at the relevant time in order to determine the (1)  92 C.L.R. 157.                             486 question as to whether a general warrant could be issued  by Parliament or not, and the High Court held that under S.  49 the  Australian  Parliament  could claim  the  privilege  of judging what is contempt and of committing therefor.  It was also  held  that if the Speaker’s warrant is upon  its  face consistent with the breach of an acknowledged privilege,  it is  conclusive notwithstanding that the breach of  privilege is  stated in general terms.  In other words, this  decision undoubtedly supports Mr. Seervai’s contention that a general warrant  issued  by  the House in the present  case  is  not ,examinable by the High Court. In appreciating the effect of this decision it is  necessary to  point  out that so far as Australia was  concerned,  the point in issue had been already established  authoritatively by the decisions of the Privy Council in Dill v. Murphy  (1) as well as in Hugh Glass(2).  In fact, fact, Dixon C.J.  has expressly   referred   to  this  "aspect  of   the   matter. Naturally,  he has relied on the observations made  by  Lord Cairns in Hugh Glass and has followed the said  observations in  deciding  the  point raised before the  High  Court  ,of Australia.   That  is the basis which was adopted  by  Dixon C.J.  in  dealing with the question.   Having  adopted  this approach,  the learned Chief Justice thought it  unnecessary to discuss at length the situation in England, because  what the   situation  in  England  was,  had  been   conclusively determined for the guidance of the Australian courts by  the observations made by Lord Cairns in Hugh Glass(1).  Even so, he  has  observed  that  the  question  about  the   powers, privileges  and  immunities of the House of Commons  is  one which the courts of law in England have treated as a  matter for their decision, though he has added that "the courts  in England  arrived  at that position after a  long  course  of judicial   -decision   not   unaccompanied   by    political controversy.   The law in England was finally settled  about 1840." This observation obviously refers to the Case of  the Sheriff of Middlesex(").  To quote the words of the  learned Chief Justice : "Stated shortly, it is this : it is for  the courts  to  judge  of  the existence  in  either  House  -of Parliament   of  a  privilege,  but,  given   an   undoubted privilege, it is for the House to judge of the occasion  and of  the manner ,of its exercise.  The judgment of the  House is  expressed  by its resolution and by the warrant  of  the Speaker.   If  the  warrant  specifies  the  ground  of  the commitment  the court may, it would seem, determine  whether it  is sufficient in law as a ground to -amount to a  breach of privilege, but if the warrant is upon its (1)15 E.R. 784:(1864)1 Moo-P.C.(N.S.)487. (2)[1869-71] 3L.R.P.C.560. (3)  113 E.R. 419. 487 face  consistent with a breach of an acknowledged  privilege it  is conclusive and it is no objection that the breach  of privilege is stated in general terms.  This statement of law appears  to  be  in accordance with cases by  which  it  was finally  established,  namely, the Case of  the  Sheriff  of



Middlesex"(1).  Thus, even according to Chief Justice Dixon, the  existence  and  extent of privilege  is  a  justiciable matter  and can be adjudicated upon by the High  Court.   If the  warrant is a speaking warrant, the Court can  determine whether  it  is sufficient in law as a ground to  amount  to breach of privilege, though, if the warrant is unspeaking or general, the court cannot go behind it.  In our opinion,  it would not be reasonable to treat this decision as supporting the claim made by the House that the conclusive character of its  general warrant is a part and parcel of its  privilege. The  learned  Chief  Justice in fact did  not  consider  the question  on  the merits for himself.  He felt that  he  was bound  by  the observations made by Lord Cairns and  he  has merely purported to state what in his opinion is the  effect of the decision in the Case of the Sheriff of Middlesex(1). Besides, there is another aspect of this matter which cannot be  ignored.   The learned C.J. Dixon was dealing  with  the construction of s. 49 of the Australian Constitution, and as GwyerC.J.  has observed in In re The Central  Provinces  and Berar  Act No.  XIV of 1938 (2), "there are few subjects  on which  the decisions of other Courts require to  be  treated with  greater  caution than that of federal  and  provincial powers,  for in the last analysis the decision  must  depend upon  the  words  of the Constitution  which  the  Court  is interpreting;   and  since  no  two  Constitutions  are   in identical  terms,  it is extremely unsafe to assume  that  a decision on one of them can be applied without qualification to  another."  The learned Chief Justice  has  significantly added  that  this  may  be  so  even  where  the  words   or expressions used are the same in both cases for a word or  a phrase may take a colour from its context and bear different senses accordingly (p. 38). These observations are particularly relevant and appropriate in the context of the point which we are discussing.  Though the  words used in s. 49 of the Australian Constitution  are substantially  similar  to the words used  in  Art.  194(3), there are obvious points on which the relevant provisions of our  Constitution  differ  from  those  of  the   Australian Constitution.    Take,  for  instance,   Art.  32   of   our Constitution.   As we have already noticed, Art. 32  confers on the citizens of India the fundamental right to move (1) 113 E.R. 419.  1 Sup.C.I./65-6       (2) [1939] F.C.R. 18. 488 this  Court.  In other words, the right to move  this  Court for   breach  of  their  fundamental  rights  is  itself   a fundamental right.  The impact of this provision as well  as of the provisions contained in Art. 226 on the  construction of  the  latter  part of Article  194(3)  has  already  been examined by us, it may be that there are some provisions  in the  Australian Constitution which may take in some  of  the rights  which  are safeguarded under Art. 226 of  our  Cons- titution.   Art. 32 finds no counter-part in the  Australian Constitution.   Likewise,  there  is  no  provision  in  the Australian Constitution corresponding to Art. 211 of ours  : and  the presence of these distinctive features  contributes to  make  a  substantial  difference  in  the  meaning   and denotation  of  similar  words used in  the  two  respective provisions.  viz., s. 49 of the Australian Constitution  and Art.  194(3) of ours.  Besides, the declaration to which  s. 49 refers may not necessarily suffer to the same extent from the  limitation which would govern a law when it is made  by the Indian Legislatures under the first part of Art. 194(3). These  distinctive  features of the  relevant  and  material provisions  of our Constitution would make it  necessary  to



bear  in mind the words of caution and warning  which  Gwyer C.J., uttered as early as 1938.  Therefore, we think that it would  not  be safe or reasonable to rely too  much  on  the observations made by Dixon C.J. in dealing with the question of privileges in the case of Richards(1). Before we part with this topic, however, we may incidentally point  out that the recent observations made by Lord  Parker C.J.  in  In re Hunt(1) indicate that even in  regard  to  a commitment for contempt by the superior court of record, the court exercising its jurisdiction over a petition filed  for habeas  corpus would be ,competent to consider the  legality of  the  said  contempt notwithstanding the  fact  that  the warrant  of  commitment is general or  unspeaking.   Dealing with  the  arguments urged by Kenneth Douglas Hunt  who  had been  committed  for contempt by WynnParry J.,  Parker  C.J. observed : "It may be that the true view is, and I think the cases support it, that though this Court always has power to inquire  into  the legality of the committal,  it  will  not inquire whether the power has been properly exercised."  He, however,  added  that in the case before him, he  was  quite satisfied that the application ought to fail on the  merits. These  observations tend to show that in  exercising  habeas corpus jurisdiction, a court at Westminster has jurisdiction to  inquire into the legality of the commitment even  though the commitment has been ordered (1) 92 C.L.R.157. (2) [1959] 1 Q.B.D. 378.                             489 by  another superior court of record.  If that be  the  true position, it cannot be assumed with certainty that Courts at Westminster would today concede to the House of Commons  the right to claim that its general warrants are unexaminable by them. Even so, let us proceed on the basis that the relevant right Claimed  by  the House, of Commons is based  either  on  the ground  that as a part of the High Court of Parliament,  the House of Commons is a superior court of record and as  such, a  general Warrant for commitment issued by it for  contempt is treated as ,conclusive by courts at Westminster Hall;  or in course of time the right to claim a conclusive  character for such a general warrant became an incidental and integral part   of   the  privilege  itself.   The   question   which immediately arises is: can this right be deemed to have been conferred on the House in the present proceedings under  the latter part of Art. 194(3) ? Let  us first take the basis relating to the status  of  the House  of  Commons as a Superior Court of Record.   Can  the House claim such a status by any legal fiction introduced by Art.  194(3) ? In our opinion, the answer to  this  question cannot  be  in the affirmative.   The  previous  legislative history  in this matter does not support the idea  that  our State Legislatures were superior Courts of Record under  the Constitution Act of 1935.  Section 28 of the said Act  which dealt  with  the privileges of the  Federal  Legislature  is relevant on this point.  S. 28(1) corresponds to Art. 194(3) of the present Constitution.  Section 28(2) provides that in other  respects, the privileges of members of  the  Chambers shall be such as may from time to time be defined by Act  of the Federal Legislature and, until so defined, shall be such as   were  immediately  before  the  establishment  of   the Federation enjoyed by members of the Indian Legislature.  it is  not disputed that the members of the Indian  Legislature could  not  have claimed the status of being  members  of  a superior Court of Record prior to the Act of 1935.   Section 28(3)  prescribes that nothing in any existing  Indian  Act,



and, notwithstanding anything in the foregoing provisions of this  section,  nothing in this Act, shall be  construed  as conferring, or empowering the Federal Legislature to confer, on  either Chamber or on both Chambers sitting together,  or on  any committee or officer of the Legislature, the  status of  a  Court, or any punitive or disciplinary  powers  other than  a  power to remove or exclude persons  infringing  the -rules  or  standing  orders, or  otherwise  behaving  in  a disorderly manner.  Section 28 (4) is also relevant for  our purpose.  It -provides that provision may be made by an  Act of the Federal Legislature for the punish- 490 ment, on conviction before a Court, of persons who refuse to give  evidence r produce documents before a committee  of  a Chamber when duly required by the Chairman of the  committee so to do There can be no doubt that these provisions clearly indicate that the Indian Legislature could not have  claimed the power to punish for contempt committed outside the four- walls  of its Legislative Chamber.  Section 71 of  the  same Act  deals  with the Pro vincial Legislatures  and  contains similar provisions in its clauses (2), (3) and (4). After  the Indian Independence Act, 1947 (1 0 & 11 Geo.   VI c.  20)  was  passed,  this  position  was  altered  by  the amendments  made  in the Government of India  Act,  1935  by various  amendment  orders.   The result  of  the  amendment orders  including Third Amendment Order, 1948 was that  sub- sections  (3)  and (4) of section 28 of the  said  Act  were deleted and sub-section (2) was amended.  The effect of this amendment  was that the members of the Federal  Chambers  of Legislature could until their privileges were defined by Act of  Federal Legislature claim the privileges enjoyed by  the members  of  the House of Commons which  were  in  existence immediately before the establishment of the Federation.   It is,  however, remarkable that the corresponding  subsections (3) and (4) of section 71 were retained.  The question as to whether  the result of the deletion of sub-sections (3)  and (4)  and  the amendment of sub-section (2) of S. 28  was  to confer on the Federal Legislature the same status as that of the House of Commons, does not call for our -decision in the present  Reference.  Prima facie, it may conceivably  appear that the conferment of the privileges of the members of  the House  of Commons on the members of the Federal  Legislature could not necessarily make the Federal Legislature the House of  Commons for all purposes; but that is a matter which  we need not discuss and decide in the present proceedings.  The position  with regard to the Provincial Legislatures at  the relevant time is, however, absolutely clear and there  would obviously be no scope for the argument that at the time when the  Constitution  was passed  the  Provincial  Legislatures could  claim the status of the House of Commons and as  such of  a superior Court of Record.  That is the  constitutional background   of  Art.  194(3)  insofar  as  the   Provincial Legislatures are concerned.  Considered in the light of this background, it is difficult to accept the argument that  the result  of  the provisions contained in the latter  part  of Art.  194(3)  was  intended to be to  confer  on  the  State Legislatures  in  India the status of a  superior  Court  of Record. 491 In this connection, it is essential to bear in mind the fact that  the  status of a superior Court of  Record  which  was accorded  to  the House of Commons, is based  on  historical facts  to which we have already referred.  It is a  fact  of English history that the parliament was discharging judicial functions  in  its  early  career.  It is  a  fact  of  both



historical  and constitutional history in England  that  the House  of Lords still continues to be the highest  Court  of law in the country.  It is a fact of constitutional  history even   today  that  both  the  Houses  possess   powers   of impeachment  and attainder.  It is obvious, we  think,  that these historical facts cannot be introduced in India by  any legal   fiction.   Appropriate  legislative  provisions   do occasionally introduce legal fictions, but there is a  limit to  the  power of law to introduce such fictions.   Law  can introduce fictions as to legal rights and obligations and as to  the retrospective operation of provisions made  in  that behalf;  but legal fiction can hardly  introduce  historical facts from one country to another. Besides,  in regard to the status of the superior  Court  of Record  which  has been accorded to the  House  of  Commons, there  is  another  part  of English  history  which  it  is necessary  to remember.  The House of Commons had  to  fight for  its existence against the King and the House of  Lords, and the Judicature was regarded by the House of Commons as a creature  of  the  King and  the  Judicature  was  obviously subordinate  to  the  House  of Lords  which  was  the  main opponent  of  the  House of Commons.   This  led  to  fierce struggle  between the House of Commons on the one hand,  and the  King and the House of Lords on the other.  There is  no such  historical  background in India and there  can  be  no historical justification for the basis on which the House of Commons  struggled  to deny the jurisdiction of  the  Court; that  is another aspect of the matter which is  relevant  in considering  the  question as to whether the  House  in  the present  case  can claim the status of a superior  Court  of Record. There is no doubt that the House has the power to punish for contempt committed outside its chamber, and from that  point of view it may claim one of the rights possessed by a  Court of  Record.   A  Court  of  Record,  according  to  Jowitt’s Dictionary  of English Law, is a court whereof the acts  and judicial proceedings are enrolled for a perpetual memory and testimony,  and  which has power to fine  and  imprison  for contempt  of its authority.  The House, and indeed  all  the Legislative   Assemblies  in  India  never  discharged   any judicial  functions and their historical and  constitutional background does not support the claim that they can be 492 regarded  as Courts of Record in any sense.  If that be  so, the very basis on which the English Courts agreed to treat a general  warrant  issued  by the House  of  Commons  on  the footing that it was a warrant issued by a superior Court  of Record,  is absent in the present case, and so, it would  be unreasonable  to contend that the relevant power to claim  a conclusive character for the general warrant which the House of Commons, by agreement, is deemed to possess, is vested in the  House.  On this view of the matter, the claim  made  by the House must be rejected. Assuming,  however, that the right claimed by the House  can be  treated  as an integral part of the  privileges  of  the House of Commons, the question to consider would be  whether such  a right has been conferred on the House by the  latter part of Art. 194(3).  On this alternative hypothesis, it  is necessary to consider whether this part of the privilege  is consistent with the material provisions of our Constitution. We  have  already referred to Articles 32 and 226.   Let  us take  Art.  32  because  it  emphatically  brings  out   the significance  of  the  fundamental right  conferred  on  the citizens  of India to move this Court if  their  fundamental rights  are  contravened either by the  Legislature  or  the



