PANDIT M. S. M. SHARMA v. SHRI SRI KRISHNA SINHA AND OTHERS

Citation: [1959] SUPP. 1 S.C.R. 806; 1958 INSC 116

Court: Supreme Court of India

Bench: SUDHI RANJAN DAS , NATWARLAL HARILAL BHAGWATI, BHUVNESHWAR PRASAD SINHA, K. SUBBA RAO, K.N. WANCHOO

Judgment date: 1958-12-12

Case summary

1958 INSC 116. Supreme Court of India judgment dated 1958-12-12. PANDIT M. S. M. SHARMA v. SHRI SRI KRISHNA SINHA AND OTHERS. Read the judgment and case...

Judgment text

806 SUPREME COURT REPORTS [1959] Supp. •958 the Punjab Government would have authority to D. s. Ga. ew•I institute the enquiry against him. The Central v. Government would only come into the picture after Th• S•••• of the enquiry is concluded and if it is decided to impose Punj•b c;. Another one of the three punishments mentioned in r. 4(1). Wanchoo J. This contention must also be rejected. We, therefore, dismiss the ·appeal with costs to the State of Punjab. Appeal dismissed.. PANDIT M. S. M. SHARMA v. SHRI SRI KRISHNA SINHA AND. OTHERS (S. R. DAS, c. J. , N. H. BHAGWATI, B. P. SINHA, K. SUBBA RAO and K. N. W ANOHOO, JJ. ) State Legislature, Privilege of-Pawer to prohibit publication of proceedings including portions -expunged by the SPeaker-Publi· cation, if a breach of privilege-If can prevail over tM fundamental right to freedom of speech and expression-Freedom of the Press- Scope and extent-Constitution of India, Arts. z94(3), z9(z)(a). The petitioner, the.

Editor of the English daily newspaper Searchlight of Patna, was called upon by the Secretary of the Patna Legislative Assembly to show cause before the Committee of Privileges of the Assembly why appropriate action should not be taken against him for the breach of privileges of the Speaker and the Assembly for publishing in its entirety a speech. deliver- ed in the Assembly by a member thereof, portions of which were directed to be expunged by the Speaker. It was contended on behalf of the Petitioner that the said notice and the proposed action by the Committee were in violation of his fundamental right to freedom of speech and expression under Art. l9(1)(a) and of the protection of his personal liberty under Art. 21 of the Constitution, and that, as an editor of a newspaper, he was en- titled to all the benefits of the freedom of the Press. The respondents relied on Art.

194(3) of the Constitution llnd claim- ed that the proceedings in the House as those in the British House of Commons were not usually meant to be published, and in no circumstances was it permissible to publish the parts of a (1) S. C. R. SUPREME COURT R~PORTS 807 I speech which were directed to be expunged and, therefore; form- r958 ed no part of the official report and such publication was iri clear breach of the privileges of the Assembly. The points for Pandit determination were: M. s. M. Sharma (I) Could the British House of Commons entirely prohibit v. the publication of its proceedings or even of such port ons of Shri Sri Krishna them as had been directed to be expunged ? Sinha and Others (2) Assuming that the British House of Commons ha:d such power and consequently the State Legislature also had such power under Article 194(3), could the privileges of the Legi~lature under that Article prevail over the fundamental right guarante- ed by Art. 19(1)(a)?

The Bihar Legislature not having admittedly made amy law governing its powers and privileges under Entry 39 of List. JI of the Seventh Schedule to the Constitution, the question naiturally was as to what were the powers, privileges and immunities of the British House of Commons at the commencement ·of the Constitution. Held(per Das, C. J. , Bhagwati, Sinha and Wanchoo, ]]. ) that, there could be no doubt that the liberty of the Pr~ss was implicit in the freedom of speech and expression guaranteed to a citizen under Art. 19(1)(a) of the Constitution and that must include the freedom of propagation of ideas ensured by the free- dom of circulation. Ramesh Thappar v. State of Madras, [1950] S. C. ~. 594, Brijbhushan v. The State of Delhi, [1950] S. C. R. 605 and 'Express Newspaper Ltd. v. Union of India, [1959] S. C. R. 12, relied on.

The liberty of the Press in India flowed from this freedom of speech and expression of a citizen and stood on no higher footing and no privilege attached to the Press as such. I Arnold v. King Emperor, (1914) L. R. 41 I. A. 149, referred to. A survey of the evolution of Parliamentary privileges in England showed beyond doubt that at the commencement of the Indian Constitution, the British House of Commons had the power or privilege of prohibiting the publication of evei;i a true and faithful report of the debates or proceedings that took place in the House, and with greater reason, the power and privilege of prohibiting publication of an inaccurate or garbled v~rsion of such debates and proceedings. These were the powers and privileges that Art. 194(3) conferred on State Legislatures and Art. 105(3) conferred on the Houses of Parliament in India. It would not be correct to contend that Art. 19(1)(a) of the Constitution controlled the latter half of Art. 194(31 or of Art.

105(3) of the Constitution and that the powers, privileges and immunities conferred by them must yield to the fund~mental right of the citizen under Art. l9(1)(a). As Arts. 194(3) and 105(3) stood in the same supreme position as the provisions of Part III of the Constitution and could not be affected by Art. 13, the principle of harmonious construction must be adopted. 808 SUPREME COURT REPORTS [1959] Supp. r958 So construed, the provisions of Art. r9(r)(a), which were general, must yield to Art. 194(1) and the latter part of its cl. (3), P•ndit which are special, and Art. l9(1)(a) could be of no avail to the 1\1. s. /II. Shanna petitioner. v. Rmnjilal v. I11come-tax Officer, Mohindergarh, (1951] S. C. R. Shri Sri r,·rishna 127 and Laxa11tanappa Hanuntantappa v. Union of India, [1955J Sinha a111l Others I S. C. R. ' 769, applied. Anand Bihari Mishra v. Ram Sahay, A. LR. (r952) M. B. 31, disapproved. Gimapati Keshavram Reddy v. Nafisul Hasan, A. LR. (1954) S. C.

636, explained as having proceeded on concession by counsel. Nor could the petitioner complain of any breach, actual or threatened, of his fundamental right under Art. 2r of the Con- stitution since Art. 194(3) read with the rules, framed by the Bihar Legislative Assembly in exercise of its power under Art. 208 of the Constitution, laid down the procedure for enforc- ing its po\vers, privileges and immunities under that Article and any deprivation of his personal liberty as a result of the proceed- ings before the Committee of Privileges \VOuld be in accordance with procedure established by law. Held, further, that it was not for this Court to prescribe any particular period for moving a privilege motion so as to make the subject matter of the motion a specific matter of recent occur- rence within the meaning of the said rules. This was a matter for the speaker alone to decide.

The time within which the Committee of privileges was to submit its report was a matter between the House and its Com- mittee and the party whose conduct was the subject-matter of investigation could have no say in the matter. The effect in law of the order of the Speaker to expunge a portion of the speech of a member might be as if that portion had not been spoken and a'report of the whole speech despite the speaker's order might be regarded as a perverted and unfaithful report and prima jacic constitute a breach of the privilege of the Assembly. Whether there had in fact been a breach of the pridlege of the Assembly was, however, a matter for the Assem- bly alone to judge. Per Subba Rao, ]. -The second part of Art. r94(3) was clearly a transitory provision and had no higher sancitity than that of the first. While a law when made by the State Legislature under the first part would, by virtue of Art.

r3(2), be void to the extent it contravened the provisions of r9(r)(a), unless saved by Art. r9(2), there could be no reason why the powers, privileges and immunities conferred under the second part should be free from the impact of the iundamental rights. As there was no inherent inconsistency between Arts. r9(r)(a) and the second part of Art. r94(3), full effect must be given to them both on the principle of harmonious construction. The (I) S. C. R. SUPREME COURT REPORTS 809 wide powers and privileges enjoyed by the Legislature and its r958 members should, therefore, be so exercisr,d as not to impa,ir the fundamental rights of the citizen, particularly of one wlfo was Pandit not a member of the Legislature. In case of a conflict, M. s. M. Sha,ma Art. l9(1)(a) must prevail over Art. 194(3) and not vice ver~a and v. the privilege must yield to the extent it affected the funda- Sh'i Sri Krishna mental right. Sinha and Olhus Gunupati Keshavram Reddy v. Nafisul Hasan, A. LR. \1954) S. C.

636, applied. At the commencement of the Constitution the House of Commons had no privilege to prevent the publication of a cprrect and faithful report of its proceedings, save those in respect of secret st:ssions held under exceptional circumstances, and had only a limited privilege to prevent mala fide publications of garbl- ed, unfaithful and expunged reports of the proceedings. In the instant case, neither the notices uor the documents enclosed therewith disclosed any mala fides on the part of the petitioper or that he had knowledge that any portion of the speech had been expunged by the Speaker. Consequently, even supposing Art. 194(3) prevailed over Art. l9(1)(a), the petitioner was en- titled to succeed. ! W asan v. Walter, (1868) L. R. 4 Q. B. 73, relied on. ORIGINAL JURISDICTION: Petition No. 122 ofl958. Petition under Article 32 of the Constitution of India for the enforcement of Fundamental rightE1. I 1958, Oct. 16, 17, 28, 29, 30.

Basdeva Prasad and N aunit Lal, for the petitioner :-The main question to be considered in the case is as to whose pi'ivileg~ has been involved and violated-those of the press or the House of the Legislature. Notice served on the.... JJ. peti- tioner by the Privileges Committee of the J:Sihar Assembly is illegal and invalid and the Constitution of the Privileges Committee is illegal as the Chief Minister of the State Dr. S. K. Sinha himself has been the Chairman of the Committee. On May 30. 1957, there was a debate in the Bihar Legislative Assembly when M. P. N. Singh, one of the oldest members of the Assembly, made a speech. the gist of which was a criticism of the administration of Bihar as run by Dr. S. K. Sinha, the Chief Minister, a. nd cited certain instances of favouritism. At• this stage the Speaker held that a portion of the speech was objectionable and ordered it to be struck off and expunged. It was a general statement. No specific 1o:i 810 SUPREME COURT REPORTS [1959jSupp.

direction was given to the Press. The opposite party Pandit was claiming the right to prohibit all publication of proceedings-a right which the House of Commons pos- M. S. M. Sharnia . h. h" b h v. sesses wit its own istory, ut never exercises it. T e SA. is,; K. ishna speech was made on May 30, 1957, and the official Si•ha ""d Othm authorised report was published and made available on January 2, 1958. 'The Search Light', being a daily newspaper, came out on May 31 with what happened in the 1 Assembly. A privilege motion was said to have been moved and referred to the Committee of Privileges; no voting was taken and no time limit was given for the presentation of the report which was required under the rules of the House. If no time limit was prescribed then under rule 215 the report was to be submitted within a month. It was after more than a year i. e.

on August 18, 1958, that the petitioner received a notice to show cause why appropriate action should not be taken against him for the breach of privilege. This showed malice on the part of the Privileges Committee. The action of the Privileges Committee raised con- . stitutional points affecting the petitioners' fundamental right of freedom of expression. The Legislature cannot have such a privilege as will deprive the citizens of their fundamental rights which are guaranteed by the Constitution, specially the right of freedom of expression under Art. 19(1) (a). In the actual motion the charge was that the speech was published in its entirety, "Jyon ka Tyon"; but the motion adopted by the Privileges Committee, the charge against the Editor was that he published a perverted and unfaithful report of the proceeding, and · the expunged portions of the speech was also published in derogation of the order of the Speaker. [Wanchoo, J.

-If the publication of expunged portions would make a report false, how could it be anything other than perverted and unfaithful? ] [Daphtary: It was unfaithful as it was not a true report, as portions expunged had also been published]. The reference was not by the House but by the Speaker. It was open to the petitioner to challenge the procedure, as one of the grounds of his objection (1) $. C. R. SUPREME COURT REPORTS 1 811 was that the motion was not put to vote. Important z 95 s questions arose as a result of the proceedings, dne of them being :- Pandit C C "tt "d d b Ch" f M" . t M. S M. Sharma an a· omm1 ee pres1 e over y a ie mis er v. who has such an interest in the matter as might 1 give Shri Sri Krishna him a real bias be deemed to be empowered to ¢arry Sinha and Others on the investigation and recommend punishment ? [Daphtary: I object to the use of the word' l)ias '. It is not supported by the petition or the plea]. The allegation of mala fide is much stronger than bias.

' [Chief Justice. -Art. 19(1) had granted fundamental rights against law made by the State. There w11re no fundamental rights against the Constitution itself. If the Constitution provided that the House shall have certain privileges then it was clear that there ctnnot be a question of fundamental rights against the Con- stitution. If the Constitution provided that the House shall have the privileges that so much shall bti pub- lished then Art. 19(1) will not prevail agains't the Constitution]. I rely on Amendment One of the American Constitu- tion on which the fundamental rights in Art. 19('1) are based. Cooley's "Constitutional Law" (P. 350). , Express Newspapers (Private) Ltd. v. Union of India, [1959] S. C. R. 12, 121. ' [Sinha, J. -In America people were more forthright in their views and opinions and that we could have better guidance from English precedents than' from American.

] Article 194 (3) which dealt with powers, privileges and immunities of the Legislatures were subject to the provisions of the Constitution. Article 194(3) cannot be said to abridge the provisions of Art. 19(1) . which guaranteed fundamental rights. Article 194(3) of the Constitution provided the procedure of the :$ritish House of Commons in regard to powers, privileges and immunities. Even then any power or privilege 1 which militated against the fundamental rights canrnot be deemed to be valid. The Legislature can follow the procedure of the British House of Commons, bht this 8l2 SUPREME OOURT REPORTS [1959] Supp. i958 privilege of legislature cannot go contrary to the fun- Pandil damental rights. If such a privilege is allowed, the M. s. M. Sharma Legislature would assume sovereignty as against the v. Constitution itself under the garb of privileges.