Executive.  Now, Art. 32 makes no exception in regard to any encroachment  at  all,  and it  would  appear  illogical  to contend  that  even if the right claimed by  the  House  may contravene  the  fundamental  rights  of  the  citizen,  the aggrieved citizen cannot successfully move this Court  under Art. 32.  To the absolute constitutional right conferred  on the  citizens  by Art. 32 no exception can be  made  and  no exception  is  intended to be made by  the  Constitution  by reference   to  any  power  or  privilege  vesting  in   the Legislatures of this country. As we have already indicated we do not propose to enter into a  general  discussion as to the applicability  of  all  the fundamental rights to the cases where legislative powers and privileges  can be exercised against any individual  citizen of this country, and that we are dealing with this matter on the footing that Art. 19 (1) (a) does not apply and Art.  21 does.   If  an occasion arises, it may become  necessary  to consider whether Art. 22 can be contravened by the  exercise of  the power or privilege under Art. 194(3).  But, for  the moment,  we may consider Art. 20.  If Art. 21 applies,  Art. 20  may conceivably apply, and the question may arise, if  a citizen  complains  that  his  fundamental  right  had  been contravened  either under Art. 20 or Art. 21, can he or  can he  not move this Court under Art. 32 ? For the  purpose  of making the point which we are discussing, the  applicability of Art. 21 itself would 493 be enough.  If a citizen moves this Court and complains that his fundamental right under Art. 21 had been contravened, it would  plainly  be  the duty of this Court  to  examine  the merits  of the said contention, and that  inevitably  raises the  question  as  to whether the personal  liberty  of  the citizen  has  been  taken away according  to  the  procedure established  by  law.  In fact, this question  was  actually considered  by this Court in the case of  Pandit  Sharma("). It  is  true  that  the answer was made  in  favour  of  the legislature;  but that is wholly immaterial for the  purpose of  the  present  discussion.   If  in  a  given  case,  the allegation made by the citizen is that he has been  deprived of  his  liberty  not  in  accordance  with  law,  but   for capricious  or  mala fide reasons, this Court will  have  to examine the validity of the said contention, and it would be no  answer  in such a case to say that  the  warrant  issued against  the  citizen  is a general warrant  and  a  general warrant must stop all further judicial inquiry and scrutiny. In  our  opinion, therefore, the impact of  the  fundamental constitutional right conferred on Indian citizens by Art. 32 on  the  construction of the latter part of Art.  194(3)  is decisively against the view that a power or privilege can be claimed by the House though it may be inconsistent with Art. 21.   In this connection, it may be relevant to recall  that the  rules  which the House has to make for  regulating  its procedure and the conduct of its business have to be subject to the provisions of the Constitution under Art. 208(1). Then,  take  the case of Art. 211 and see  what  its  impact would  be  on  the  claim of the House  with  which  we  are dealing.  If the claim of the House is upheld, it means that the House can issue a general warrant against a Judge and no judicial scrutiny can be held in respect of the validity  of such  a  warrant.   It  would indeed  be  strange  that  the Judicature should be authorised to consider the validity  of the  legislative  acts of our Legislatures,  but  should  be prevented  from scrutinising the validity of the  action  of the  legislatures  trespassing  on  the  fundamental  rights conferred  on the citizens.  If the theory that the  general



warrant  should be treated as conclusive is accepted,  then, as we have already indicated, the basic concept of  judicial independence would be exposed to very grave jeopardy; and so the impact of Art. 211 on the interpretation of Art.  194(3) in  respect  of this particular power  is  again  decisively against the contention raised by the House. If  the  power  of the High Courts under Art.  226  and  the authority of this Court under Art. 32 are not subject to any exceptions,  then  it  would be futile  to  contend  that  a citizen cannot move the (1)  [1959] Supp.  1 S.C.R. 806. 494 High Courts or this Court to invoke their jurisdiction  even in,  cases where his fundamental rights have been  violated. The  existence  of  judicial  power  in  that  behalf   must necessarily  and  inevitably postulate the  existence  of  a right  in  the  citizen to move the Court  in  that  behalf; otherwise  the power conferred on the High Courts  and  this Court  would be rendered virtually meaningless.  Let it  not be  forgotten that the judicial power conferred on the  High Courts  and  this Court is meant for the protection  of  the citizens’  fundamental rights, and so, in the  existence  of the  said judicial power itself is necessarily involved  the right  of  the  citizen. to appeal to the said  power  in  a proper case. In  In  re Parliamentary Privilege Act, 1770(1),  the  Privy Council  was asked to consider whether the House of  Commons would be acting contrary to the Parliamentary Privilege Act, 1770, if it treated the issue of a writ against a Member  of Parliament  in respect of a speech or proceeding by  him  in Parliament as a breach of its privileges.  The said question had given rise to some doubt, and so, it was referred to the Privy Council for its opinion.  The opinion expressed by the Privy  Council was in favour of Parliament.   Confining  its answer to the said limited question, the Privy Council  took the  precaution  of  adding that "they  express  no  opinion whether  the  proceedings referred to  in  the  introductory paragraph  were ’a proceeding in Parliament, a question  not discussed before them, nor on the question whether the  mere is-sue  of a writ would in any circumstances be a breach  of privilege."  "In taking this course", said Viscount  Simonds who spoke for the Privy Council, "they have been mindful  of the  inalienable  right of Her Majesty’s  subjects  to  have recourse to her courts of law for the remedy of their wrongs and would not prejudice the hearing of any cause in which  a plaintiff  sought  relief." The inalienable right  to  which Viscount  Simonds referred is implicit in the provisions  of Art.  226 and Art. 32, and its existence is  clearly  incon- sistent  with the right claimed by the House that a  general warrant  should  be treated as conclusive in all  courts  of law;  it would also be equally inconsistent with  the  claim made  by the House that Keshav Singh has committed  contempt by moving the High Court under Art. 226. In  this connection, it would be interesting to refer  to  a resolution  passed by the House of Lords in 1704.   By  this resolution,  it  was declared that deterring  electors  from prosecuting  actions  in the ordinary courts of  law,  where they  are deprived of their right of voting, and  terrifying attorneys,  solicitors, counsellors,  and  serjeants-at-law, from soliciting, prosecuting and pleading in such cases,  by voting their so doing to be a breach of privilege of the (1) [1958]     A.C. 331‘                             495 House of Commons, is a manifest assuming of power to control the  law, to hinder the course of justice, and  subject  the



property  of Englishmen to the arbitrary votes of the  House of Commons.  This was in answer to the resolution passed  by the  House of Commons in the same year indicating  that  the House  would treat the conduct of any person in  moving  the court  for appropriate reliefs in matters mentioned  by  the resolution of the House as amounting to its contempt.  These resolutions  and  counterresolutions merely  illustrate  the fierce  struggle  which was going on between  the  House  of Commons and the House of Lords during those turbulent  days; but  the  interesting  part of this dispute  is  that  if  a question  had  gone to the House of Lords in regard  to  the competence  of  the  House of Commons to punish  a  man  for invoking the jurisdiction of the ordinary courts of law, the House of Lords would undoubtedly have rejected such a claim, and that was the basic apprehension of the House of  Commons which  was  responsible  for its refusal  to  recognise  the jurisdiction  of the courts which in the last analysis  were subordinate to the House of Lords. Section  30 of the Advocates Act, 1961 (25 of 1961)  confers on  all  Advocates the statutory right to  practise  in  all courts  including the Supreme Court, before any tribunal  or person  legally authorised to take evidence, and before  any other authority or person before whom such advocate is by or under  any  law  for the time being  in  force  entitled  to practise.   Section 14 of the Bar Councils Act recognises  a similar right.  If a citizen has the right to move the  High Court  or  the  Supreme Court against the  invasion  of  his fundamental  rights, the statutory right of the advocate  to assist the citizen steps in and helps the enforcement of the fundamental  rights of the citizen.  It is hardly  necessary to  emphasise that in the enforcement of fundamental  rights guaranteed to the citizens the legal profession plays a very important  and vital role, and so, just as the right of  the Judicature  to deal with matters brought before  them  under Art.  226 or Art. 32 cannot be subjected to the  powers  and privileges of the House under Art. 194(3), so the rights  of the  citizens to move the Judicature and the rights  of  the advocates to assist that process must remain uncontrolled by Article 194(3).  That is one integrated scheme for enforcing the fundamental rights and for sustaining the rule of law in this  country.   Therefore,  our  conclusion  is  that   the particular  right which the House claims to be  an  integral part  of  its power or privilege is  inconsistent  with  the material provisions of the Constitution and cannot be deemed to have been included under the latter part of Art. 194(3). 496 In  this  connection,  we  ought to add  that  there  is  no substance  in the grievance made by Mr. Seervai that  Keshav Singh acted illegally in impleading the House to the  habeas corpus  petition filed by him before the Lucknow Bench.   In our opinion, it cannot be said that the House was improperly joined  by Keshav Singh, because it was open to him to  join the House on the ground that his commitment was based on the order  passed by the House, and in that sense the House  was responsible for, and had control over, his commitment  (vide The  King v. The Earl of Crewe, Ex parte Sekgome(1) and  The King  v.  Secretary  of State for  Home  Affairs,  Ex  parte O’brien(2).  Besides, the fact that Keshav Singh joined  the House to his petition, can have no relevance or  materiality in  determining the main question of the power of the  House to  take  action against the Judges, the Advocate,  and  the ’party for their alleged contempt. As we have indicated at the outset of this opinion, the crux of  the  matter is the, construction of the latter  part  of Art. 194(3), and in the light of the assistance in which  we



must derive from the other relevant and material  provisions of  the  Constitution,  it is necessary  to  hold  that  the particular  power  claimed  by the House  that  its  general warrants must be held to be conclusive, cannot be deemed  to be the subject-matter of the latter part of Art. 194(3).  In this  connection,  we may incidentally observe  that  it  is somewhat  doubtful  whether  the power to  issue  a  general unspeaking  warrant claimed by the House is consistent  with s.  554(2)(b) and s. 555 of the Code of Criminal  Procedure. It  appears that in England, general warrants are issued  in respect  of  commitment for contempt by superior  courts  of record, and the whole controversy on this point,  therefore, rested  on  the  theory that the right to  issue  a  general warrant which is recognised in respect of superior Courts of Record must be conceded to the House of Commons, because  as a  part  of  the High Court of Parliament  it  is  itself  a superior Court of Record. Before  we  part  with this topic,  there  are  two  general considerations  to  which we ought to advert.  It  has  been urged before us by Mr. Seervai that the right claimed by the House  to issue a conclusive general warrant in  respect  of contempt is an essential right for the effective functioning of  the House itself, and he has asked us to deal with  this matter from this point of view.  It is true that this  right appears  to  have been recognised by courts  in  England  by agreement or convention or by considerations of comity;  but we think it is strictly not accurate to say that every (1) [1910] 2 K.B. 576. (2) [1923] 2 K.B. 361. 497 democratic  legislature  is armed with such a  power.   Take the, case of the American Legislatures.  Article 1,  section 5  of  the  American Constitution does  not  confer  on  the American  Legislature such a power at all. it provides  that each House shall be the judge of the Elections, Returns  and Qualifications  of its own Members, and a majority  of  each shall  constitute  a quorum to do business;  but  a  smaller number may adjourn from day to day, and may be authorised to compel the attendance of absent Members, in such manner, and under such penalties as each House may provide.  Each  House may  determine  the  Rules of its  proceedings,  punish  its Members for disorderly behaviour, and, with the  concurrence of  two-thirds, expel a Member.  Contempt committed  outside the  four-walls of the legislative chamber by a citizen  who is  not  a  Member  of the House seems  to  be  outside  the jurisdiction  of  the American Legislature’  As  Willis  has observed,  punishment  for contempt is  clearly  a  judicial function;  yet in the United States, Congress  may  exercise the  power to punish for contempt as it relates  to  keeping order among its own members, to compelling their attendance, to  protecting  from  assaults  or  disturbances  by  others (except by slander and libel), to determining election cases and  impeachment charges, and to exacting information  about other  departments  in aid of the  legislative  function(1). Nobody has ever suggested that the American Congress has not been  functioning effectively because it has not been  armed with the particular power claimed by the House before us. In  India, there are several State Legislatures in  addition to  the Houses of Parliament.  If the power claimed  by  the House before us is conceded, it is not difficult to  imagine that  its exercise may lead to anomalous situations.  If  by virtue  of the absolute freedom of speech conferred  on  the Members  of  the Legislatures, a Member of  one  Legislature makes  a  speech in his legislative  chamber  which  another legislative  chamber regards as amounting to  its  contempt,



what would be the position ? The latter legislative  chamber can issue a general warrant and punish the Member alleged to be  in contempt, and a free exercise of such power may  lead to very embarrassing situations.  That is one reason why the Constitution-makers   thought   it   necessary   that    the Legislatures  should in due course enact laws in respect  of their  powers, privileges and immunities, because they  knew that  when such laws are made, they would be subject to  the fundamental  rights and would be open to examination by  the courts  in India.  Pending the making of such laws,  powers, privileges and immunities were conferred by the latter  part of Art. 194(3).  As we have already (1)  Wills, constitutional Law, p. 145. 498 emphasised, the construction of this part of the article  is within  the  jurisdiction of this Court, and  in  construing this  part, we have to bear in mind the other  relevant  and material  provisions  of the Constitution.  Mr.  Seervai  no doubt invited our attention to the fact that the  Committees of  Privileges  of the Lok Sabha and the Council  of  States have  adopted a Report on May 22, 1954 with a view to  avoid any embarrassing or anomalous situations resulting from  the exercise  of the legislative powers and  privileges  against the members of the respective bodies, and we were told  that similar  resolutions  have been adopted by  almost  all  the Legislatures in India.  But these are matters of  agreement, not matters of law, and it is not difficult to imagine  that if  the  same  political party is not in power  in  all  the States,  these  agreements themselves may not  prove  to  be absolutely effective.  Apart from his aspect of the  matter, in  construing  the relevant clause of  Art.  194(3),  these agreements can play no significant part. In the course of his arguments Mr. Seervai laid considerable emphasis on the fact that in habeas corpus proceedings,  the High  Court had no jurisdiction to grant interim  bail.   It may be conceded that in England it appears to be  recognised that  in  regard  to  habeas  corpus  proceedings  commenced against orders of commitment passed by the House of  Commons on  the ground of ,contempt, bail is not granted by courts. -As a matter of course, during the last century and more  in such habeas corpus proceedings returns are made according to law  by the House of Commons, but "the general rule is  that the  parties  who  stand committed for  contempt  cannot  be admitted  to  bail."  But  it is  difficult  to  accept  the argument  that in India the position is exactly the same  in this matter.  If Art. 226 confers jurisdiction on the  Court to  ,deal with the validity of the order of commitment  even though the commitment has been ordered by the House, how can it  be  said that the Court has no jurisdiction to  make  an interim order in such proceedings?  As has been held by this Court  in  State  of  Orissa  v.  Madan  Gopal  Rungta,  and Others("), an interim relief can be granted only in aid  of, and as ancillary to, the main relief which may be  available to the party on final determination of his rights in a  suit or proceeding.  Indeed, as Maxwell has observed, when an Act confers  a jurisdiction, it impliedly also grants the  power of  doing  all such acts, or employing such  means,  as  are essentially  necessary to its execution(2).  That being  so, the  argument  based  on  the  relevant  provisions  of  the Criminal Procedure (1)  [1952] S.C.R. 28. (2)  Maxwell  on  Interpretation of Statutes, 11th  ed.,  p. 350. 499 Code  and the decision of the Privy Council in  Lala  Jairam



Das and Others v. King Emperor(1), is of no assistance. We ought to make it clear that we are dealing with the ques- tion  of  jurisdiction  and  are  not  concerned  with   the propriety   or  reasonableness  of  the  exercise  of   such jurisdiction.   Besides, in the case of a superior Court  of Record,  it is for the court to consider whether any  matter falls  within  its jurisdiction or not.  Unlike a  court  of limited  jurisdiction,  the superior Court  is  entitled  to determine  for itself questions about its own  jurisdiction. "Prima  facie",  says Halsbury, "no matter is deemed  to  be beyond  the  jurisdiction of a superior court unless  it  is expressly  shown  to  be so, while  nothing  is  within  the jurisdiction  of  an inferior court unless it  is  expressly shown  on  the face of the proceedings that  the  particular matter   is   within  the  cognizance  of   the   particular court."(1). We cannot, therefore, accede to the  proposition that  in passing the order for interim bail, the High  Court can  be  said  to have exceeded its  jurisdiction  with  the result  that  the  order  in  question  is  null  and  void. Besides, the validity of the order has no relation  whatever with  the question as to whether in passing the  order,  the Judges have committed contempt of the House. There is yet one more aspect of this matter to which we  may incidentally  refer.   We have already noticed that  in  the present case, when the habeas corpus petition was  presented before  the Lucknow Bench at 2 P.m. on March 19, 1964,  both parties.  appeared by their respective Advocates and  agreed that  the application should be taken up at 3 P.m. the  same day,  and  yet  the House which was impleaded  to  the  writ petition and the other respondents to it for whom Mr.  Kapur had appeared at the earlier stage, were absent at that time. That  is how the Court directed that notice on the  petition should  be  issued  to  the  respondents  and  released  the petitioner on bail subject to the terms and conditions which have already been mentioned; and it is this latter order  of bail which has led to the subsequent developments.  In other words,  before  taking  the precipitate  action  of  issuing warrants against the Judges of the Lucknow Bench, the  House did  not conform to the uniform practice which the House  of Commons  has followed for more than a century past  and  did not  instruct its lawyer either to file a return or  to  ask for time to do so, and to request that the Court should stay its  hands until the return was filed.  It is  not  disputed that  whenever  commitment  orders passed by  the  House  of Commons are challenged in England before (1) 72 I.A. 120. (2) Halsbury’s Laws of England, vol. 9, p. 349. 500 the  Courts  at Westminster, the House  invariably  makes  a return  and  if  the warrant issued by  it  is  general  and unspeaking, it is so stated in the return and the warrant is produced.   If this course had been adopted in  the  present proceedings,  it  could  have been said that  the  House  in exercising  its  powers  and privileges,  conformed  to  the pattern  which,  by  convention, the House  of  Commons  has invariably  followed in England during the last century  and more;  but that was not done; and as soon as the House  knew that an order granting bail had been passed, it proceeded to consider whether the Judges themselves were not in contempt. On these narrow facts, it would be possible to take the view that no question of contempt committed by the Judges arises. In  view of the fact that Mr. Kapur had appeared before  the Court  at  2 P.m. on behalf of all the respondents  and  had agreed that the matter should be taken up at 3 P.m., it  was his duty to have appeared at 3 P.m. and to have either filed



a return or to have asked for time to do so on behalf of the House.  If the House did not instruct Mr. Kapur to take this step and the Court had no knowledge as to why Mr. Kapur  did not appear, it is hardly fair to blame the Court for  having proceeded  to issue notice on the petition and granted  bail to the petitioner.  In these proceedings it is not necessary for  us to consider what happened between Mr. Kapur and  the House  and  why  Mr.  Kapur did not  appear  at  3  P.m.  to represent the House and the other respondents.  The  failure of  Mr.  Kapur  to appear before the Court  at  3  P.m.  has introduced an unfortunate element in the proceedings  before the Court and is partly responsible for the order passed  by the Court.  One fact is clear, and that is that at the  time when the Court issued notice and released the petitioner  on bail,  it had no knowledge that the warrant under which  the petitioner  had been sentenced was a general warrant and  no suggestion was made to the Court that in the case of such  a warrant  the  Court had no authority to make  any  order  of bail.  This fact cannot be ignored in dealing with the  case of the House that the Judges committed contempt in releasing the petitioner on bail. But we ought to make it clear that we do not propose to base our  answers  on  this narrow view of  the  matter,  because questions 3 and 5 are broad enough and they need answers  on a  correspondingly  broad  basis.   Besides,  the   material questions  arising from this broader aspect have been  fully argued before us, and it is plain that in making the present Reference,  the President desires that we should render  our answers  to  all  the questions and not  ,exclude  from  our consideration any relevant aspects on the ground 501 that  these aspects would not strictly arise on the  special facts which have happened so far in the present proceedings. In conclusion,, we ought to add that throughout our  discus- sion  we have consistently attempted to make it  clear  that the  main point which we are discussing is the right of  the House  to  claim  that a general warrant  issued  by  it  in respect of its contempt alleged to have been committed by  a citizen  who is not a Member of the House outside the  four- walls  of the House, is conclusive, for it is on that  claim that the House has chosen to take the view that the  Judges, the  Advocate,  and  the party have  committed  contempt  by reference  to  their conduct in the habeas  corpus  petition pending  before  the  Lucknow Bench of  the  Allahabad  High Court.   Since  we  have held that in the  present  case  no contempt  was  committed  either  by  the  Judges,  or   the Advocate, or the party respectively, it follows that it  was open  to the High Court of Allahabad, and indeed it was  its duty, to entertain the petitions filed before it by the  two Judges   and  by  the  Advocate,  and  it  was  within   its jurisdiction  to  pass the interim  orders  prohibiting  the further  execution  of  the impugned orders  passed  by  the House. Before  we part with this topic, we would like to  refer  to one aspect of the question relating to the exercise of power to punish for contempt.  So far as the courts are concerned, Judges always keep in mind the warning addressed to them  by Lord Atkin in Andre Paul v. Attorney-General of Trinidad(1). Said  Lord  Atkin "Justice is not a cloistered  virtue;  she must  be allowed to suffer the scrutiny and respectful  even though out-spoken comments of ordinary men." We ought  never to forget that the power to punish for contempt large as  it is,  must  always be exercised cautiously, wisely  and  with circumspection.   Frequent  or indiscriminate  use  of  this power  in anger or irritation would not help to sustain  the



dignity or status of the court, but may sometimes affect  it adversely.   Wise Judges never forget that the best  way  to sustain the dignity and status of their office is to deserve respect  from  the public at large by the quality  of  their judgments,  the  fearlessness, fairness and  objectivity  of their  approach, and by the restraint, dignity  and  decorum which they observe in their judicial conduct.  We venture to think that what is true of the Judicature is equally true of the Legislatures. Having thus discussed all the relevant points argued  before us  and  recorded our conclusions on them, we are now  in  a position (1)  A.I.R. 1936 P.C. 141. 502 to  render our answers to the five questions referred to  us by the President.  Our answers are:-               (1)   On the facts and circumstances of the it               was  competent  for the Lucknow Bench  of  the               High Court of Uttar Pradesh, consisting of  N.               U. Beg and G. D. Sahgal JJ., to entertain  and               deal   with  the  petition  of  Keshav   Singh               challenging  the legality of the  sentence  of               imprisonment   imposed   upon   him   by   the               Legislative Assembly of Uttar Pradesh for  its               contempt   and   for   infringement   of   its               privileges and to pass orders releasing Keshav               Singh on bail pending the disposal of his said               petition.               (2)   On  the facts and circumstances  of  the               case, Keshav Singh by causing the petition  to               be  presented on his behalf to the High  Court               of Uttar Pradesh as aforesaid, Mr. B.  Solomon               Advocate, by presenting the said petition, and               the  said two Hon’ble Judges  by  entertaining               and dealing with the said petition and  order-               ing  the  release  of  Keshav  Singh  on  bail               pending disposal of the said petition, did not               commit contempt of the Legislative Assembly of               Uttar Pradesh.               (3)   On  the facts and circumstances  of  the               case, it was not competent for the Legislative               Assembly  of  Uttar  Pradesh  to  direct   the               production of the said two Hon’ble Judges  and               Mr. B. Solomon Advocate, before it in  custody               or  to  call  for their  explanation  for  its               contempt.               (4)   On  the facts and circumstances  of  the               case,  it was competent for the Full Bench  of               the  High Court of Uttar Pradesh to  entertain               and  deal with the petitions of the  said  two               Hon’ble  Judges and Mr. B.  Solomon  Advocate,               and  to  pass interim orders  restraining  the               Speaker  of the Legislative Assembly of  Uttar               Pradesh  and  other respondents  to  the  said               petitions  from  implementing  the   aforesaid               direction  of the said  Legislative  Assembly;               and               (5)   In rendering our answer to this question               which  is  very broadly worded,  we  ought  to               preface  our answer with the observation  that               the answer is confined to cases in relation to               contempt  alleged to have been committed by  a               citizen  who  is  not a member  of  the  House               outside  the  four-walls  of  the  legislative               chamber.   ’A  Judge  of  a  High  Court   who



             entertains or deals with               503               a  petition challenging any order or  decision               of  a Legislature imposing any penalty on  the               petitioner or issuing any process against  the               petitioner   for   its   contempt,   or    for               infringement of its privileges and immunities,               or who passes any order on such petition, does               not  commit contempt of the said  Legislature;               and  the said Legislature is not competent  to               take  proceedings against such a Judge in  the               exercise   and  enforcement  of  its   powers,               privileges and immunities.  In this answer, we               have   deliberately   omitted   reference   to               infringement  of privileges and immunities  of               the  House  which may include  priveleges  and               immunities other than those with which we  are               concerned in the present Reference. Sarkar J. This matter has come to us on a reference made  by the  President  under  Art. 143 of  the  Constitution.   The occasion  for the reference was a sharp conflict that  arose and  still  exists  between the  Vidhan  Sabha  (Legislative Assembly)   of   the  Uttar   Pradesh   State   Legislature, hereinafter referred to as the Assembly, and the High  Court of  that State.  That conflict arose because the High  Court had  ordered  the  release  on bail of  a  person  whom  the Assembly had committed to prison for contempt.  The Assembly considered  that the action of the Judges making  the  order and  of  the  lawyer  concerned in  moving  the  High  Court amounted to contempt and started proceedings against them on that  basis,  and the High Court, thereupon,  issued  orders restraining the Assembly and its officers from taking  steps in implementation of the view that the action of the  Judges and the lawyer and also the person on whose behalf the  High Court had been moved amounted to contempt. A very large number of parties appeared on the reference and this  was only natural because of the public  importance  of the question involved.  These parties were divided into  two broad groups, one supporting the Assembly and the other, the High Court. I  shall now state the actual facts which gave rise  to  the conflict.   The  Assembly  had passed a  resolution  that  a reprimand  be  administered to one Keshav Singh  for  having committed  contempt of the Assembly by publishing a  certain pamphlet  libelling one of its members.  No question  as  to the  legality of this resolution arises in this case and  we are concerned only with what followed.  Keshav Singh who was a  resident  of  Gorakhpar, in  spite  of  being  repeatedly required  to  do so, failed to appear  before  the  Assembly which held its sittings in Lucknow, to receive the reprimand 504 alleging inability to procure money to pay the fare for  the necessary  railway journey.  He was thereupon brought  under the custody of the Marshal of the Assembly in execution of a warrant issued by the Speaker in that behalf and produced at the  Bar of the House on March 14, 1964.  He was  asked  his name  by the Speaker repeatedly but he would not answer  any question  at  all.   He stood there with  his  back  to  the Speaker showing great disrespect to the House and would  not turn  round to face the Speaker though asked to do so.   The reprimand  having been administered, the Speaker brought  to the  notice of the Assembly a letter dated March  11,  1964, written  by Keshav Singh to him, in which he stated that  he protested   against  the  sentence  of  reprimand  and   had absolutely  no hesitation in calling a corrupt man  corrupt,



adding  that the contents of his pamphlet were  correct  and that  a brutal attack had been made on democracy by  issuing the  "Nadirshahi Firman" (warrant) upon him.   Keshav  Singh admitted having written that letter.  The Assembly thereupon passed  a  resolution  that "Keshav Singh  be  sentenced  to imprisonment  for  seven days for having  written  a  letter worded in language which constitutes ,contempt of the  House and  his  misbehaviour  in view of  the  House."  A  general warrant  was  issued  to the Marshal of the  House  and  the Superintendent,   District  Jail,  Lucknow   which   stated, "Whereas the .... Assembly has decided .... that Shri Keshav Singh be sentenced to simple imprisonment for seven days for committing  the offence of the contempt of the Assembly,  it is accordingly ordered that Keshav Singh be detained in  the District  Jail,  Lucknow for a period of  seven  days."  The warrant  did  not  state the  facts  which  constituted  the contempt.   Keshav Singh was thereupon taken to the Jail  on the same day and kept imprisoned there.  On March 19,  1964, B. Solomon, an advocate, presented a petition to a Bench  of the High Court of Uttar Pradesh then constituted by Beg  and Sahgal  JJ.,  which  sat in Lucknow, for a  writ  of  habeas corpus for the release of Keshav Singh alleging that he  had been deprived of his personal liberty without any  authority of  law and that this detention was mala fide.   This  Bench has  been referred to as the Lucknow Bench.   This  petition was  treated  as  having been made under  Art.  226  of  the Constitution  and S. 491 of the Code of Criminal  Procedure. On  the  same  date the learned Judges made  an  order  that Keshav  Singh be released on bail and that the  petition  be admitted  and notice be issued to the respondents  named  in it.  Keshav Singh was promptly released on bail.  This order interfered  with the sentence of imprisonment passed by  the House  by permitting Keshav Singh to be released  before  he had  served  the full term of his sentence.   On  March  21, 1964, the, Assembly 505 passed  a  resolution  stating that Beg J.,  Sahgal  J.,  B. Solomon and Keshav Singh had committed contempt of the House and that Keshav Singh be immediately taken into custody  and kept confined in the District Jail for the remaining term of his  imprisonment and that Beg J., Sahgal J. and B.  Solomon be brought in custody before the House, and also that Keshav Singh  be brought before the House after he had  served  the remainder  of his sentence.  Warrants were issued  on  March 23. 1964 to the Marshal of the House and the Commissioner of Lucknow  for carrying out the terms of the  resolution.   On the  same day, Sahgal J. moved a petition under Art. 226  of the  Constitution  in  the High Court of  Uttar  Pradesh  at Allahabad  for a writ of certiorari quashing the  resolution of the Assembly of March 21, 1964 and for other necessary writs restraining the Speaker and the Marshal of the Assembly  and the State Government from implementing that resolution and the   execution  of  the  orders  issued  pursuant  to   the resolution.   The petition however did not mention that  the war.rants  had been issued.  That may have been because  the warrants were issued after the petition had been  presented, or the issue of the warrant was not known to the petitioner. This petition was heard by all the Judges of the High  Court excepting Sahgal and Beg JJ. and they passed an order on the same day directing that the implementation of the resolution be  stayed.  Similar petitions were presented by B.  Solomon and  Beg J. and also by other parties, including  the  Avadh Bar  Association, and on some of them similar orders, as  on the  petition  of Sahgal J., appear to have been  made.   On March 25, 1964, the Assembly recorded an observation that by



its resolution of March 21, 1964 it was not its intention to decide  that Beg J., Sahgal J., B. Solomon and Keshav  Singh had  committed contempt of the House without giving  them  a hearing, but it had required their presence before the House for giving them an opportunity to explain their position and it resolved that the question may be decided after giving an opportunity  to  the above-named persons  according  to  the rules   to   explain  their  conduct.   Pursuant   to   this resolution, notices were issued on March 26, 1964 to Beg J., Sahgal  J.  and  B. Solomon informing them  that  "they  may appear  before  the  Committee  at  10  A.M.  on  April   6, 1964.............. to make-their submissions".  The warrants issued  on  March 23, 1964, which had never  been  executed, were  withdrawn  in  view of  these  notices.   The  present reference  was  made  on March 26. 1964  and  thereupon  the Assembly withdrew the notices of March 26, 1964 stating that in  view  of the reference the two Judges  and  Solomon  and Keshav Singh need not appear before the Privilege  Committee as required. 506 These  ’facts are set out in the recitals contained  in  the order of reference.  There is however one dispute as to  the statement of facts in the recitals.  It is there stated that the Assembly resolved on March 21, 1964 that the two Judges, Solomon  and  Keshav  Singh  "committed,  by  their  actions aforesaid,  contempt  of  the  House."  The  words  "actions aforesaid"  referred to the presentation of the petition  of Keshav  Singh of March 19, 1964 and the order made  thereon. It  is  pointed  out  on behalf of  the  Assembly  that  the resolution does not say what constituted the contempt.  This contention is correct. The main question ’in this reference is whether the Assembly has.  the  privilege of committing a person  to  prison  for contempt  by general warrant, that is, without  stating  the facts,  which constituted the contempt, and if it  does  so, have the courts of law the power to examine the legality  of such  a  committal’?   In other words if  there  is  such  a privilege,  does  it take precedence  over  the  fundamental rights of the detained citizen.  It is said on behalf of the Assembly  that it has such a privilege and the  interference by  the court in the present case was without  jurisdiction. The  question is then of the privilege of the Assembly,  for if it does -,lot possess the necessary privilege, it is  not disputed,  that  what the High Court has done in  this  case would for the present purposes be unexceptionable. First  then  as  to the privileges  of  the  Assembly.   The Assembly  relies for purpose on cl. (3) of Art. 194  of  the Constitution.   The first three clauses of that article  may at this stage be set out.               Art. 194(1) Subject to the provisions of  this               Constitution  and  to the rules  and  standing               orders   regulating  the  procedure   of   the               Legislature, there shall be freedom of  speech               in +’he Legislature of every State.               (2)   No member of the Legislature of a  State               shall  be  liable to any  proceedings  in  any               Court in respect of anything said or any  vote               given  by  him  in  the  Legislature  or   any               committee  thereof, and no person shall be  so               liable  in  respect of the publication  by  or               under  the  authority  of a House  of  such  a               Legislature  of  any report, paper,  votes  or               proceedings.               (3)   In    other   respects,   the    powers,               privileges  and immunities of a House  of  the