Shri Sri Krishna Even in England, the ban on the publication of the Sinha and O•hm proceedings in Parliament had ceased to exist in prac- tice after the 16th century. The proceedings of legislatures are open to the pub- lic and the citizens have a right to know whatever happens in the House and also to know as to how any portion of the proceedings is ordered to be expunged. The Blitz case Gunupati Keshavram Reddy v. Nafi- sul Hasan, A. I. R. 1954 S. C. 636 in which the Supreme Court ordered the release of a correspondent who had been arrested by the Speaker of tho U. P. Assembly in connection with breach of privilege. He was not produced before the Magistrate and on Habeas Corpus petition, he was released. Article 20 prevailed and it was established that Art. 194(3) could not go against Art. 20 guaranteeing a person's liberty. [Chief Justice. -If the privileges were given by the Constitution itself, then the question of fundamental rights does not come at all.

Article 19(1) is against law made by the State Government. Fundamental rights do not prevail against the Constitution. The counsel could take the stand that Bihar Legislative Assembly has not got tho powers which it claims. The question was whether the Assembly had such powers under the Constitution]. In England there was no written constitution. The House of Commons had claimed the right to prohibit publication but in fact and in actual practice never exercised that right. The American Constitution also granted foll freedom to publish the proceedings of the House including the expunged portions. That being so, it was for the Court to interpret Art. 194(3) harmo- niously with Art. 19(1) and the provisions of the for- mer had to be consistent with fqndamental rights granted under the Constitution. In England the Par- liament is supreme and there is no written constitu- tion, but here the Constitution is supreme. The right to expunge could be claimed only for the purpose of (1) S. C. R.

SUPREME COURT REPORTS 813 official record. They could not claim a total ptohibi- x9s 8 tion .. There was a c? mmon basis. for this in both Pandit American and English democratic systems. , The M. s. M. 511 . ,, 1114 people had the right to know as to what was happen- v. ing in the House to enable them to exercise, their Shri Sri K•ishna franchise properly. If people have a right to see and Sinha' antJ Olhm hear the proceedings, other people who are not able to be in the House have a right to know through publi- shed proceedings. Wason v. Walter, (1868) L. R. IV Q. B. 73, 95. (The counsel refers to the standing orders ~n the British House of Commons quoting May's Parliamen- tary Practice). Article 194(1) in its entirety was subject to the pro- visions of the Constitution and under Art. 19 to the provisions of the Constitution. If under Art. ' 194(3) the application of the House of Commons' laws pro- vided complete immunity, then it was impossible to continue the consistency of Art.

194(1) and Art. 194(3). Article 194(1) provided clearly that it was subject to the provisions of the Constitution in the ma~ter of freedom of speech, etc. , in the State Legislature. It was impossible to contend that Art. 194(3) was not $Ubject to the provisions of the Constitution. Under Art. 194(1) it was made clear that a member of the House of Legislature did not have the same immunity as had a member of the House of Commons who enjoyed complete freedom and had no restriction of whatever sort. Here Art. 194(1) made the freedom of speech in the House subject to the provision of the Constitution. [The Chief Justice. -It might be that one bf the immunities was singled out and made subject to the provisions of the Constitution]. Privileges and rights of the House of Commons extended also to elections. The power of the House of Commons to fix its own elections could not be cha. llenged in a tribunal or a court.

Here in India, elections were held under a separate authoriey pro- vided by the Constitution under Ch. XV and such elections could be challenged and appealed against in the High Court, tribunals, etc. In England, tlJ,e vali- dity of an election was to be determined by the House 814 SUPREME COURT REPORTS [1959] Supp. r958 of Commons itself or its tribunal. Such a privilege could not be claimed by a House of Legislature here. Pandit M. s. M. sh .. ma [The Chief Justice. -Here we had powers, privile- v. ges and immunities which may be prescribed by law Sh'i 5,; K•ishna by legislation under Art. 194(3) and it was Part XV >inha and Oehm in the Constitution which provided for elections. It showed that powers, privileges and immunities had been separated and dealt with separately]. The whole scheme of the Constitution had to be taken into account. The reasonable interpretation of Art. 194(3) was that, like Art.

194(1) it was also in its entirety made subject to the provisions of the Consti- tution. The next point was that the Chief Minister could not be the Chairman of the Committee of Privileges with quasi- judicial powers to summon witness and demand pro f the I I Pandit M. S M. Sharma v Shri Sri /(rishna Sinha 'nd Others 816 SUPREME COURT REPORTS [1959] Supp. powers and privileges and the defence and assertion of any of the imi;nunities involved, were a breach of fun- damental rights or were something contrary to funda- mental rights, even then the powers and the privileges were good. They could not be considered bad as offending those rights. It was not open for someone to come and say that there was no such power and immunity when such powers and immunities were provided under Art. 194(1) and was made part of the Constitution. Every citizen had been given the right of freedom of speech by the Constitution.

A member of the House of a Legislature also enjoys that freedom by virtue of being a citizen. Only rules and regula- tions made in excess of legislative powers could be questioned and not the powers themselves. Then there was the question of amendment of the Constitu- tion which was not affected by fundamental rights. The result would be that by amendments of the Con- stitution fundamental rights could be modified or re- moved. That was what was done by amendments in Arts. 3l(a) and 3l(b) where the rights were modified. Article 194 was. put there in the Constitution by the framers simultaneously with other provisions. It there- fore had an equal footing with other provisions of the Constitution and unless expressly stated in the provi- sion itself could not be made subject to other provi- sions of the Constitution. All parts of the Constitution were made by the same people and were equal. One could not be made more important than the other. [Subba Rao, J.

-What was the idea then in giving a paramount position to fundamental rights in our Constitution ? ] They are fundamental to human beings. [Subba Rao, J. -If the legislature had made a law defining its powers and privileges, could that law be valid if it infringed the fundamental right. s ? ] The Constitution itself said that powers, privileges and immunities would be such as the Legislature would lay down. Even such a law would not be against the fundamental rights. It would be in ex- ercise of the constituent law. The Constitution makers (l)S. C. R. SUPREME COURT REPORTS 817 thought it best that they would not define the powers z958 of tbe Legislature and left to the Legislature to decide . what powers it will have. . Pandtt [Subba Rao, J. -When a law was made by the M. 5 M. Sharma Legislature it was subject to fundamental rights under snri s,:·Krisnna Art. 19 but when the Legislature made laws relating Sinna and Others to its powers, etc. , it was not subject to Art. 19.

Was that not an anomalous situation ? ] There was no anomaly' at all. The Constitution makers themselves had said what powers andJrivile- ges of the Legislature were. When it was so ade as a law by virtue of powers granted by the Constitution then it could not be subject to fundamental rights. That what the Constitution itself had chosen to give was subject to fundamental rights was not a sound argument. [Bhagwati, J. -The fundamental rights we11e on a high pedestal and any other provisions should not infringe them]. What was constitutional was constitutional. Unless there w~re provisions made expressly subject to other provision or provisions they had all the same footing and were on the same plane. Wherever the CQnstitu- tion makers wanted to say it, they said so. 'l'h~y were otherwise independent of each other, unless stated to the contrary.