             Legislature of a State, and of the members and               the committees of a House of such Legislature,               shall  be  such as may from time  to  time  be               defined by the Legislature by law, and, until               507               so  defined,  shall be those of the  House  of               Commons  of  the  Parliament  of  the   United               Kingdom, and of its members and committees, at               the commencement of this Constitution. Article 105 contains identical provisions in relation to the Central  Legislature.  It is not in dispute that  the  Uttar Pradesh  Legislature  has  not made  any  law  defining  the powers,  privileges and immunities of  its two Houses.   The Assembly,  therefore, claims that :It has  those  privileges which  the  House of Commons in England had on  January  25, 1950. I would like at this stage to say a few general words  about "powers, privileges and immunities" of the House of  Commons or  its  members.   First  I wish to note  that  it  is  not necessary  for  our purposes to make a  distinction  between "privileges",             " powers" and "immunities".   They are  no  doubt different in the matter of  their  respective contents but perhaps in no otherwise.  Thus the right of the House to have -absolute control of its internal  proceedings may be considered as its privilege, its right to punish  one for  contempt may be more properly described as  its  power, while the right that no member shall be liable for  anything said  in  the House may be really an  immunity.   All  these rights are however created by one law and judged by the same standard.   I  shall for the sake of  convenience,  describe them  all  as "privileges".  Next I note that this  case  is concerned with privileges of the House of Commons alone, and not with those of its members and its committees.  I  stress however  that  the privileges of the latter two  are  in  no respect  different  from those of the former  except  as  to their content,;. The nature of the privileges of the House of Commons can  be best discussed by referring to May’s Parliamentary Practice, which  is  an  acknowledged work  of  authority  on  matters concern  in the English Parliament.  It may help to  observe here that for a long time now there is no dispute as to  the nature of the recognised privileges of the Commons. I start to explain the nature of the privileges by  pointing out  the distinction between them and the functions  of  the House.  Thus the financial powers of the House of Commons to initiate  taxation  legislation is often  described  as  its privilege.   This, however, is not the kind of privilege  of the  House of Commons to which  cl. (3) of Art. 194  refers. Privileges of the House of Commons have a technical  meaning in  English Parliamentary Law and the article uses the  word in  that  sense  only.  That technical sense  has  been  de- scribed in these words: "[C]ertain fundamental 508 rights  of  each  House  which  are  generally  accepted  as necessary   for   the   exercise   of   its   constitutional functions."(1) A point I would like to stress now is that it is of the essence of the nature of the privileges that  they are ancillary to the main functions of the House of Commons. Another thing which I wish to observe at this stage is  that "[s]one  privileges rest solely upon the law and  custom  of Parliament, while others have been defined by statute.  Upon these  grounds  alone all privileges whatever  are  founded" (2).   In  this case we shall be concerned with  the  former kind  of  privilege only.  The point to note  is  that  this variety of privilege derives its authority from the law  and



custom  of Parliament.  This law has been given the name  of Lex  Parliamenti.   It  owes its origin  to  the  custom  of Parliament.  It is, therefore, different from the common law of England which, though also based on custom, is based on a separate  set of custom, namely, that which prevails in  the rest of the realm.  This difference in the origin had  given rise  to serious disputes between Parliament and the  courts of  law but they have been settled there for many years  now and  except  a dispute as to theory, the recurrence  of  any practical dispute is not considered a possibility.  So  Lord Coleridge C.J. said in Bradlaugh v. Gossett(-’).               "Whether   in   all  cases   and   under   all               circumstances  the Houses are the sole  judges               of  their own privileges, in the sense that  a               resolution of either House on the subject  has               the  same effect for a court of law as an  Act               of  Parliament, is a question which it is  not               now  necessary  to determine.   No  doubt,  to               allow any review of parliamentary privilege by               a  court  of law may lead, has  led,  to  very               grave   complications,  and  might   in   many               supposable cases end in the privileges of  the               Commons  being determined by the Lords.   But,               to  hold  the  resolutions  of  either   House               absolutely  beyond inquiry in a court  of  law               may land us in conclusions not free from grave               complications too.  It is enough for me to say               that  it  seems  to  me  that  in  theory  the               question  is  extremely  hard  to  solve;   in               practice it is not very important, and at  any               rate does not now arise." This passage should suffice to illustrate the nature of  the dispute.   It  will not be profitable at all, and  indeed  I think  it will be ’mischievous,’ to enter upon a  discussion of  that dispute for it will only serve to make  turbid,  by raking up impurities which have settled down, a stream which has run clear now for years.  Furthermore (1)  May’, Parliamentary Practice, 16th ed. p. 42. (3) (1884) L.R. 12 Q.B.D. 271, 275. (2) lbid, p. 44. 509 that dispute can never arise in this country for here it  is undoubtedly  for  the courts to interpret  the  Constitution and,  therefore,  Art.  194(3).   It  follows  that  when  a question  arises  in this country under that article  as  to whether   the  House  of  Commons  possessed  a   particular privilege  at  the commencement of  the  Constitution,  that question must be settled, and settled only, by the courts of law.   There is no scope of the dreaded "dualism"  appearing here,  that  is, courts entering into a controversy  with  a House  of  a Legislature as to what its privileges  are.   I think what I have said should suffice to explain the  nature of the privileges for the purposes of the present  reference and  I  will now proceed to discuss the  privileges  of  the Assembly that are in question in this case, using that  word in the sense of rights ancillary to the main function of the legislature. The  privilege which I take up first is the power to  commit for contempt.  It is not disputed that the House of  Commons has this power.  All the decided cases and -text-books speak of such power.  "The power of commitment is truly  described as  the’ ’keystone of parliamentary  privilege’......without it the privileges of Parliament could not have become  self- subsistent, but, if they had not lapsed, would have survived on  sufferance."(1)  In  Burdett  V.  Abbott,   (2)     Lord



Ellenborough C.J. observed,               "Could it be expected........ that the Speaker               with his mace should be under the necessity of               going before a grand jury to prefer a bill  of               indictment for the insult offered to the House               ? They certainly must have the power of  self-               vindication  and self-protection in their  own               hands........ The  possession  of this power by the House of  Commons  is, therefore, undoubted. It  would  help  to appreciate the nature of  the  power  to commit  for contempt to compare it with breach  of  privlege which  itself may amount to contempt.  Thus the  publication of  the  proceedings  of the House of  Commons  against  its orders is a breach of its privilege and amounts to contempt. All  contempts,  however,  are not  breaches  of  privilege. Offences  against  the  dignity or authority  of  the  House though  called  "breaches of privilege"  are  more  properly distinguished  as  contempts.   Committing  to  prison   for contempts  is  itself a privilege of the  House  of  Commons whether the contempt is committed by a direct breach of  its privilege or by offending its (1) May, P. 90.                     (2) 104 E.R, 501, 559. 510 dignity  or  authority.(1)  "The functions,  privileges  and disciplinary  powers of a legislative body are thus  closely connected.   The privileges are the necessary complement  of the   functions,   and  the  disciplinary  powers   of   the privileges."(1)  I  may add that it is not in  dispute  that power  to  commit  for contempt may be  exercised  not  only against  a  member of the House but against an  outsider  as well. (3) It was contended on behalf of the High Court that the  power of the House of Commons to commit for contempt was not  con- ferred  by  cl.  (3) of Art. 194 on the Houses  of  a  State Legislature  because our Constitution has to be  read  along with its basic scheme providing for a division of powers and the power to commit to prison for contempt being in  essence a  judicial power, can under our Constitution  be  possessed only  by  a judicial body, namely, the courts and not  by  a legislative  body  like  the Assembly.   It  was,  therefore contended  that Art. 194(3) could not be read as  conferring judicial powers possessed by the House of Commons in England as  one of its privileges on a legislative body and  so  the Assembly did not possess it. This contention of the High Court is, in my view, completely without foundation; both principle and authority are against it.   This Court has on earlier occasions observed that  the principle  of separation of powers is not an essential  part of  our  Constitution : see for example In re.   Delhi  Laws Act(1).   Again  the Constitution is of course  supreme  and even  if  it  was based on the principle  of  separation  of powers,  there  was  nothing to  prevent  the  Constitution- makers, if they so liked, from conferring judicial powers on a  legislative body.  If they did so, it could not  be  said that the provision concerning it was bad as our Constitution was based on a division of powers.  Such a contention  would of  course  be  absurd.  The only  question,  therefore,  is whether our Constitution-makers have conferred the power  to commit  on  the Legislatures.  The question is  not  whether they had the power to do so, for there was no limit to their powers.  What the Constitution-makers had done can, however, be  ascertained  only  from the words used by  them  in  the Constitution  that  they made.  If those  words  are  plain, effect  must  be given to them irrespective of  whether  our



Constitution  is based on a division of power or not.   That takes  me to the language used in cl. (3) of Art. 194.   The words  there  appearing  are  "the  powers,  privileges  and immunities of a House.... shall (1) May, p. 43.                   (2) lbid. (3) Ibid., p. 91                  (4) [1951] S.C.R. 747,883. 511 be  those of the House of Commons".  I cannot  imagine  more plain  language than this.  That language can only have  one meaning  and that is that it was intended to confer  on  the State  Legislatures  the powers, privileges  and  immunities which  the  House of Commons in England had.   There  is  no occasion  here for astuteness in denying words  their  plain meaning  by  professing allegiance to a supposed  theory  of division  of powers.  So much as to the principle  regarding the application of the theory of division of powers. This  question  is  further  completely  concluded  by   the decision  of this Court in Pt.  M. S. M. Sharma v. Shri  Sri Krishna Sinha(1).  I will have to refer to this case in some detail  later.   There  Das  C.J.,  delivered  the  majority judgment of the constitution bench consisting of five Judges and Subba -Rao J. delivered his own dissenting opinion.  Das C.J.,  proceeded  on the basis that the Houses  of  a  State Legislature  had the power to commit for contempt.  It  was, therefore,  held that there was nothing in our  Constitution to  prevent  a  legislative body  from  possessing  judicial powers.   On this point Subba Rao J. expressed  no  dissent. Further, the Judicial Committee in England has in two  cases held  that under provisions, substantially similar to  those of  Art. 194(3) of our Constitution, the power of the  House of  Commons  to commit for contempt had  been  conferred  on certain legislative bodies of some of the British  Colonies. In  the Speaker of the Legislative Assembly of  Victoria  v. Glass(1)   it  was  held  that  a  statute  stating.    "The Legislative Council of Victoria...... shall hold, enjoy  and exercise such and the like privileges, immunities and powers as......  were  held, enjoyed and exercised by  the  Commons House of Parliament of Great Britain and Ireland"  conferred on  the Houses of the Legislature -of the Australian  Colony of  Victoria the judicial power to commit for contempt.   In Queen  v.  Richards(1)  it  was  held  that  s.  49  of  the Commonwealth  of  Australia  Constitution  Act,  1901  which provided that "the powers, privileges and immunities of  the Senate  and the House of Representatives .... shall be  such as are declared by the Parliament, and until declared, shall be  those of the Commons House of Parliament of  the  United Kingdom...... ", conferred on the Houses judicial powers  of committing a person to prison for contempt.  It was observed by Dixon C.J.                "This  is  not the occasion  to  discuss  the               historical      grounds   upon   which   these               powers     and  privileges  attached  to   the               House of Commons.    It is sufficient to say               (1) [19591 Supp. 1 S.C.R. 806.                (2) (1869-71) 3 L.R. P.C. 560.                (3)  92 C.L.R. 157.               512               that they were regarded by many authorities as               proper incidents of the Legislative  function,               notwithstanding the fact that considered  more               theoretically-perhaps  one  might  even   say,               scientifically-they  belong  to  the  judicial               sphere.   But our decision is based  upon  the               ground that a general view of the Constitution               and   the  separation  of  powers  is  not   a



             sufficient  reason for giving to these  words,               which   appear  to  us  to  be  so  clear,   a               restrictive or secondary meaning which they do               not properly bear."(1) The  similarity  in the language of the  provisions  in  the Australian  Constitution and our Constitution  is  striking. It was said however that they were not the same for under s. 49  the  Australian Houses might by resolution  declare  the privileges  whereas  in our case the privileges  had  to  be defined  by  law  and  that  in  Australia  there  were   no fundamental rights.  I Confess I do not follow this argument at all.  The guestion is not how the privileges are declared in  Australia  or  what effect fundamental  rights  have  on privileges, but as to the meaning of the words which in  the two  statutes  are  identical.   In  Richard’s  case(1)   an application was made to the Judicial Committee for leave  to appeal  from the judgment of Dixon C.J. but such  leave  was refused, Viscount Simonds observing that the judgment of the Australian   High   Court  "is  unimpeachable":   Queen   v. Richards(1).   Reference  may also be made  to  Fielding  v. Thomas(1)  for  the interpretation of  a  similar  provision conferring the privileges of the Commons on the  Legislature of Nova Scotia in Canada.  It would, therefore, appear  that Art.  194(3) conferred on the Assembly the power  to  commit for contempt and it possessed that power. The  next  question is as to the privilege to  commit  by  a general warrant.  There is no dispute in England that if the House  of  Commons  commits by  a  general  warrant  without stating  the facts which constitute the contempt,  then  the courts  will not review that order(").  It was however  said on  behalf of the High Court that this power of the  English House  of Commons was -not one of its privileges but it  was possessed by that House because it was a superior court and, therefore,  that power, not being a privilege, has not  been conferred  on the State Legislatures by Art. 194(3)  of  our Constitution.  It is not claimed by the Assembly that it  is a  superior court and has, therefore, a power to commit  for contempt  by  a general warrant.  I would  find  nothing  to justify such a claim if it had been (1) 92 C.L.R. 157,                (2) 92 C.L.R. 157. (3) 92 C.L.R. 157,171.           (4) [1896] A.C. 600. (5)  See Burdett v. Abbot 3 E. R. 1289; May’s  Parliamentary Practice 16th ed. p. 173 513 made.  This takes me to the question, is the power to commit by  a general warrant one of the privileges of the House  of Commons,  or, is it something which under the common law  of England that House possessed because it was a superior court ? I find no authority to support the contention that the power to   commit  by  a  general  warrant  with  the   consequent deprivation  of  the jurisdiction of the Courts  of  law  in respect  of that committal is something which the  House  of Commons  had because it was a superior court.  First,  I  do not think that the House of Commons was itself ever a court. The   history  of  that  House  does  not  support  such   a contention.  Before proceeding further I think it  necessary to observe that we are concerned with the privileges of  the House  of  Commons  as a separate body  though  no  doubt  a constituent  part of the British Parliament  which  consists also  of  the King and the House of Lords.   The  privileges however  with  which we are concerned are  those  which  the House  of Commons claims for itself alone as an  independent body  and  as  apart from those possessed by  the  House  of Lords.   Indeed it is clear that the privileges of  the  two