No part of the Constitution could be said to be void and if one part was struck down then it would mean that the Constitution itself was being struck down. Article 194 had to be given the status of Constitution law. The first point was that powers, privileges and im- munities given by Art. 194(3), were not subject to Art. 19. Having established that, the second point that would arise would be what were those powers and privileges. What was the ambit of those powers. In England there were instances to show t~at bre- ach of privilege was treated as contempt of the! House, disobedience of the Speaker's order was co)ltempt. (Refers to the standing order 62 of the House of Commons). 103 Pandit M. S. M. Sharma v ShN Sri Krishna Sinha and Others 818 SUPREME COURT REPORTS [1959] Snpp. The argument advanced by the other side was fallacious. [Quotes from May's Parliamentary Practice]. Standing order 62 did not apply to the Committee of Privileges.

It applied to select committees and stand- ing committees but not to the Committee of Privileges, which was a sessional committee appointed at the beginning of each session. The House of Commons had powers to make rules from time to time and regu- late its own procedure. All that the court had to satisfy itself about was whether or not the House had the power to follow up a breach of privileges. [Bhagwati, J. -Whether power to make rules had not been within limits. In an effort to protect im- munities and privileges one could not expand the pri- vileges and immunities]. All the precedents of the House of Commons were not available dating back to 16th or 17th Century but there was enough in l\Iay's Parliamentary Pra. ctice _to support the argument. So long as the debates were correctly and faithfully reported the right to prevent publication was not enforced. Journalists were pre- sent in the House galleries by the leave and licence of House and on sufferance.

What the Speaker said was not to be published, it could not be published. [Subba Rao, J. -What was the purpose of expunging a portion of the proceedings? ] The expunged portion was not deemed to have been stated in the House. There was the case in the House of Lords where an expunged portion was published and became breach of privilege. The privilege of the House to control publication was always there though it might not be exercised. The House, was always zealous of its privileges. Even here in India, House privilege had been asserted at the time when Mr. Vithalbhai Pa. tel was President of the Assembly. There was heated debate on the question as to in whom did the control of the precinct of the House vest, the Viceroy or the President of the Assembly. Mr. Patel to assert the Privilege of the House· asked the galleries to be cleared. Privileize was not ordinarily exercised if the report was faithful and accurate. But it was (1) S. C. R.

SUPREME COURT REPORTS 819 necessary in order to ensure if the member could say z958 things without fear of being misreported. Otherwise Pandit his freedom of speech was affected. M. s M. Sharma It was the power and privilege of the House ofi Com- v mons to decide what was a breach or not. The courts Shri Sri Krishna could go to the extent to find whether a particular Sinha and Others privilege existed. : [The Chief Justice: If the privilege claimed was excessive would it not affect fundamental rights? ] It depended on the wording of the notice. ln the present case the motior. and Committee's notice had to be read together. It would not he correct to give fundamental rights paramountcy over other Ptrts of the Constitution. ' With reference to the allegations of 'mala fide'. What was the ' mala fide ' ? Who could deny it ¢xcept the secretary as the ' mala tides' charge was levelled against the Committee of Privileges ? [Sinha, J. -Including the Chief Minister].

i " Mala Fides " was alleged against the Committee. [Sinha, J. -The petition says that the committee is influenced by the Chairman]. It is not so. I will confine myself to the petition which says that the Committee of Privileges is pro- ceeding against the petitioner 'ma. la fide ' in or~er to muzzle him and restrict him from expressing his views. The Chief Minister was the Chairman of the Com- mittee: There was nothing to show nor was it claimed that the member of the Committee were all his party- men. There were members of other parties. It was not alleged otherwise. It could not also be sai~ that the members of the Committee were all his adherents. In the circumstances, what else could be done except for the Secretary to deny the allegations of 'mala. fide' which was levelled against the committee appointed by the Speaker and the Chief Minister was Cha~rman from long before the matter under consideratio:q was taken up. [The Chief Justice. -Wbat about the time lag? No step wa. s ta.

ken for one whole year a. nd the a. lle~a. tian 820 SUPREME COURT REPORTS (1959] Supp. z958 • is that, when some articles were published, the matter . was taken up]. Pan~~ The action was taken after some time to enable the M. s. M. "'""' party to correct itself. . Shri SrivK•ishna Sinha, J. -The point raised was that the Com- Sinha and Others mittee did not do anything for one year and then woke up one morning and then pressed the matter]. How is the matter carried any further by these arguments. Ultimately the House would judge and it was composed of 316 members. Where was the ques- tion of ' ma. la fide ' ? No one in the House opposed the motion. Where was the malice of the Committee; whether it issued the notice immediately or after some time? [Sinha, J. -The argument of the petitioner's Coun- sel was that the House should have been presumed to have dropped the matter as the House had not done anything at all for one year and all of a sudden the matter was taken up.

The point made out was that but for the petitioner's subsequent action, no notice would have been issued by the Committee]. They 'had issued the notice stating that there was a. breach of privilege. [Sinha, J. -Had not the Committee become •functus officio' by lapse of time ? ] No, the Committee had the power to launch the prosecution. It did not do it immediately. It waited for three or four months. [Sinha, J. -The very essence of these proceedings which are of a summary character is that the matter should be expeditiously dealt with]. Is it not a. matter of internal management ? The House had decided something and it was for the Committee to take some action. The House did not rescind the decision. With reference to the claim that rules ha. d not been followed : the standing Order 62 of the House of Com- mons did not apply to the Privili>ges Committee which was a sessional committee. Then there was rule 215 a. bout the time limit. What was it that the House ha. d done?

It appointed one of its committees to (1) S. C. H.. SUPREME COURT REPORTS ! 821 inquire and submit its report within a period. The House could say that it could extend the time and Pandit enlarge the scope of time limit. 1 . w. s. M. Sharma [The Chief Justice. -But as long as the rule stands v • • • • • • • • • • • • • ]. Shri Sri Krishna The nature of the rule had to be gone into. It wa. s Sinha and Others something fixed by the House for the guidance of the Committee. The rules were made for the benefit fthe House. It was a matter for themselves, not for the benefit of an outsider t. o seek to enforce it. On the subject of m s apparently satisfied by this, the Speaker then requested Shri Nawal Kishore Sinha to move his resolution. The account shows that Shri Nawal Kishore Sinha then said-" Sir, I beg to move: that the matter be referred to the Privilege Committee of the House".

No amendment having been moved, the Speaker, according to the report of the proceedings set forth in " annexure D ", put the question to the House and, nobody objecting to the same, declared the resolution carried. It appears that the Committee of Privileges (respon- dent 2) did not take np the consideration of the matter promptly and while the matter was pending before the (I) S. C. R. SUPREME COURT REPORTS 831 Committee sharp exchanges of charges and counter z958 charges took place between the petitioner and the b h Pundit Chief Minister (respondent l) as are evidenced y t e f M M. S M. Sharma extracts from the issues of the Searchlight o ay 27, v 28 and 31, 1958. There appears to have been a debate ShtiSti /(rishna on June 5, 1958, for two hours in the Bihar Legislative Si""" afld Othm Assembly on the alleged faUure of the State Govern- ment to protect the petitioner from being assaulted by goondas.

It is said that these exchanges roused the Committee of Privileges from slumber into activity on August IO, 1958, when it passed a resolution which, according to annexure II to the petition, ran as follows·- " The question is that Shri M. S. M. Sharma, Editor and Shri Awadhesh Kumar Tiwari, Printer and Publisher of t. he "Searchlight" be called upon to show cause why appropriate action be not taken against them by reason of the commission of a breach of privilege in respect of the Speaker of the Bihar Legislative Assembly and the Assembly itself by publishing a perverted and unfaithful report of the proceedings of the Assembly relating to the speech of Shri Maheswar Prasad Narain Sinha, l\LL. A.

, ex- punged portions of whose speech were also published in derogation to the orders of the Speaker passed in the House on the 30th May, 1957, and that they be further directed to be in attendance at the meeting or meetings of the Committee on such date or dates as may be fixed by the Committee for consideration of the case against them. " On August 18, 1958, the petitioner was served with a notice dated August 14, 1958, issued by respondent 3, the Secretary to the Bihar Legislative Assembly, calling upon the petitioner to show cause, on or before September 8, 1958, why appropriate action should not be recommended against him for breach of privilege of the Speaker and the Assembly in respect of the offending publication. It is necessary, in view of one of the points taken by the learned advocate for the petitioner, to set ont the full text of this notice which was thus worded :- 832 SUPREME COURT REPORTS [1959] Supp.

z958 " Government of Bihar, ' Pandit Legislative Assembly Secretariat .. M. S M. Sharma v. Shri Sri Krishna Confidential No. 3538. IA. Sinha and Others From Shri Enayetur Rahman, B. A. , B. L. , Secretarf to the Legislative Assembly. To Shri M. S. M. Sharma, Editor, "The Searchlight", Searchlight Press, Patna. Patna, August 13/14, 1958. Whereas a question involving breach of privilege of the Bihar Legislative Assembly arising out of the publication of a news item in the Searchlight, dated the 31st May, 1957, under the caption "Bitterest attack on Chief Minister", was raised in the Assembly by Shri Nawal Kishore Sinha, M. L. A. (Patna) on the 10th June, 1957, and whereas the same, having been referred to the Committee of Privileges for examination, investigation and report, was considered by the Committee which has been pleased to find a prima facie case of breach of privilege made out against you.

You are hereby directed to show cause, if any, on or before the 8th September, 1958, why appropriate action ,should not be recommended against you for breach of privilege of the Speaker and the Assembly. Please also take notice that the question will come up for examination by the Committee on the 8th Septem- her, 1958, at 11 am. in the Official Sitting Room (Ground Floor) of the Assembly Buildings, Patna, and thereafter on such day or days and at such time and (1) S. C. R. SUPREME COURT REPORTS 833 place as the Committee may from time to time ap- 1958 point. You are also informed that if the matter comes to evidence, you can, if you so choose, adduce evi- Pandit dence, both oral and documentary, relevant to the M. s. M. Sl•arma issue, and you must come prepared with the same on Shri sr;-Krishna the date fixed in this behalf. Sinha and Olhm Sd. Enayetur Rehman, Secretary to the Legislative Assembly.

" Finding that_things had begun to move and appre- hending an adverse outcome of the enquiry to be held by the Committee of Privileges (respondent 2), the petitioner moved the High Court at Patna under Art. 226 for an appropriate writ;, order or direction restraining and prohibiting the respondents from pro- ceeding further with the enquiry referred to above. It appears that on August 29, 1958, the Art. 226 peti- tion came up for preliminary hearing and after it had been urged for a day and a half before the- High Court for . admission, the petitioner on September 1, 1958, withdrew that petition allegedly " with a view to avail the fundamental rights granted to him under Art. 32 of the Constitution. " The present petition under Art. 32 of the Constitu- tion was filed on September 5, 1958.

The petitioner contends that the said notice and the proposed action by the Committee of Privileges (respondent 2) are in violation of the petitioner's fundamental rights to freedom of speech and expression under Art. 19(l)(a) and to the protection of his personal liberty under Art. 21 and the petitioner claims by this petition to enforce those fundamental rights. An affidavit in opposition a. ffirmed by Shri Enaya- tur Rahman, the present incumbent of the office of respondent 3, has been filed on behalf of the respon- dents wherein it is maintained that the report con- tained in the offending publication was not in accord- ance with the authorised report of the proceedings in the House in that it contained even those remarks which, having been, by order of the Speaker, directed tlo be expunged, did not form part of the proceedings. 105 Das C. f. 834 SUPREME COURT REPORTS [1959] Supp.

'95 8 It is claimed that generally speaking proceedings in Pandit the House are not in the ordinary course of business M. s. M. Sh•,. •• meant to be published at all and t. hat under no cir- v. cumstances is it permissible to publish the parts of s~ri Sri Kri•h•a speeches which had been directed to be expunged and S•nha and Others consequently were not contained in the official report. - Such publication is said to be a clear breach of the Da. C. ]. privilege of the Legislative Assembly, which is entitl- ed to protect itself by calling the offender to book and, if necessary, by meting out suitable punishment to him. This claim is sought to be founded on the pro- visions of cl. (3) of Art. 194 which confers on it all the powers, privileges and immunities enjoyed by the House of Commons of the British Parliament at the commencement of our Constitution. Lea. rued advocate for the petitioner relies upon Art.

19(l)(a) and contends that the petitioner, as a citizen of India, has the right to freedom of speech and expression and that, as an editor of a newspaper, he is entitled to all the benefits of freedom of the Press. It is, therefore, necessary to examine the ambit and scope of liberty of the Press generally and under our Constitution in particular. In England freedom of speech and liberty of the Press have been secured after a very bitter struggle between the public and the Crown. A short but lucid account of that struggle will be found narrated in the Constitutional History of England by Sir Thomas Erskine May (Lord Farnborough), Vol. II, ch. IX under the heading " Liberty of Opinion ". In the beginning the Church is said to have persecuted the freedom of thought in religion and then the State suppressed it in politics. Matters assumed importance when the art of printing came to be developed. The Press was subjected to a rigorous censorship.

Nothing could be published without the imprimatur of the licenser and the publication of unlicensed works was visited with severe punishments. "Political discus- sion was silenced by the licenser, the Star Chamber, the dungeon, the pillory, mutilation and branding. " Even in the reign of Queen Elizabeth printing was interdicted save in London, Oxford and Cambridge. " Nothing marked more deeply the tyrannical spirit (1) S. C. R. SUPREME COURT REPORTS 835 of the first two Stul! orts than their barbarous persecu- I95 8 tions of authors, printers and the importers of pro- P d. hibited books : nothing illustrated more signally the M. s. ~. "s~a'"'" love of freedom than the heroic courage and constancy v. with which those persecutions were borne " (1 ). There Shri Sri J sH, for t. henceforth the theory of free Press was recognised and every writing could be freely published, although ar the peril of"the rigorous application of the law of libel.