Houses  are not the same: May Ch.  III.  It may be  that  in the  early  days  of English history the  Parliament  was  a court.  The House of Commons, however, does not seem to have been  a  part of this Court.  In medieval  times  the  legal conception  was that the King was the source of all  things; justice was considered to flow from him and, therefore,  the court of justice was attached to the King.  The King’s Court thus  was a court of law and that is the origin of  what  is called  "the High Court of Parliament".  The history of  the High  Court  of Parliament has been summarised  in  Potter’s Outlines of English Legal History (1958 ed.) and may be  set out  as follows : The King’s Council, under its older  title of Curia Regis, was the mother of the Common law courts, but still retained some judicial functions even after the common law  courts  had  been  well-established.  (p.  78).   Later however  in the 14th and 15th centuries it came to  be  held that appeals from the King’s Bench lay to the Parliament and not to the Council.  But Parliament had a great deal of work to  do and could find little time for hearing  petitions  or even  for hearing rules of Error from the King’s  Bench  and this  jurisdiction fell into abeyance in the  15th  century. It  would appear, however, that of this Parliament,  Commons were  no part.  In 1485 it was held by all the  Judges  that the jurisdiction in Error belonged exclusively to the  House of  Lords  and  not  to  the  whole  Parliament.   Professor Holdsworth  states in explanation of this fact that  it  was not  quite forgotten that the jurisdiction was to  the  King and his Council in Parliament whereas the Commons were 514 never  part  of  his Council, the King  in  his  Council  in Parliament meaning only the King and the House of Lords;  p. 95.   It  is  also interesting to point out  that  when  the Commons deliberated apart, they sat in the chapter-house  or the  refectory  of  the  Abbot  of  Westminster;  and   they continued  their sittings in that place after  their  final, separation;  May p. 12.  The separation referred to  is  the separation  between  the  House of Lords and  the  House  of Commons.   It may also be pointed out that when it  is  said that  laws  in England are made by the King  in  Parliament, what happens is ’that the Commons go to the Bar of the House of Lords where the King either in person, or through someone holding a commission from him, assents to an Act.  All  this would  show  that  the House of Commons when it  sits  as  a separate body it does not sit in Parliament.  So sitting  it is  not  the  High  Court of Parliament.   I  wish  here  to emphasise  that  we  are in this  case  concerned  with  the privileges of the House of Commons functioning as a separate body,  that is, not sitting in Parliament.  May observes  at p. 90, "Whether the House of Commons be, in law, a court  of record, it would be difficult to determine:" In Anson’s  Law of the Constitution, 5th ed.  Vol.  1 at p. 197, it has been stated that "Whether or not the House of Commons is a  court of  record,  not only has it the same  power  of  protecting itself  from  insult  by commitment for  contempt,  but  the Superior Courts of Law have dealt with it in this matter  as they would with one another, and have accepted as conclusive its  statement that a contempt has been  committed,  without asking  ’What that contempt may have been." I think in  this state  of the authorities it would at least be hazardous  to hold that the House of Commons was a court of record.  If it was  not, it cannot be said to have possessed the  power  to commit  for its contempt by a general warrant as a court  of record. I  now  proceed  to state how this right  of  the  House  of Commons  to commit by a general warrant has been dealt  with



by  authoritative textbook writers in England.  At  p.  173, after  having discussed the tussle between the  Commons  and the  Courts  in regard to the privileges of the  former  and having  stated that in theory there is no way  of  resolving the  real point at issue should a conflict between  the  two arise.   May  observes, "In practice however there  is  much more  agreement  on the nature and principles  of  privilege than the deadlock on the question of jurisdiction would lead one to expect." He then adds, "The courts admit :- (3)  that the control of each House, over its internal proceedings  is absolute  and cannot be interfered with by the  courts.  (4) That  a  committal  for  contempt by  "either  House  is  in practice within its exclusive jurisdiction, since the 515 facts  constituting the alleged contempt need not be  stated on the warrant of committal." So May treats the right of the House  of Commons to commit by a general warrant as  one  of its  privileges  and not something to which it  is  entitled under  the common law as of right as a Court of Record.   In Cases on Constitutional Law by Keir and Lawson, (4th ed.) p. 126, it is stated that among the undoubted privileges of the House  of  Commons is "the power of executing  decisions  on matters of privilege by committing members of Parliament, or any  other individuals, to imprisonment for contempt of  the House.   This  is  exemplified in the  case  of  Sheriff  of Middlesex."  That is a case where the House of  Commons  had committed the Sheriff of Middlesex for contempt by a general warrant,  the Sheriff having in breach of the orders of  the House  carried  out an order of the King’s  Bench  Division, which he was bound to do and that Court held that it had  no jurisdiction to go into the question of the legality of  the committal  by the House : see Sheriff of  Middlesex(1).   In Halsbury’s  Laws  of England, Vol. 28 p. 467, it  is  stated that the Courts of law will not enquire into the reasons for which a person is adjudged guilty of contempt and  committed by either House by a warrant which does not state the causes of his a.-rest. This observation is made in dealing with the conflict  between  the  House  of  Commons  and  the  courts concerning the privileges of the former and obviously treats the  power  to issue a general warrant as a  matter  of  the privilege  of the House.  Lastly, in Dicey’s  Constitutional Law (10th ed.) at p. 58 in the footnote it is stated.               "Parliamentary  privilege has from the  nature               of  things never been the subject  of  precise               legal definition.  One or two points are worth               notice as being clearly established.               (1)   Either  House of Parliament  may  commit               for  contempt;  and  the courts  will  not  go               behind  the  committal and  enquire  into  the               facts   constituting  the   alleged   contempt               provided that the cause of the contempt is not               stated." I thus find that writers of undoubted authority have treated this  power  to  commit  by  a  general  warrant  with   the consequent  deprivation  of  the  court’s  jurisdiction   to adjudicate on the legality of the imprisonment, as a  matter of privilege of the House and not as a right possessed by it as a superior court. I  now proceed to refer to recent decisions of the  Judicial Committee  which  a  also put the right  of  the  House.  of Commons to com- (1)  113 E.R. 419. 516 mit  by a general warrant on the ground of  privilege.   The first case which I will consider is Glass’s(1) case.   There



the  Legislative  Assembly of the Colony of  Victoria  by  a general  warrant committed Glass to prison for contempt  and the  matter was brought before the court on a habeas  corpus petition.  I have earlier stated that under certain statutes the Assembly claimed the Same privileges which the House  of Commons  possessed.  The Supreme Court of Victoria  held  in favour of Glass.  The matter was then taken to the  Judicial Committee and,it appears to have been argued there that "the privilege  is  the  privilege  of  committing  for  contempt merely; that the judging of contempt without appeal, and the power of committing by a general Warrant, are mere incidents or accidents applicable to this Country, and not transferred to  the  Colony."  The  words  "this  Country"  referred  to England.   Lord  Cairns  rejected  this  argument  with  the following  observations:  "The ingredients  of  judging  the contempt,  and committing by a general Warrant, are  perhaps the  most important ingredients in the privileges which  the House of Commons in this Country possesses; and it would  be strange  indeed if, under a power to transfer the  whole  of the  privileges  and powers of the House  of  Commons,  that which   would   ,only  be  a  part,  and   a   comparatively insignificant  part,  of  this  privilege  and  power   were transferred." (p. 573).  He also said, (p. 572) "Beyond  all doubt,  one of the privileges and one of the most  important privileges  of  the  House of Commons-is  the  privilege  of committing for contempt and incidental to that privilege, it has,  as has already been stated, been  well-established  in this Country that the House of Commons have the right to  be the  .judges themselves of what is contempt, and  to  commit for that contempt by a Warrant, stating that the  commitment is  for contempt of the House generally, without  specifying what the character of the contempt is.  It would, therefore, almost  of  necessity follow, that the  Legislature  of  the Colony having been permitted to carry over to the Colony the privileges, immunities, and powers of the House of  Commons, and  having  in terms carried over all  the  privileges  and powers exercised by the House of Commons at the date of  the Statute, there was carried over to the Legislative  Assembly of the Colony the privilege or power of the House of Commons connected  with contempt-the privilege or power, namely,  of committing  for  contempt,  of judging  itself  of  what  is contempt,  and  of  committing for  contempt  by  a  Warrant stating  generally  that  a contempt had  taken  place."  In Richard’s case (2) the power to commit by a general  warrant was  considered  as  a  privilege  of  the  House  and   the observations of Lord Cairns (1)  (1869-71) L.R. 3 P.C. 560. (2) 92 C.L.R. 157. 517 in Glass’s(1) case were cited in support of that view.  As I have  already  said  this view was upheld  by  the  Judicial Committee : Queen v. Richard (2).  It is of some interest to note  that Dixon C.J. was of the opinion, as I have  earlier shown,  that  the power to commit  was  scientifically  more properly  a judicial power but nonetheless he found that  it was  a  privilege  technically so called  of  the  House  of Commons and so transferred to the Australian Houses by s. 49 of  the  Australian Constitution Act of 1901.   It  is  also necessary to state here that this case was of the year  1955 and  shows  that the view then held was that  the  right  to commit by a general warrant was a privilege of the House.  I am pointing out this only because it has been suggested that even  if it was a privilege. it had been lost by  desuetude. These cases show that that is not so.  Fielding v. Thomas(") also takes the same view.



It  was  said that the decisions of the  Judicial  Committee were  not binding on us.  That may be so.  But then  it  has not been shown that they are wrong and, therefore, they  are of value at least as persuasive authorities.  The fact  that the  decisions of the Judicial Committee are not binding  on us  as  judgments  of  a superior court  is  however  to  no purpose.  The real question for our decision is whether  the House  of  Commons possessed a certain  privilege.   We  may either  have  to take judicial notice of that  privilege  or decide  its  existence as a matter of foreign  law.   It  is unnecessary  to  decide which is the correct view.   If  the former,  under s. 57 of the Evidence Act a reference to  the authorised law reports of England would be legitimate and if the  latter, then again under s. 38 of that Act a  reference to  these reports would be justified.  So in either case  we are entitled to look at these reports and since they contain decisions  of one of the highest Courts in England,  we  are not  entitled to say that what they call a privilege of  the House of Commons of their country is not a privilege  unless other  equally  high  authority taking a  contrary  view  is forthcoming. I  now  come  to  some of the English  cases  on  which  the proposition that the right to commit by a general warrant is not  a  matter of privilege of the House of  Commons  but  a right  which  it  possessed as a superior  court  is,  as  I understood  the  argument of learned advocate for  the  High Court,  based.  I will take the cases in order of date.   It will  not be necessary to refer to the facts of these  cases and it should suffice to state that each of them dealt  with the  right  of the House of Commons to commit by  a  general warrant.  First, there is Burdett v. Abbot(4).In this  case, in the first court judg- (1) (1869-71) L.R. 3 P.C, 560,     (2) 92 C.L.R. 171. (3) [1896] A.C. 600.                (4) 104 E.R. 501. 518 ments were delivered by Ellenborough C.J. and Baylay J. With regard  to this case, Anson in his book at p. 189 says,  "It is  noticeable  that in the case of Burdett v.  Abbot  while Bayley  J.  rests the claim of the House to  commit  on  its parity  of  position with the Courts  of  Judicature.   Lord Ellenborough  C.J. rests his decision on the broader  ground of  expediency,  and the necessity of such a power  for  the maintenance of the dignity of the House." Ellenborough C.J., therefore,  according  to Anson, clearly does not  take  the view that the House of Commons is a court and all that  Bay- ley  J.  does,  according to him, is to  put  the  House  of Commons in parity   with a Superior Court.  If the House  of Commons was a court,     there,  of course, was no  question of putting it in parity with one.  There was an appeal  from this judgment to the House of Lords     and  in that  appeal after  the close of the arguments, Lord Eldon L.C.  referred the  following question to the Judges for their  advice,  16 Whether,  if the Court of Common Pleas, having  adjudged  an act  to  be  a  contempt of Court,  had  committed  for  the contempt   under  a  warrant,  stating   such   adjudication generally  without  the particular  circumstances,  and  the matter  were  brought before the Court of King’s  Bench,  by return to a writ of habeas cot-pus. the return setting forth the   warrant,   stating  such  adjudication   of   contempt generally;  whether in that case the Court of  King’s  Bench would  discharge the prisoner, because the particular  facts and circumstances, out of which the contempt arose, were not set forth in the warrant": Burdett v. Abbot(1).  The  Judges answered the question in the negative.  Upon that Lord Eldon delivered  his judgment with which the other members of  the



Court  agreed,  stating that the House of  Commons  had  the power  to commit by a general warrant.  I am unable to  hold that this case shows that Lord Eldon came to that conclusion because the House of Commons was a superior court.  It seems to  me  that Lord Eldon thought that the  House  of  Commons should be treated the same way as one superior court treated another  and wanted to find out how the courts treated  each other.   I shall later show that this is the view which  has been  taken of Lord Eldon’s decision in other cases.  But  I will now mention that if Lord Eldon had held that the  House of  Commons was a court, a constitutional lawyer of  Anson’s eminence  would  not have put the matter in the way  that  I have just read from his work. Then  I come to the case of Stockdale v.  Hansard(2).   That case was heard by Lord Denman C.J., Littledale J.,  Patteson J. and Coleridge J. Lord Denman said, (p. 1168), (1) 3 E.R. 1289.      (2)112 E. R. 11 12. 519               "Before  I finally take leave of this head  of               the  argument,  I will dispose of  the  notion               that the House of Commons is a separate Court,               having   exclusive   jurisdiction   over   the               subject-matter, on which, for that reason, its               adjudication  must  be  final.   The  argument               placed  the House herein on a level  with  the               Spiritual  Court and the Court  of  Admiralty.               Adopting  this  analogy, it appears to  me  to               destroy  the defence attempted to the  present               action  .... we are now enquiring whether  the               subject-matter    does   fall    within    the               jurisdiction  of the House of Commons.  It  is               contended that they can bring it within  their               jurisdiction  by  declaring it  so.   To  this               claim,  as  arising from their  privileges,  I               have already stated my answer: it is perfectly               clear  that  none of these Courts  could  give               themselves jurisdiction by adjudging that they               enjoy it." Clearly  Lord Denman did not proceed on the basis  that  the Commons  was  a court.  In fact he refers to the  right  "as arising  from  this privilege." Then I  find  Littledale  J. observing  at p. 1174: "But this proceeding in the House  of Commons  does  not  arise on adverse claims;  there  are  no proceedings  in  the  Court; there is  no  Judge  to  decide between the litigant parties; but it is the House of Commons who  are the only parties making a declaration of what  they say belongs to them." So Littledale J. also did not consider the Commons as a court.  Then came Patteson J. who stated at p. 1185, "The House of Commons by itself is not the court of Parliament".  Then again at p. 1185 he observes:               "I  deny that mere resolution of the House  of               Lords .... would be binding upon the Courts of               Law.......  much less can a resolution of  the               House  of  Commons, which is not  a  Court  of               Judicature  for the decision of  any  question               either   of  law  or  fact  between   litigant               parties,  except in regard to the election  of               its  members,  be binding upon the  Courts  of               Law."               Lastly I come to Coleridge J. He stated at  p.               1196:               "But it is said that this and all other Courts               of Law are inferior in dignity to the House of               Commons,  and that therefore it is  impossible               for us to review its decision.  This  argument



             appears to me founded on a misunderstanding of               several  particulars; first, in what sense  it               is that this Court is inferior to the House of               Commons;  next  in what sense the House  is  a               Court at all."               S.C.I./65-8               520               Then at p. 1196 he stated :               "In truth, the House is not a Court of Law  at               all, in the sense in which that term can alone               be properly applied here; neither  originally,               nor  by  appeal,  can it decide  a  matter  in               litigation  between  two parties;  it  has  no               means  of doing so; it claims no  such  power;               powers  of enquiry and of accusation  it  has,               but  it  decides  nothing  judicially,  except               where  it  is itself a party, in the  case  of               contempts.   As to them no question of  decree               arises between Courts;" The observations of Coleridge J. are of special significance for  the  reasons hereafter to appear.  It is  obvious  that neither Patteson J. nor Coleridge J. thought that the  House of Commons was a Court or possessed any powers as such. Next  in  order  of  date is the  case  of  the  Sheriff  of Middlesex(1).  Lord Denman, C.J. said at p. 426:               "Representative   bodies   must    necessarily               vindicate  their authority by means  of  their               own;  and  those means lie in the  process  of               committal  for contempt.  This applies not  to               the  Houses  of Parliament only, but  [as  was               observed in Burdett v. Abbot (14 East,  138)],               to  the Courts of Justice, which, as  well  as               the  Houses,  must  be  liable  to   continual               obstruction  and  insult  if  they  were   not               entrusted with such powers.  It is unnecessary               to discuss the question whether each House  of               Parliament  be or be not a Court; it is  clear               that   they  cannot  exercise   their   proper               functions  without  the  power  of  protecting               themselves against interference.  The test  of               the authority of the House of Commons in  this               respect, submitted by Lord Eldon to the Judges               in Burdett v. Abbot (5 Dow, 199) was  whether,               if  the Court of Common Pleas had adjudged  an               act  to be a contempt of Court, and  committed               for  it, stating the  adjudication  generally,               the Court of King’s Bench, on a habeas  corpus               setting forth the warrant, would discharge the               prisoner  because the facts and  circumstances               of  the contempt were not stated.  A  negative               answer  being  given,  Lord  Eldon,  with  the               concurrence  of Lord Erskine (who  had  before               been   adverse   to  the   exercise   of   the               jurisdiction), and without a dissentient voice               from  the House, affirmed the judgment  below.               And we must presume that               (1)   113 E.R. 419,               521               what any Court, much more what either House of               Parliament,  acting on great legal  authority,               takes upon it to pronounce a contempt, is so." This  observation would support what I have said  about  the judgment of Lord Eldon in Burdett v. Abbot(1).  Denman  C.J. did  not  think  that Lord Eldon  considered  the  House  of Commons to be a Court for he himself found it unnecessary to