William Blackstone in his 4th Book of Commentaries publish- ed in 1769 wrote at p. 145 :- " The liberty of the Press is indeed essential to the nature of a free State; but this consists in laying no previous restraints upon publication, and not in freedom from censure for criminal matter when pub- lished. Every free man has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the Press; but if he publishes what is improper, mischievous or illegal, he must take the consequences of his own temerity. " Halam in his Constitutional History of England ex- presses the same view by saying that liberty of the Press consists merely in exemption from the licenser. To the same effect are the observations of Lord Mansfield, C. J. , in King v. Dean of St. Asa11h (2). The liberty of the Press, therefore, primarily consists in {1) May's Constitutional History of England, Vol. ii, pp. 240-4r. (2) (1784) 3 Tr •. 428. Das C. ].

836 SUPREME COURT REPORTS [1959) Supp. printing without any previous license subject to the consequences of law. It is, in substance, a mere M s 1;;"~!. ,, •• application of the genera. I principle of the rule of law, · · ~. namely, that no man is punishable except for a dis. Shri Sri Krishna tin ct breach of the law ( 1 ). It was thus, as a result of Sida ••d Others a strenuous struggle, that the British people have at long la. st secured for themselves the greatest of their Das c. J. liberties-the liberty of opinion. • In the United States of America. freedom of speech and liberty of the Press have been separately and specifically safeguarded in the Constitutions of most of the different States. Portions of the Constitutions of the 48 federating States, relevant for our purpose, have been collected in Cooley's Constitutional Limita- tions, Vol. II, ch. 12, pp. 876. 880. Fifteen States, only, namely, Ala. ha. ma.

, Arizona, Colorado, Idaho, Illinois, Indiana, Kansas, Missouri, Montana, Neb. raska. , North Dakota, Oregon, South Dakota, Wash- ington and Wyoming· do not specifically refer to liberty of the Press but content themselves by provid. ing for frlledom of speech. The Constitutions of the rest of the federating States separately and specifi. ca. Uy mention liberty of the Press in addition to free- dom of speech. The first Amendment of the federal Constitution of the United States, which was ratified in 1791, provides that " Congress shall make no la. w ... ............ abridging the freedom of speech or· of the Press". The Fifth and the Eourteenth Amendments also protect people from being depriv~d of life, liberty or property without due process of law. Prior the advent of our present Constitution, there wa. s no constitutional or statutory enunciation of the freedom of speech of the subjects or the liberty of the Press.

Even in the famous Proclamation of Queen Victoria made in 1858 after the British power was firmly established in India, there was no reference to the freedom of speech or the liberty of the Press, a. I. though it wa. s announced that " none be in any wise favoured, none molested or disquieted by reason of their Religious Faith or Observances; but that all shall a. like enjoy the equal and impartial protection (1) Dicey's Law of the Constitution, 9th Edn. , p. 247. (1) S. C. R. SUPREME COURT REPORTS 837 of the Jaw; ......... " Indeed during the British period x958 of our history the Press as such had no higher or Pandit better rights than the individual citizen. In Arnold M. s. M. 5 "°'"'" v. King Emperor ( 1 ) which wal! I a case of an appeal by v. the editor of a newspaper against his conviction for Shri Sri J\rishna criminal libel under s.

499 of the Indian Penal Code, Si 11 ha and Othm Lord Shaw of Dunfermline in delivering the judgment of the Privy Council made the following observations at p. 169 :- " Their Lordships regret to find that there appe- ared on the one side in this ca. se the time-worn fallacv that some kind of privilege attaches to the profession of the Press as distinguished from the members of the public. The freedom of the journalist is an ordinary part oft. he freedom of the subject, and to whatever lengths the subject in general may go, so also may the journalist, but, apart from statute law, his privilege is no other and no higher. The responsibilities which attach to his power in the dissemination of printed matter may, and in the case of a conscientious journa- list do, make him more careful ; but the ·range of his assertions, his criticisms, or his comments, is as wide as, and no wider than, that of any other subject. Nu privilege attaches to his position.

" ' Then came our Constitution on J·anuary 26, 1950. The relevant portions of Art. 19, as it now stands and which is relied on, are as follows:- " 19 (1) All citizens shall have the right~ (a) to freedom nf speech and expression; (2) Nothing in sub-clause (a)ofclause(l)shallaffect the operation of any existing law, or preveiit the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incite- ment to an offence. " (1) (1914) L. R. 41 I. A. 149. Das C. ]. 838 SUPREME COURT REPORTS (1959) Supp. 1958 It will be noticed that this Article guarantees to all citizens freedom of speech and expression but does not Pandit specifically or separately provide for liberty of the M. S. M. ShaYma v. Press.

It has, however, been held that the liberty of Sh•i Sri Krishna the Press is implicit in the freedom of speech and ex. Sinha and Othm pression which is conferred on a citizen. Thus, in Romesh Thappar v. State of Madras ( 1 ) this Court has Das c. 1 · held that freedom of speech and expression includes the freedom of propagation of ideas and that freedom is ensured by the freedom of circulation. In Brijbhu- shan v. The State of Delhi (') it has been laid down by this Court that the imposition of pre-censorship on a journal is a restriction on the liberty of the Press which is a. n essential pa. rt of the right to freedom of speech and expression declared by Art. 19(l)(a). To the like effect are the observations of Bhagwati, J. , who, in delivering the unanimous judgment of this Court in Express Newspapers Ltd. v. Union of India(') said at page 118 that freedom of speech and expres- sion includes within its scope the freedom of the Press. Two things should be noticed. A non.

citizen running a newspaper is not entitled to the fundamental right to freedom pf speech and expression and, therefore, cannot claim, as bis fundamental right, the benefit of the liberty of the Press. Further, being only a right flowing from the freedom of speech and expression, the liberty of the Press in India stands on no higher foot- ing than the freedom of speech and expression of a citizen and that no privilege attaches to the Press as such, that is to say, as distinct from the freedom of the citizen. In short, as regards citizens running a newspaper the position under our Constitution is the same as it was when the Judicial Committee decided the case of Arnold v. The King Emperor(') and as regards non-citizens the position may even be worse. The petitioner claims that as a. citizen and an editor of a newspaper he has the absolute right, subject, of course, to any law that may be protected by cl. (2) of Art.

19, to publish a true and faithful report of the publicly heard and seen proceedings of Parliament or (1) [1950] S. C. R. 594- (2) [1950] S. C. R. 605. (3) [1959] S. C. R. 12. (4) (1914) L. R. 41 I. A. 149. (1) S. C. R. SUPREME COURT REPORTS 839 any State Legislature including portions of speeches '95 8 dire~ted to be expu_nged along with a note that that Pandit portion had been directed to be so expunged. The M. s. M. Sharma respondents before us do not contend that the petitio- v. ner's freedom of speech and expression is confined Shri s,; £frishna only to the publication of his own sentiments, feelings, Sinha and Others opinions, ideas and views but does not extend to the publication of news or of reports of proceedinO's or of views of others or that such last mentioned 1~ublica tions are not covered by the interpretation put upon the provisions of Art. 19(l)(a. ) by this Court in the three decisions referred to above or that. the case of Srinivasa v.