discuss  that question.  The basis why he thought  that  the House  of  Commons  must possess the right to  commit  by  a general warrant was one of expediency and of confidence in a body of that stature.  Coleridge J. observes at p. 427,               "It  appears by precedents that the  House  of               Commons have been long in the habit of shaping               their warrants in that manner.  Their right to               adjudicate  in this general form in  cases  of               contempt  is  not founded  on  privilege,  but               rests  upon  the same grounds  on  which  this               Court  or  the  Court of  Common  Pleas  might               commit for a contempt without stating a  cause               in  the commitment.  Lord Eldon puts the  case               in  this  manner in Burdett v. Abbot  (5  Dow,               165, 199)." Great reliance is placed on this observation of Coleridge J. but I think that is due to a misconception.  Coleridge J. at p.  427 expressly affirms all that had been said by him  and the  other  Judges in Stockdale v. Hansard(2).   As  I  have earlier  shown, he had there said that "in truth, the  House is  not a Court of Law at all." Therefore when he said  that the right to adjudicate in the general form was not  founded on privilege, whatever he might have meant, he did not  mean that  it was founded on the House of Commons being a  court. I  think  what he meant was that it was a  right  which  the House  of Commons had to possess in order to  discharge  its duties properly and, therefore, not something conceded to it as  a sign of honour and respect.  He might also have  meant that the power was not something peculiar to the House as it was  also  possessed by the courts for the  same  reason  of expediency,  and, therefore, it was not a privilege, a  term which  has  been used in the sense of  something  which  the Parliament  possessed and which exceeded those possessed  by other bodies or individuals : Cf.  May 42. Then  comes  the case of Howard v. Gossett(3).  It  will  be enough  to refer to the judgment of the Court  of  Exchequer Chamber in appeal which begins at p. 158.  That judgment was delivered by Parke B. who observed at p. 171: (1) 3 E.R. 1289.                      (2) 112 E.R. 1112. (3)  116 E.R. 139. 522 .lm15 "the warrant of the Speaker is, in our opinion, valid, so as to  be  a  protection to the officer of the  House,  upon  a principle  which, as it applies to the process and  officers of every Superior Court, must surely be applicable to  those of the High Court of Parliament and each branch ofit." Here  again  the House is treated as being entitled  to  the same  respect as a superior court, but it is not being  said that the House is a superior court. Lastly, I come to Bradlaugh v. Gossett(1) in which at p. 285 Stephen  J.  said, "The House of Commons is not a  Court  of justice."  I am unable to see how these authorities  can  be said  to  hold  that the power of the House  of  Commons  to commit by a general warrant is possessed by it because it is a superior court. It  was  then  said that even if the right to  commit  by  a general warrant cannot be said to have been possessed by the House  of  ,Commons  because  it  was  superior  court,  the observations in the cases on the subject, including those to which  I  have already referred, would  establish  that  the right  springs  from some rule of comity of  courts,  or  of presumptive evidence or from an agreement between the courts of law and the House or lastly from some concession made  by the  former  to the latter.  I at once  observe  that  these



cases  do  not support the contention and no  text-book  has taken  the view they do or that the right is anything but  a privilege.  The contention further seems to me to be clearly fallacious and overlooks the basic nature of a privilege  of the  House of Commons.  I have earlier stated the nature  of the privilege but I will repeat it here.  All privileges  of the House of Commons are based on law.  That law is known as lex  Parliamenti.   Hence privileges are matters  which  the House  of  Commons possesses as of right.  In  Stockdale  v. Hansard(2) all the Judges held that the rights of the  House of  Commons are based on lex Parliamenti and that  law  like any  other  law, is a law of the land which the  courts  are entitled to administer. Now if the privilege of committing by a general warrant,  is a  right  enforceable in law which belongs to the  House  of Commons,  it  cannot be a matter controlled by the  rule  of comity  of courts.  Comity of courts is only a  self-imposed restraint.   It  is  something which the court  on  its  own chooses  not to do.  It is really not a rule of law at  all. It creates no enforceable right.  A ’right’ to the privilege cannot be based on it.  Besides there is no question of (1) (1884) L.R. 12 Q.B.D. 271. (2) 112 E.R. 11 12. 523 comity of courts unless there are two courts, each extending civility  or consideration to the other.  Here we  have  the House of Commons and the courts of law.  The former is not a court and the latter needs no civility or consideration from the  House  for its proper functioning.  Here  there  is  no scope of applying any principle of comity of courts. Next  as to the privilege being really nothing more  than  a rule  of presumption that a general warrant of the House  of Commons imprisons a person legally, so that the question  of the  legality  of the committal need not be  examined  by  a court  of  law,  I  suppose  it  is  said  that  this  is  a presumption which the law requires to be made.  If it is not so,  then  the  right  of the  House  would  depend  on  the indulgence  of  the judge concerned and,  therefore,  be  no right at all.  That cannot be, nor is it said that it is so. What  then ? If it is a presumption of law, what is the  law on  which the presumption is based ? None has  been  pointed out  and  so  far as I know, none exists unless  it  be  lex Parliamenti.  Once that is said, it really becomes a  matter of  privilege for the lex Parliamenti would not  create  the presumption  except for establishing a privilege.   A  right created  by  lex Parliamenti is a privilege.   This  I  have earlier said in discussing the nature of privileges. Lastly,  has the right its origin in agreement  between  the House  of Commons and the courts of law, or in a  concession granted  by  the  latter to the former ?  This  is  a  novel argument.   I have not known of any instance where a  right, and  therefore, the law on which it is based, is created  by an agreement with courts.  Courts do not create laws at all, least   of  all  by  agreement;  they  ascertain  them   and administer them.  For the same reason, courts cannot  create a  law  by concession.  A court has no right  to  concede  a question  of law unless the law already exists.  I  find  it impossible to imagine that any parliamentary privilege which creates an enforceable right could be brought into existence by agreement with courts or by a concession made by them. Before I part with the present topic I will take the liberty of observing that it is not for us to start new ideas  about the privileges of the House of Commons, ideas which had  not ever  been imagined in England.  Our job is not to start  an innovation as to privileges by our own researches.  It would



be  unsafe to base these novel ideas on odd observations  in the  judgments  in  the English cases,  torn  out  of  their context and in disregard of the purpose for which they  were made.   What  I have quoted from these cases will  at  least make  one  pause and think that these cases can  furnish  no sure  foundation for a novel theory as to the right  of  the House of 524 Commons to commit by a general warrant.  Researches into old English  history  are  wholly out of place  in  the  present context   and   what  is  more,  are  likely  to   lead   to misconceptions.  To base our conclusion as to the privileges on  researches  into  antiquities, will  furthermore  be  an erroneous procedure for the question is what the  privileges of  the  House  of Commons were recognised to  be  in  1950. Researches into the period when these privileges were taking shape  can afford no answer to their contents and nature  in 1950.   The  question can be answered only  by  ascertaining whether  the  right  under  discussion  was  treated  as   a privilege  of the House of Commons by authoritative  opinion in England in the years preceding 1950.  I then come to the conclusion that the right to commit  for contempt   by   a  general  warrant  with   the   consequent deprivation of jurisdiction of the courts of law to  enquire into that committal is a privilege of the House of  Commons. That  privilege  is,  in my view, for  the  reasons  earlier stated, possessed by the Uttar Pradesh Assembly by reason of Art. 194(3) of the Constitution. It is then said that even so that privilege of the  Assembly can be exercised only subject to the fundamental rights of a citizen  ,guaranteed by the Constitution.  That takes me  to Sharma’s  case(1) As I read the judgment of the majority  in that  case, they seem to me to hold that the  privileges  of the House of Commons which were conferred on the Houses of a State  Legislature  by  Art. 194(3),  take  precedence  over fundamental  rights.  The facts were these.  A House of  the Bihar  Legislature which also had made no law  defining  its privileges under Art. 194(3), had directed certain parts  of its proceedings to be expunged but notwithstanding this  the petitioner  published a full account of the  proceedings  in his  paper  including  what  was  expunged.   A  notice  was thereupon issued to him by the House to show cause why steps should not be taken against him for breach of privileges  of the House.  The privilege claimed in that case was the right to prohibit publication of its proceedings.  The petitioner, the Editor of the paper, then filed a petition under Art. 32 of  the  Constitution  stating that the  privilege  did  not control  his  fundamental right of freedom of  speech  under Art. 19 (1) (a), and that, therefore, the House had no right to take proceedings against him.  He also disputed that  the House of Commons had the privilege which the Bihar  Assembly claimed.   The  majority held that the House  possessed  the privilege to prohibit the publication of its proceedings and that privilege was not subject to the fundamental right of a citizen under Art. (1)  [1959] Supp. 1 S.C.R. 806. 525 19  (1)(a).  Subba Rao J., took a dissentient view and  held that fundamental rights take precedence over privileges  and also  that  the  House  did not  possess  the  privilege  of prohibiting  the publication of its proceedings.   With  the latter  question we are not concerned in the  present  case. In the result Sharma’s(1) petition was dismissed. On  behalf of the High Court two points have been  taken  in regard  to this case.  It was first said that  the  majority



judgment required reconsideration and then it was said  that in  any  event, that judgment only held that  the  privilege there claimed took precedence over the fundamental right  of the freedom of speech and not that any other privilege  took precedence  over fundamental rights.  I am unable to  accept either of these contentions. On behalf of the Assembly it has been pointed out that in  a reference  under  Art. 143 we have no  jurisdiction  to  set aside an earlier decision of this Court, for we have to give our  answers  to  the questions referred on the  law  as  it stands and a decision of this Court so long as it stands  of course  lays  down the law.  I am unable to  say  that  this contention is idle.  It was said on behalf of the High Court that in In re.  Delhi Laws Act(1) a question arose whether a decision  of the Federal Court which under our  Constitution has the same authority as our decisions, was right.  It  may be  argued  that this case does not help, for  the  question posed,  itself required the reconsideration of  the  earlier judgment.  I do not propose to discuss this matter  further, for I do not feel So strongly in favour of the contention of the  Assembly  that  I should differ from  the  view  of  my learned brothers on this question. I  feel  no doubt, however, that the  majority  judgment  in Sharma’s  case(1)  was perfectly correct when it  held  that privileges  were not subject to fundamental rights.  I  have earlier  set out the first three clauses of Art.  194.   The first clause was expressly made subject to the provisions of the Constitution-whatever the provisions contemplated  were- while  the third clause was not made so subject.   Both  the majority  and  the minority judgments are  agreed  that  the third  clause cannot, therefore, be read as if it  had  been expressly  made subject to the provisions of  the  Constitu- tion.  For myself, I do not think that any other reading  is possible.   Clause  (3)  of Art. 194 thus  not  having  been expressly  made  subject  to the  other  provisions  of  the Constitution,  how  is a conflict between it and  any  other provisions of the Constitution which may be found to  exist, to be resolved ? The majority held that the (1) [1959] Supp. 1. S.C.R. 806. (2) [1951] S.C.R. 747. 526 principle  of harmonious construction has to be applied  for reconciling  the  two  and  Art.  194(3)  being  a   special provision  must take precedence over the  fundamental  right mentioned  in Art. 19(1) (a) which was a general  provision: (p.  860).   Though  Subba Rao J. said  that  there  was  no inherent  inconsistency  between Art. 19 (1)  (a)  and  Art. 194(3),  he  nonetheless  applied  the  rule  of  harmonious construction.  He felt that since the legislature had a wide range  of powers and privileges and those privileges can  be exercised  without  infringing the fundamental  rights,  the privilege  should  yield  to the  fundamental  right.   This construction,  he  thought,  gave full effect  to  both  the articles:  (pp. 880-1).  With great respect to  the  learned Judge, I find it difficult to follow how this interpretation produced  the result of both the articles having effect  and thus achieving a harmonious construction. Ex  facie there is no conflict between Arts. 194(3)  and  19 (1)  (a), for they deal with different matters.  The  former says  that the State Legislatures shall have the powers  and privileges of the English House of Commons while Art. 19 (1) (a)  states  that every citizen shall have full  freedom  of speech.   The conflict however comes to the surface when  we consider  the  particular  privileges  claimed  under   Art. 194(3).   When Art. 194(3) says that the State  Legislatures



shall have certain privileges, it really incorporates  those privileges in itself.  Therefore, the proper reading of Art. 194(3) is that it provides that the State Legislatures have, amongst other privileges, the privilege to prohibit publica- tion  of any of its proceedings.  It is only then  that  the conflict  between Arts. 194 (3) and 19 (1) (a) can be  seen; one  restricts a right to publish something while the  other says all things may be published.  I believe that is how the articles  were read in Sharma’s case(1) by all  the  Judges. If they had not done that, there would have been no question of  a conflict between the two provisions or of  reconciling them. Now if Art. 19 (1) (a) is to have precedence, then a citizen has  full  liberty  to publish whatever  he  likes;  he  can publish  the proceedings in the House even though the  House prohibited  their publication.  The result of  that  reading however  is to wipe out that part of Art. 194(3) which  said that  the State Legislatures shall have power and  privilege to  prohibit  publication of their  proceedings.   That  can hardly be described as harmonious reading of the provisions, a  reading which gives effect to both provisions.  It  is  a reading  which  gives effect to one of  the  provisions  and treats the other as if it did not exist. (1)  [1959] Supp.  1 S.C.R. 806. 527 It  is true that if Art. 19(1) (a) prevailed, it  would  not wipe  out all the other privileges of the House  of  Commons which had to be read in Art. 194(3).  Thus the right of  the House to exclude strangers remained intact even if the right to prohibit publication of proceedings was destroyed by Art. 19  (1) (a).  But this is to no purpose as there  never  was any conflict between the right to exclude strangers and  the freedom of speech and no question of reconciling the two  by the rule of harmonious construction arose.  When one part of a provision alone is in conflict with another provision, the two are not reconciled by wiping out of the statute book the conflicting  part  and saying that the two  provisions  have thereby been harmonised because after such deletion the rest of  the first and the whole of the second operate.   We  are concerned  with  harmonising two conflicting  provisions  by giving both the best effect possible and that is not done by cutting  the gordian knot by removing the  conflicting  part out of the statute. I agree that in view of the conflict between Art. 194(3) and Art.  1  9  ( 1 ) (a), which arises in  the  manner  earlier stated,  it has to be resolved by  harmonious  construction. As  I  understand  the  principle, it  is  this.   When  the Legislature-here  the  Constitutionmakers-enacted  both  the provisions they intended both to have effect.  If per chance it  so happens that both cannot have full effect,  then  the intention of the legislature would be best served by  giving the  provisions  that interpretation which  would  have  the effect  of giving both of them the most efficacy.   This,  I believe,  is  the principle behind the  rule  of  harmonious construction.   Applying that rule to Sharma’s  case(1),  if the  privilege claimed by the Legislature under Art.  194(3) of  prohibiting  publication of proceedings was  given  full effect,  Art.  19  (1) (a) would not be  wiped  out  of  the Constitution completely, the freedom of speech guaranteed by the last mentioned article would remain in force in  respect of  other matters.  If, on the contrary Art. 19 (1) (a)  was to have full effect, that is, to say, a citizen was to  have liberty to say and publish anything he liked, then that part of  Art.  194(3)  which says that  the  House  can  prohibit publication  of its proceedings is completely destroyed,  it