The Staf P of Madras (1), which apparently supports the petitioner, was wrongly decided. For the purposes of this case, therefore, we are relieved of the necessity for examining the larger questions and have to proceed on the footing that the freedom of speech and expression conferred on citizens includes the right to publish news and reports of proceedings in publie meetings or in Parliament or State Legislatures. Tlw respondents, however, deny that the petitioner has the absolute right broadly formulated as hereinbefore mentioned. They urge, inter alia, that under Art. 194(3) Parliament and the State Legislatures have the powers, privileges and immunities enjoyed by the House of Commons of British Parliament and those powel'. S, privileges and immunities prevail over the freedom of speech and expression conferred on citizens under Art. 19(l)(a).

Besides a few minor miscellaneous points raised by the learned advocate for the petitioner, which will be dealt with in due course, two principal points arising on the pleadings have been canvassed before us and they are formulated thus:- I. Has the House of the Legislature in India the privilege under Art. 194(3) of the Constitution to pro- hibit entirely the publication of the publicly seen and heard proceedings ,that took place in the House or even to prohibit the publication of that part of the proceedings which had been directed to be expunged? II. Does the privilege of the House under Art. (1) A. l. R. (1951) Mad. 70. i. Jas C. j. Pandil M. S. M. Shartnu v. Sfu·i STi K,·ishna Sinha and Others Ll•• c. ]. 840 SUPREME COURT REPORTS (1959] Supp. 194(3) p1·ovail over the fundamental right of the peti· tioner under Art. 19(l)(a)? Re I: Article 194, on which depends our decision not only on this point but also on the next oue, may now be set out:- " 194.

(1) Subject to the provisions of thi11 0011- stitu ti of the members but also for their personal safety. "The original motive for secrecy of debate was tho anxiety of the members to protect themselves against the action 'of the sovereign, but it was soon found equally convenient as a veil to hide their proceedings from their constituencies" (1). This object could be achieved in two ways, namely, (a) by prohibiting the publication of any report of the debates and proceed- ings and (b) by excluding strangers from the Hom;e and holding debates within closed Da' C. j. 856 SUPREME COURT REPORTS [1959) Supp. be HO subject indicates that the Constitution makers did not intend els. (2) to (4) to be subject to the provi- sions of the Constitution.

If the Constitution makers wanted that the provisions of all the clauses should be subject to the provisions of the Constitution, then the Article would have been drafted in a different way, namely, it would have started with the words: "Sub- ject to the provisions of this Constitution and the rules and standing orders regulating the procedure of the Legislature-" aud then the subject matter of the four clauses would have been set out as sub-els. (i), (ii), (iii) and (iv) rm as to indicate that the overriding provi- sious of the opening words qualified each of the sub- clauses. In the third place, in may well be argued that the words "regulating the procedure of the Legisla- ture" occurring in cl. (1) of Art. 194 should be read as governing both "the provisions of the Constitution" and " the ru ! es and standing orders ".

So read free- dom of speech in the Legislature becomes subject to the provisions of the Constitution regulating the pro- cedure of the Legislature, that is to say, subject to the Articles relating to procedure in Part VI including Arts. 208 and 211, just as freedom of speech in Parlia- ment under Art. 105(1), on a similar construction, will become subject to the Articles relating to procedure in Part V including Arts. ll8 and 121. The argument that the whole of Art. 194 is subject to Art. 19(l)(a) overlooks the provisions of cl. (2) of Art. 194. The right conferred on a citizen under Art. 19(l)(a) can be restricted by law which falls within cl. (2) of that Article and he may be made liable in a court of law for breach of such law, but cl. (2) of Art.

194 categori- cally lays down that no member of the Legislature is to be made liable to any proceedings iu any court in respect of anything said or any vote given by him in the Legislature or in committees thereof and that no person will be liable in respect of the publication by or under the authority of the House of such a Legishture of any report, paper or proceedings. The provisions of cl. (2) of Art. 194, therefore, indicate that the free- dom of speech referred to in cl. (1) is difforent from the freedom of speech and expression guaranteed (1) S. C. R. SUPREME COURT REPORTS 857 under Art. 19(l)(a) and cannot be cut down in any r958 way by anv law contemplated by cl. (2) of Art. 19. . " Pandit As to the second head of arguments noted above it M. s. M. Sharma has to be pointed out that if the intention of cl. (1) of v. Art.

194 was only to indicate that it was an abridge- S~ri Sri Krishna ment of the freedom of speech which would have been Srnha and Others available to a member of the Legislature as a citizen - Das C. ]. under Art. 19(l)(a), then it would have been easier to say in cl. (1) that the freedom of speech conferred by Art. 19(l)(a), when exercised in the Legislature of a State, would, in addition to the restrictions permissible by law under cl. (2) of that Article, be further subject to the provisions of the Constitution and the rules and standing orders regulating procedure of that Legisla- ture. There would have been no necessity for confer- ring anew the freedom of speech as the words " there shall be freedom of speech in the Legislature of every State" obviously intend to do. Learned advocate for the petitioner has laid great emphasis on the two parts of the provisions of cl. (3) of Art.

194, namely, that the powers, privileges and immunities of a House of the Legislature of a State and of the members and committees thereof shall be such as may from time to time be defined by the Legislature by law and that until then they shall be those of the House of Commons of the Parliament of the United Kingdom and of its members and committees. 'The argument is that a law defining the powers, privileges and immunities of a House or Houses and the members and committees thereof can be made by Parliament under entry 74 in List I and by the State Legislature under entry 39 of List II and if a law so made takes away or abridges the right to freedom of speech guaranteed under Art. 19(1)(a) and is not protected under Art. 19(2), it will at once attract the operation of the peremptory provisions of Art. 13 and become void to the extent of the contravention of that Article.

But it is pointed out that if Parliament or the State Legislature does not choose to define the powers, privileges and immunities and the Houses of Parlia- ment or the House or Houses of the State Legislature 108 858 SUPREME COURT REPORTS (1959] Supp. '958 or the members and committees thereof get the powers, . privileges and immunities of the House of Commons, M. s. ~~~~f. arma there can be no reas? n why, in ~nch e'. 'e. nt, the last . v. mentioned powers, privileges and 1mmumties should be Sh,i s,; Ifrishna independent of and override the provisions of Art. 19 Sinha and Othm (l)(a). The conclusion sought to be pressed upon us is that that could not be the intention of the Constitu- Das c. J. tion makers and, therefore, it must be held that the powers, privileges and immunities of the House of Com- mons and of its members and committees that are conferred by the latter part of Art.