is  as if it had never been put in the,Constitution.   That, to  my mind, can hardly have been intended or be the  proper reading of the Constitution.  I would for these reasons  say that  the  rule  of  harmonious  construction  supports  the interpretation  arrived  at  by  the  majority  in  Sharma’s case(1). Subba Rao J. gave another reason why he thought that  funda- mental rights should have precedence over the privileges  of the (1)  [1959] Supp.  1 S.C.R. 806. 528 Legislature  and on this also learned counsel for  the  High Court  relied in the present case.  Subba Rao J.  said  that that  part of Art. 194(3) under which the State  Legislature claimed the same privilege as those of the House of  Commons in  England, which has been called the second part  of  this clause, was obviously a transitory provision because it  was to have effect until the Legislature made a law defining the privileges as the Constitution-makers must have intended  it to do.  He added that if and when the Legislature made  that law  that would be subject to the fundamental rights and  it would  be strange if provisions which were  transitory  were read  as  being  free  of those  rights.   The  majority  in Sharma’s  case(1) no doubt said without any discussion  that the  law  made  under Art. 194(3) would be  subject  to  all fundamental  rights.   Learned  advocate  for  the  Assembly however   contended  before  us  that  that  view  was   not justified.   In the present case it seems to me it makes  no difference whatever view is taken.  Assume that the law made by  a Legislature defining its privileges has to be  subject to  fundamental  rights.  But that will be so  only  because Art.  13 says so.  Really the law made under Art. 194(3)  is not  to  be  read  as subject  to  fundamental  rights;  the position  is  that  if  that law is  in  conflict  with  any fundamental  right, it is as good as not made at all.   That is the effect of Art. 13.  The argument that since the  laws made under Art. 194(3) are subject to fundamental rights, so must the privileges conferred by the second part of cl.  (3) be, is therefore based on a misconception.  Article 13 makes a  law  bad  if it conflicts with  fundamental  rights.   It cannot  be  argued that since Art. 13 might make  laws  made under cl. (3) of Art. 194 void, the privileges conferred  by the  second part of that clause must also be void.   Article 13  has  no application to a provision in  the  Constitution itself.    It  governs  only  the  laws  made  by  a   State Legislature  which Art. 194(3) is not.  Therefore, I do  not see  why  it  must  be held that  because  a  law  defining- privileges  if  made,  would be void  if  in  conflict  with fundamental  rights,  the privileges  incorporated  in  Art. 194(3)-1 have already said that that is how the second  Dart of  Art. 194(3) has to be read-must also have been  intended to  be subject to the fundamental rights.  If such  was  the intention, cl. (3) would have started with a provision  that it  would be subject to the Constitution.  The fact that  in cl.  (1  )  the words ’subject to  the  provisions  of  this Constitution’ occur while they are omitted from cl. (3) is a strong indication that the latter clause was not intended to be  so subject.  Furthermore, that could not have  been  the intention because then the privilege with which the  present case  is  concerned,  namely, to commit for  contempt  by  a general 1.   [1959] Supp.  1 S.C.R. 806. 529 warrant without the committal being subjected to the  review of the court, would be wiped out of the Constitution for the



fundamental  right  required  that  the  legality  of  every deprivation of liberty would be examinable in courts. It was also said that fundamental rights are transcendental. I  do  not  know  what  is  meant  by  that.   If  they  are transcendental that must have been because the  Constitution made  them so.  The Constitution no doubt by Art.  13  makes laws made by the Legislatures subject to fundamental rights, but  I  do not know, nor has it been pointed out to  us,  in what other way the Constitution makes the fundamental rights transcendental.   We  are  not entitled  to  read  into  the Constitution  things which are not there.  We are  certainly not  entitled  to  say  that a  specific  provision  in  the Constitution  is  to have no effect only because  it  is  in conflict with fundamental rights, or because the latter  are from   their   nature,  though  not   expressly   made   so, transcendental. Then as to the second part of Art. 194(3) being  transitory, that  depends  on what the intention  of  the  Constitution- makers was.  No doubt it was provided that when the law  was made by the Legislature under the first part of Art.  194(3) the  privileges  of the House of Commons enjoyed  under  the latter  part of that provision would cease to be  available. But  I do not see that it follows from this that the  second part  was  transitory.  There is nothing to  show  that  the Constitution-makers  intended  that the  Legislature  should make its own law defining its privileges.  The Constitution- makers  had before them when they made the  Constitution  in 1950,  more  or less similar provisions  in  the  Australian Constitution  Act,  1901 and they were  aware  that  during, fifty  years, laws had not been made in  Australia  defining the  privileges of the Houses of the Legislatures there  but the Houses had been content to carry on with the  privileges of  the  House  of  Commons  conferred  on  them  by   their Constitution.  With this example before them I have no  rea- son to think that our Constitution-makers, when they made  a similar  provision  in our Constitution,  desired  that  our Legislatures should make laws defining their own  privileges and  get  rid  of the privileges of  the  House  of  Commons conferred on them by the second part of Art. 194(3). 1 think it right also to state that even if the rights conferred  by the  second part of Art. 194(3) were transitory, that  would not justify a reading the result of which would be to delete a part of it from the Constitution. It  is  necessary to notice at this stage that  in  Ganupati Keshav  Ram  Reddy v. Nafisul Hassan(1) his Court  held  the arrest of (1)  A.I.R. 1954 S.C.636 530 a citizen under the Speaker’s order for breach of  privilege of the Uttar Pradesh Assembly without producing him before a magistrate  as required by Art. 22 (2) of  the  Constitution was  a violation of the fundamental right  mentioned  there. Reddy’s  case(1)  states no reason in support  of  the  view taken.   Subba Rao J., though he noticed  this,  nonetheless felt bound by it.  The majority did not do so observing that the decision there proceeded on a concession by counsel.  In this  Court  learned Advocate for the High Court  said  that there was no concession in the earlier case.  I notice  that Das  C.J."  who delivered the judgment of  the  majority  in Sharma’s  case(1)  was a member of the Bench  which  decided Reddy’s  case(1).  If the decision in Reddy’s  case(-’)  was not  by  concession at least in the sense that  the  learned advocate  was unable to advance any argument to support  the contention  that privilege superseded fundamental right,  it would  be  strange that the point was not discussed  in  the



judgment.  However all this may be, in view of the fact that it does not seem from the judgment to have been contended in Reddy’s case(1) that the second part of Art. 194(3)  created privileges  which  took  precedence  over  the   fundamental rights, as the judgment does not state any reason in support of  the view taken, for myself I have no difficulty  in  not following  Reddy’s  case(1) especially as  the  majority  in Sharma’s case(1) did not follow it. It  was also said that the privileges were only intended  to make   the  Legislatures  function  smoothly   and   without obstruction.  The main function of the Legislatures, it  was pointed  out, was the making of laws and the object  of  the privileges  was  to  assist in the  due  discharge  of  that function.   It  was  contended that if the laws  made  by  a Legislature,  for the making of which it  primarily  exists, are  subject  to  fundamental rights,  it  is  curious  that something which is ancillary to that primary function should be  free  of them.  I find nothing strange. in  this.   Laws made  by  a Legislature are subject  to  fundamental  rights because  the Constitution says so.  The privileges  are  not subject  because  they  are conferred  by  the  Constitution itself and have neither been made so subject nor found on  a proper interpretation to be such.    I believe I have now discussed all the reasons advanced in support  of the view that the majority decision in  Sharma’s case (2) was erroneous.  As I have said, I am not  persuaded that these  reasons are    sound. C. 636.                  (2) [1959] Supp.  1 S.C.R. 806. 531 In  R.  K.  Karanjia v. The  Hon’ble  Mr.  M.  Anantasayanam lyyangar, Speaker, Lok Sabha (W.P. No. 221 of 1961 unreport- ed), which was a petition under Art. 32 of the Constitution, a  Bench  of  seven  Judges  of  this  Court  was  asked  to reconsider  the  Correctness  of the  majority  decision  in Sharma’s  case(1)  but  it considered that  decision  to  be correct and refused to admit the petition.  This is  another reason  for  holding that Sharma’s case  (1)  was  correctly decided. I  now  come  to the other  contention  concerning  Sharma’s case(1).   It was said that all that the  majority  judgment held  in  that case was that the  privilege  of  prohibiting publication of its proceedings conferred on a Legislature by the  second part of cl. (3) of Art. 194 was not  subject  to the  fundamental  right of freedom of speech  guaranteed  by Art.  19 (1) (a) It was pointed out that that case  did  not say  that all the privileges under the second part  of  Art. 194(3)  would take precedence over all  fundamental  rights. It  was  stressed  that Das C.J.  dealt  with  the  argument advanced in that case that Art. 21 would be violated by  the exercise  of  the  privilege  of the  House  to  commit  for contempt by stating that there would be no violation of Art. 21 as the arrest would be according to procedure established by  law because the arrest and detention would be  according to  rules of procedure framed by the House under  Art.  208. It  was contended that the majority therefore held that  the fundamental  right  guaranteed by Art. 21  would  take  pre- cedence over the privilege to commit. This  contention  is  also not acceptable  tome.   No  doubt Sharma’s  case(-’) was concerned with the  conflict  between Art.  19  (1) (a) and the privilege of the House  under  the second  part of Art. 194(3) to prohibit publication  of  its proceedings  and, therefore, it was unnecessary to refer  to the  other fundamental rights.  The reason,  however,  which led  the majority to hold that the conflict between the  two had  to  be resolved by giving precedence to  the  privilege



would  be available in the case of a conflict  between  many other  privileges  and many other fundamental  rights.   Now that  reason was that to resolve the conflict, the  rule  of harmonious construction had to be applied and the result  of that would be that fundamental rights, which in their nature were  general,  had to yield to the  privileges  which  were special.  The., whole decision of the majority in that  case was  that  when  there was a conflict  between  a  privilege created by the second part of Art. 194(3) and a  fundamental right,  that conflict should be resolved by harmonising  the two.  Tne decision would apply certainly to the conflict (1)  [1959] Supp.  1 S.C.R. 806. 532 between the privilege of committal to prison for contempt by a general warrant without the validity of that warrant being reviewed  by  a  court of law  and  the  fundamental  rights guaranteed  by Arts. 21, 22 and 32.  The  majority  judgment would  be authority for holding that the conflict should  be solved  by a harmonious construction.  Indeed that  was  the view  of  the minority also.  The difference was as  to  the actual construction. Das  C.J. no doubt said that there was no violation of  Art. 21  in Sharma’s case(1) because the deprivation  of  liberty was according to procedure established by law.  That was, to my mind, only an alternative reason, for he could have dealt with that point on the same reason on which he said that the fundamental  right under Art. 19 (1) (a) must yield  to  the privilege  of  the  House to  prohibit  publication  of  its proceedings,  namely,  by  the application of  the  rule  of harmonious  construction.   He could have said by  the  same logic  that  he  used earlier, that  the  fundamental  right guaranteed  by  Art.  21 was general and  the  privilege  to detain  by  a general warrant was a  special  provision  and must,  therefore,  prevail.   I am unable to  hold  that  by dealing with the argument based on Art. 21 in the manner  he did, Das C.J. held that the fundamental right under Art.  21 took precedence over the privilege of committal by a general warrant  which  the Legislature possessed under  the  second part of cl. (3) of Art. 194.  If he did so, then there would be no reason why he should have held that fundamental  right of  freedom of speech should yield to the House’s  privilege to stop publication of its proceedings.  Another reason  for saying  that  Das  C.J.  did not  hold  that  Art.  21  took precedence over the privilege to commit by a general warrant is  the fact that he held that Reddy’s case(1)  was  wrongly decided.   That  case had held that Art. 22  had  precedence over  the privilege of committal.  If Art. 22 did  not  have precedence,  as  Das C.J. must have held since  he  did  not accept the correctness of Reddy’s case(2), no more could  he have  held  that  Art. 21 would  have  precedence  over  the privilege to commit for contempt. Some  reference was made to cls. (1) and (2) of Art. 194  to show  that  Sharma’s case (1) decided that Art. 19  (1)  (a) alone had to yield to the privilege conferred by the  second part  of  cl. (3) of Art. 194, but I do not think  that  the majority  decision in Sharma’s case(1) was at all  based  on those clauses.  These clauses, it will be remembered,  dealt with freedom of speech in the House.  Das C.J., referred  to them only because some arguments, to which it is unnecessary now to refer, had been advanced on the basis of these (1) [1959] Supp.  1 S.C.R. 806. (2) A.I.R. 1954 S.C. 636. 533 clauses for the purpose of showing that the privileges  were subject to the fundamental right of freedom of speech.  Both



the  minority  and  the majority judgments  were  unable  to accept  these arguments.  Indeed the question in  that  case concerned the power to affect a citizen’s freedom of  speech outside  the  House  and cls. (1) and  (2)  only  deal  with freedom  of speech of a member in the House itself and  with such freedom that case had nothing to do. In this Court some  discussion took place as to the  meaning of the words "subject to the provisions of thein cl. (1) of Art. 194. These words can, in my view, only refer    to the provisions of the Constitution laying down the procedureto be observed in the House for otherwise cls. (1) and (2) will conflict with each other.  I will now make a digression  and state  that  learned advocate for the Assembly  pointed  out that in Art. 194 the Constitution makers treated the liberty of speech of a member differently by expressly providing for it in cls. (1) and (2) and by providing for other privileges that is, privileges other than that of the freedom of speech -in the House, in cl. (3).  He said that the reason was that if  the freedom of speech in the House was conferred by  cl. (3)  it would be controlled by law made by  the  legislature and  then the party in power might conceivably destroy  that freedom.   The intention was that the freedom of  speech  in the House should be guaranteed by the Constitution itself so as to be beyond the reach of any impairment by any law  made by  the  legislature.  I think that is the only  reason  why that  freedom was treated separately in the Constitution  in cls. (1) and (2) of Art. 194.  Therefore those clauses  have nothing to do with the case in hand.  Nor had they  anything to  do  with the decision in Sharma’s case.  ’Me  result  is that  in my judgment Sharma’s case covers the  present  case and cannot be distinguished from it. For the reasons earlier stated I come to the conclusion that when there is a conflict between a privilege conferred on  a House  by the second part of Art. 194(3) and  a  fundamental right,  that conflict has to be resolved by harmonising  the two  provisions.   It  would  be  wrong  to  say  that   the fundamental  right must have precedence over  the  privilege simply  because it is a fundamental right or for  any  other reason.   In  the present case the conflict is  between  the privilege of the House to commit a person for contempt with- out that committal being liable to be examined by a court of law and the personal liberty of a citizen guaranteed by Art. 21  and the right to move the courts in enforcement of  that right  under Art. 32 or Art. 226.  If the right to move  the courts  in  enforcement of the fundamental  right  is  given precedence, the privilege which provide,% 534 that  if a House commits a person by a general warrant  that committal would not be reviewed by courts of law, will  lose all its effect and it would be as if that privilege had  not been  granted to a House by the second part of Art.  194(3). This,  in  my  view, ,cannot be.  That being  so,  it  would follow that when a House commits a person for contempt by  a general warrant that person would have no right to  approach the  courts  nor can the courts sit in  judgment  over  such order  of committal.  It is not my intention to  state  that there may not be exceptions to the rule but I do not propose to enter into discussion of these exceptions, if any, in the present  ,case.   The existence of those exceptions  may  be supported  by the observations of Lord Ellenborough C.J.  in Burdett  v. Abbot(1).  May at p. 159 puts the  matter  thus: "Lord  Ellenborough  C.J., left open  the  possibility  that cases  might arise in which the courts would have to  decide on the validity of a committal for contempt where the  facts displayed  in the return could by no reasonable  interpreta-



tion be considered as a contempt". I  think  I have now sufficiently discussed the law  on  the subject  and may proceed to answer the questions  stated  in the order of -reference.               Question No. 1.-Whether, on the facts and cir-               cumstances  of the case, it was competent  for               the  Lucknow Bench of the High Court of  Uttar               Pradesh.   consisting  of  the  Hon’ble   Shri               Justice N. U. Beg and the Hon’ble Shri Justice               G.  D. Sahgal, to entertain and deal with  the               petition of Shri Keshav Singh challenging  the               legality  of  the  sentence  of   imprisonment               imposed  upon him by the Legislative  Assembly               of  Uttar  Pradesh for its  contempt  and  for               infringement  of  its privileges and  to  pass               orders  releasing  Shri Keshav Singh  on  bail                             pending the disposal of his said petit ion. This  question  should, in my opinion, be  answered  in  the affirmative.   The Lucknow Bench was certainly competent  to deal  with  ,habeas corpus petitions  generally.   The  only point raised by the Assembly is that it has no  jurisdiction to deal with such petitions when the detention complained of is  under a general warrant issued by the Speaker.  But  the Lucknow  Bench  had  to find out whether  the  detention  of Keshav Singh was by such a warrant before it could throw out the  petition  on the ground of want  of  jurisdiction.  The petition did not show that the detention was under a general warrant.   That would have appeared when the Speaker of  the Assembly and the jailor who were respondents to the petition made (1)  (1811) 14 East I. 152: 104 E.R. 501. 535 their  return.   That stage had not come  when  the  Lucknow Bench  dealt with the petition and made orders on it.   Till the  Lucknow  Bench  was  apprised  of  the  fact  that  the detention complained of was under a general warrant, it  had full competence to deal with the petition and make orders on it.  It was said that the order for bail was illegal because in law release on bail is not permitted when imprisonment is for  contempt.   I do not think this is a fit  occasion  for deciding that question of law for even if the order for bail was  not justifiable in law that would not otherwise  affect the  competence  of the Bench to make the order.  I  do  not suppose this reference was intended to seek an answer on the question  whether  in  a habeas corpus  petition  where  the imprisonment  is for contempt, the law permits a release  on bail..               Question No. 2.-Whether, on the facts and cir-               cumstances  of the case, Shri Keshav Singh  by               causing  the petition to be presented  on  his               behalf  to the High Court of Uttar Pradesh  as               aforesaid,  Shri  B.  Solomon,  Advocate,   by               presenting the said petition and the said  two               Hon’ble  Judges  by entertaining  and  dealing               with  the  said  petition  and  ordering   the               release  of Shri Keshav Singh on bail  pending               disposal   of  the  said  petition   committed               contempt of the Legislative Assembly of  Uttar               Pradesh. The first thing I observe is that the question whether there is  a  contempt  of  the Assembly is  for  the  Assembly  to determine.  If that determination does not state the  facts, courts of law cannot review the legality of it.  Having made that observation, I proceed to deal with the question.



The question should be answered in the negative.  I  suppose for  an  act to amount to contempt, it has not  only  to  be illegal but also wilfully illegal.  Now in the present  case it does not appear that any of the persons mentioned had any knowledge that the imprisonment was under a general warrant. That  being  so,  I  have  no  material  to  say  that   the presentation of the petition was an illegal act much less  a wilfully illegal act.  No contempt was, therefore, committed by the Hon’ble Judges or B. Solomon or Keshav Singh for  the respective  parts  taken  by them  in  connection  with  the petition.               Question No. 3.-Whether on the facts and  cir-               cumstances  of the case, it was competent  for               the  Legislative Assembly of Uttar Pradesh  to               direct the production of the said two  Hon’ble               Judges and Shri B. Solomon,                   Sup.C.I./65-9               536               Advocate, before it in custody or to call  for               their explanation for its contempt; It  will be remembered that, according to the recitals,  the resolution  of March 21, 1964 which directed the  production of  the  Hon’ble  Judges in custody  stated  that  they  had committed  contempt of the House by what  they  respectively did in connection with Keshav Singh’s petition of March  19, 1964  and that the Assembly disputes that the resolution  so provided.   We  have however to answer the question  on  the facts  as  stated  in the order of  reference  and  have  no concern with what may be the correct facts.  For one  thing, it  would  not  be competent for the Assembly  to  find  the Hon’ble  Judges  and  B. Solomon to be  guilty  of  contempt without  giving  them a hearing.  Secondly, in  the  present case  I  have already shown that they were  not  so  guilty. That  being  so, it was not competent for  the  Assembly  to direct  their production in custody.  It has to  be  noticed that  in  the  present case the Assembly  had  directed  the production  of  the Hon’ble Judges not for  the  purpose  of hearing  them on the question of contempt but on  the  basis that  they  had committed a contempt.   It  is  unnecessary, therefore,  to discuss the question of the privilege of  the House to "cause persons to be brought in custody to the  Bar to   answer   charges  of  contempt".   See   May   p.   94. Furthermore,  the  Assembly had modified its  resolution  to have  the  Judges, Solomon and Keshav  Singh  brought  under custody  and  asked only for explanation  from  the  Hon’ble Judges  and  B.  Solomon  for  their  conduct.    Therefore, strictly  speaking,  the  question as to  bringing  them  in custody before the House does not arise on the facts of  the case. As to the competence of the Assembly to ask for  explanation from the two Judges and B. Solomon, I think it had.  That is one  of  the privileges of the House.  As it  has  power  to commit  for contempt, it must have power to ascertain  facts concerning contempt.               Question No. 4.-Whether, on the facts and cir-               cumstances  of the case, it was competent  for               the  Full  Bench of the High  Court  of  Uttar               Pradesh   to  entertain  and  deal  with   the               petitions  of the said two Hon’ble Judges               and  Shri  B. Solomon, Advocate  and  to  pass               interim orders restraining the Speaker of  the               Legislative  Assembly  of  Uttar  Pradesh  and               other  Respondents to the said petitions  from               implementing  the aforesaid direction  of  the               said Legislative Assembly;



I  would answer the question in the affirmative.   The  Full Bench  had  before  it petitions by the two  Judges  and  B. Solomon 537 complaining  of the resolution of the Assembly finding  them guilty of contempt.  I have earlier stated that on the facts of  this case, they cannot be said to have been  so  guilty. It  would follow that the Full Bench had the power  to  pass the interim orders that it did.               Question  No.  5.-Whether a Judge  of  a  High               Court who entertains or deals with a  petition               challenging   any  order  or  decision  of   a               Legislature   imposing  any  penalty  on   the               petitioner or issuing any process against  the               petitioner    for   its   contempt   or    for               infringement of its privileges and  immunities               or  who  passes  any order  on  such  petition               commits  contempt of the said Legislature  and               whether  the said Legislature is competent  to               take  proceedings against such a Judge in  the               exercise   and  enforcement  of  its   powers,               privileges and immunities. This  is  too  general a question and is not  capable  of  a single, answer; the answers would vary as the  circumstances vary,  and  it is not possible to imagine all  the  sets  of circumstances.  Nor do I think we are called upon to do  so. As learned advocates for the parties said, this question hag to  be answered on the facts of this case.  On  those  facts the question has to be answered in the negative. I  propose now to refer to an aspect of the case on which  a great deal of arguments had been addressed at the bar.  That concerns  the  liability of a Judge for contempt.  If  I  am right  in  what  I  have  said  earlier,  a  judge  has   no jurisdiction to interfere with a commitment by a House under a  general warrant.  If he makes an order  which  interferes with  such  a  commitment,  his  action  would  be   without jurisdiction.   It  would then be a  nullity.   Any  officer executing that order would be interfering with the committal by the House and such interference would be illegal  because the  order is without jurisdiction and hence a nullity.   If the House proceeded against him in contempt, a Court of  Law could not, in any event, have given him any relief based  on that  order.   It may be that the Judge by  making  such  an order would be committing contempt of the House for by it he would  be interfering with the order of the House  illegally and  wholly without jurisdiction.  The question  however  to which  I  wish now to refer is whether the  judge,  assuming that he has committed contempt, can be made liable for it by the House.  In other words, the question is-, has the  Judge immunity against action by the House for contempt  committed by  him ? If his order was legal, then, of course, he  would not have committed contempt and question of immunity for him would not arise. 538 It  was said on behalf of the High Court that even  assuming that  a Judge can commit contempt of a House, he  has  fully immunity.   This  was  put  first  on  the  scheme  of   the Constitution which, it was said, favoured complete  judicial independence.   It  was  next pointed  out  that  under  our Constitution Judges cannot be removed from office except  by the  process of impeachment under Art. 124(4), that  is,  by the order of the President upon an address by each House  of Parliament  supported by a certain majority.   Reliance  was then placed on Art. 211 of the Constitution which  prohibits discussion  in the Legislature of the conduct of a Judge  in



the  discharge  of  his duties and it  was  said  that  this indicated  that  a  Judge cannot  be  liable  for  contempt, because  to  make  him  so liable  his  conduct  has  to  be discussed.   It was however conceded that Art. 211  did  not give an enforceable right in view of Art. 194(2) but it  was said  to indicate the intention of  the  Constitution-makers that a Judge is to be immune from liability for contempt  of the Assembly. The  correctness  of  these contentions  was  challenged  on behalf  of  the  Assembly.   With regard  to  the  point  of judicial independence, it was said that it would hardly have been intended that a Judge should have immunity even  though he  deliberately  committed  contempt of a  House.   It  was pointed  out that the contempt would be deliberate,  because the  Judge would know that in the case of a general  warrant he had no jurisdiction to proceed further. As  regards  the  argument based on  the  irremovability  of Judges except in the manner provided, it was said that  that had  nothing  to  do with immunity  for  contempt.   It  was pointed  out  that  the  Constitution  provided  for   State autonomy  and  it could not have been intended that  when  a Judge  committed contempt of a State Legislature,  the  only remedy  of  that  body  would be  to  approach  the  Central Parliament  with a request to take steps for the removal  of the Judge.  That would, also seriously impair the dignity of the State Legislature.  The grant of relief, in such a  case would depend on the sweet-will of the Central Parliament and relief  would be unlikely to be obtained  particularly  when the  parties in power in the State and. the Centre, were  as might  happen, different.  The irremovability of the  Judges was  not, it was said, intended to protect their  deliberate wrongful  act but only to secure their independence  against illegal  interference  from  powerful  influences.   It  was argued  that  the  immunity of a Judge would  also  put  the officers of the court who would be bound to 539 execute  all  his  orders,  in  a  helpless  and  precarious condition, for they have to carry out even illegal orders of the  Judges  and thereby expose themselves to  the  risk  of punishment  legitimately  imposed by an  Assembly.   It  was lastly said that if independence of the Judges was necessary for the good of the country, so was the independence of  the Legislatures. In  regard to Art. 211, it was observed that it did  not  at all  indicate  an  intention that the Judges  would  not  be liable  for  contempt  committed by  themselves.   Its  main object,  it  was  contended, was to permit  the  freedom  of speech  guaranteed  by  Art. 194(1) to be  restrained  in  a certain  manner.  Furthermore, it was pointed out that  Art. 211  would not bar a discussion unless it was first  decided that  that discussion related to the conduct of a  Judge  in the discharge of his duties, a decision which would often be difficult to make and in any case the decision of the  House would  not be open to question in a court of law, for it  is one of the privileges of the House of Commons which a  State Legislature  has  obtained  under Art. 194(3)  that  it  has absolute control of its internal proceedings: (see Bradlaugh v. Gosset).  On all these grounds it was contended that  our Constitution  did not confer any immunity on a Judge for  an admitted contempt committed by him.  It was pointed out that in  England judicial officers, including Judges of  superior courts, did not have that immunity and reference was made to Jay v. Topham(1) and case of Brass Crossby(2). I am not sure that I have set out all the arguments on  this question  but what I have said will give a fair idea of  the


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competing  contentions.  For the purpose of this case, I  do not  think  it  necessary to go into  the  merits  of  those contentions.   The questions that arise on the facts of  the reference  can, in my view, be answered without  pronouncing on  the  question of immunity of Judges.  It is  often  much better  that theoretical disputes should be allowed  to  lie buried  in learned tracts and not be permitted to  soil  our daily  lives.  It would not require much strain to avoid  in practice  circumstances which give rise to  those  disputes. In England they have done so- and there is no reason why  in our  country  also that would not happen.  I  strongly  feel that it would serve the interest of our country much  better not to answer this question especially as it has really  not arisen.  I do hope that it will never arise. (1) 12 Howell’s State Trials 82 1. (2) 19 Howell’s State Trials 1138. 540 I think it right to mention that Mr. Verma appearing for the Advocate-General of Bihar raised a point that this reference was incompetent or at least should not be answered.  He said that a reference can be made, by the President only when  he needed the advice of this Court with regard to  difficulties that  he  might feel in the discharge of  his  duties.   Mr. Verma’s  contention was that the questions in the  reference related  to matters which did not concern the  President  at all.  He said that the advice given by us on this  reference will  not solve any difficulty with which the President  may be  faced.   On the other side, it was  contended  that  the President  might consider the amendment of the  Constitution in the light of the answers that he might receive from  this Court.  Mr. Verma replied to this answer to his argument  by saying  that  it  was  not for  the  President  to  consider amendments  of  the  Constitution and that it  was  not  the object  of Art. 143 that this Court should be consulted  for the  purpose of initiating legislation.  I am unable to  say that Mr. Verma’s contention is wholly unfounded but I do not propose  to  express  an opinion on  that  question  in  the present case. Before I conclude, I must say that I feel extremely  unhappy that the circumstances should have taken the turn that  they did  and that the reference to this Court by  the  President should  have  been rendered necessary.  With a  little  more tact, restraint and consideration for others. the  situation that  has arisen could have been avoided.  I feel  no  doubt that Beg and Sahgal JJ. would have dismissed the petition of March 19, 1964 after they had possession of the full  facts. I  regret that instead of showing that restraint  which  the occasion   called   for,  particularly  as  the   order   of imprisonment  challenged was expressly stated to  have  been passed by a body of the stature of the Assembly for contempt shown to it, a precipitate action was taken.  No doubt there was  not  much time for waiting but Keshav Singh  could  not force  the hands of the Court by coming at the last  moment. The  result  of  the  order of the  Hon’ble  Judges  was  no interfere with a perfectly legitimate action of the Assembly in,  a case where interference was not justifiable  and  was certainly avoidable.  On the other hand, the Assembly  could have also avoided the crisis by practising restraint and not starting  proceedings against the Judges at once.  It  might have  kept in mind that the Judges had difficult  duties  to perform, that often they had to act on imperfect  materials, and  errors  were,  therefore,  possible.   It  could   have realised  that when it placed the facts before  the  Judges, its   point  of  view  would  have  been   appreciated   and appropriate orders


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541 made to undo what had been done in the absence of full mate- rials.   Such an action of the Assembly would have  enhanced its stature and prestige and helped a harmonious working  of the different organs of the State. I  wish  to add that I am not one of those who feel  that  a Legislative  Assembly  cannot be trusted  with  an  absolute power of committing for contempt.  The Legislatures have  by the  Constitution  been expressly entrusted with  much  more important  things.   During  the  fourteen  years  that  the Constitution  has been in operation, the  Legislatures  have not  done  anything  to justify the view that  they  do  not deserve  to be trusted with power.  I would point  out  that though  Art. 211 is not enforceable, the  Legislatures  have shown  an  admirable spirit of restraint and have  not  even once in all these years discussed the conduct of Judges.  We must  not lose faith in our people, we must not  think  that the  Legislatures would misuse the powers given to  them  by the  Constitution  or  that  safety  lay  only  in  judicial correction.  Such correction may produce friction and  cause more harm than good.  In a modem State it is often necessary for  the  good of the country that  parallel  powers  should exist  in different authorities.  It is not inevitable  that such  powers will clash.  It would be defeatism to take  the view that in our country men would not be available to  work these  powers  smoothly  and in the best  interests  of  the people  and  without producing friction.  I  sincerely  hope that  what  has  happened will never happen  again  and  our Constitution  will be worked by the different organs of  the State  amicably, wisely, courageously and in the  spirit  in which the makers of the Constitution expected them to act. 542