105(3) on each House of Parliament and the members and committees thereof and by the latter part of Art. 194(3) on a House of the Legislature of a State and the members and committees thereof must be, like the powers, privileges and immunities defined by law, to be mad~ by Parliament or the State Legislature as the case may be, subject to the provisions of Art. 19(l)(a). ·we are unable to accept this reasoning. It is true that a law made by Parliament in pursuance of the earlier part of Art. 105(3) or by the State Legislature in pursuance of the earlier part of Art. 194(3) will not be a law made in exercise of constituent power like the law which was considered in Sankari Prasad Singh Deo v. Union of India ( 1 ) but will be one made in exercise of its ordinary legislative powers under Art. 246 read with the entries referred to above and that consequently if such a law takes away or abridges any of the fundamental rights it will contravene the peremptory provisions of Art.

13(2) and will be yoid to the extent of such contravention and it may well be that that is precisely the reason why our Parliament and the State Legislatures have not made any law defining the powers, privileges and immunities just as the Australian Parliament had not made any under s. 49 of their Constitution corresponding to Art. 194(3) up to 1955 when the case of '1-'he Queen v. Richards(') was decided. It does not, however, follow that if the powers, privileges or immunities conferred by the latter part of those Articles are repugnant to the fundamental rights, they must also be void to the (t) [1952] S. C. R. 89, 90. (2) (1955) 92 C. L. R. 57. ~. I (1) S. C. R. SUPREME COURT REPORTS 859 extent of such repugnancy. It must not be overlooked z95B that the provisions of Art. 105(3) and Art. 194(3) are P a· constitutional laws and not ordinary laws made by M. s. A:~s~arma Parliament or the Stiite Legislatures and that, there- v. fore, they are as supreme as the provisions of Part III.

Shri Sri Krishna Fmther, quite conceivably our Constitution makers, Sinha and Ollie's not knowing what powers, privileges and immunities Parliament or the Legislature of a State may arrogate and claim for its Houses, members or committees, thought fit not to take any risk a. nd accordingly made such laws subject to the provisions of Art. 13; but that knowing and being satisfied with t. he reasonable- ness of the powers, privileges and immunities of the Honse of Commons at the commencement of the Con- stitution, they did not, in their wisdom, think fit to make such powers, privileges and immunities subject to the fundamental right conferred by Art. 19(l)(a). \Ve must, by applying the cardinal rules of construc- tion ascertain the intention of the Constitution makers from the language used by them. In this connection the observations made in Anantha Krishnan v. State of Madras (1) by VenkQ,tarama Aiyar, J.

, appear to us to be apposite and correct:- " As against this the learned Advocate for the petitioner urges that the fundamental rights are under the Constitution in a paramount position, that under Art. 13 the Legislatures of the country have no power to abrogate or abridge them, that the power to tax is the power to destroy and that, therefore, part 12 is inoperative in respect of the rights conferred under Part III. I am unable to agree. Art. 13 on which this argument is mainly founded does not support such a wide contention. It applies in terms only to laws in force before the commencement of the Constitution and to laws to be enacted by the States, that is, in future. It is only those two classes of laws that are declared void as against the provisions of Part III. It docs not apply to the Constitution itself.

It does not enact that the other portions of the Constitution should be void as against the provisions in Part III and it would be surprising if it did, seeing that all of them (1) A. 1. R. (1952) Mad. 395, 405. Das C. ]. 860 SUPREME COURT REPORTS (1959) Supp. '95 8 are parts of one organic whole. Article 13, therefore, P d·e cannot be read so as to render any portion of the Con- M. s. ;~;harm• stitution invalid. This conclusion is also in accordance v. with the principle adopted in interpretation of statutes Shri Sri Krishna that they should be so construed as to give effect §inha and 01hers and operation to all portions thereof and that a con- - struction which renders any portion of them inopera- D•s c. J. tive should be avoided. For these reasons I must hold that the operation of Part 12 is not cut down by Part III and that the fundamental rights are within the powers of the taxation by the State. " Article 19(l)(a) and Art.

194(3) have to be reconciled and the only way of reconciling the same is to read Art. 19(l)(a) as subject to the latter part of Art. 194(3), just as Art. 31 has been read as subject to Art. 265 in the cases of Ramjilal v. Income-tax Officer, Mohin- dargarh ( 1 ) and Laxmanappa Hanumantappa v. Union of India ('), where this Court has held that Art. 31(1) has to be read as referring to deprivation of property otherwise than by way of taxation. In the light of the foregoing discussion, the observations in the Madhya Bharat case ( 3 ) relied on by the petitioner, can- not, with respect, be supported as correct. Our decision in Gunupati Keshavram Reddy v. Nafisul Hasan('), also relied on by learned advocate for the petitioner, proceeded entirely on a concession of counsel and cannot be regarded as a considered opinion on the subject. In our judgment the principle of harmonious construction must be adopted and so construed, the provisions of Art.

19(l)(a), which are general, must yield to Art. 194(1) and the latter part of its cl. (3) which are· special. . Seeing that the present proceedings have been initiat- ed on a petition under Art. 32 of the Constitution and as the petitioner may not be entitled, for. reasons stated above, to avail himself of Art. l9(1Xa) to support this application, learned advocate for the petitioner falls back upon Art. 21 and contends that the proceedings before the Committee of PriYileges threaten to deprive him of personal liberty otherwise (1) [1951] S. C. R. 127. (2)(1955] I S. C. R. 76<). (3) A. LR. (1952) M. B. 31, 43, (4) A. I. R. (1954) S. C. 636. (1) S. C. R. SUPREME COURT REPORTS 861 than in accordance with procedure established by law. x95s The Legislative Assembly claims that under Art. P d. 1 194(3) it has all the powers, privileges and immunities M. s. ;~ 5 ~,. ,, •• enjoyed by the British House of Commons at the com- v. mencement of our Constitution.

If it has those powers, Shri Sri Krlsll .. privileges and immunities, then it can certainly en- Ssnha ••d Otlt. ,, force the same, as the House of Commons can do. Das c. J. Article 194(3) confers on the Legislative Assembly those powers, privileges and immunities and Art. 208 confers power on it to frame rules. The Bihar Legis- lative Assembly has framed rules in exercise of its powers under that Article. It follows, therefore, that Art. 194(3) read with the rules so framed has laid down the procedure for enforcing its powers, privileges and immunities. If, therefore, the Legislative Assem- bly has the powers, privileges and immunities of the House of Commons and if the petitioner is eventually deprived of his personal liberty as a result of the pro- ceedings before the Committee of Privileges, such deprivation will be in accordance with procedure esta- blished by law and the petitioner cannot complain of the breach, actual or threatened, of his fundamental right under Art. 21. .

We now proceed to consider the other points raised by learned counsel for the petitioner. He argues that assuming that the Legislative Assembly has the powers, privileges and immunities it claims and that they override the fundamental right of the petitioner, the Legislative Assembly, nevertheless, must exercise those privileges and immunities in accordance with the standing orders laying down the rules of procedure governing the conduct of its business made in exercise of powers under Art. 208. Rule 207 lays down the conditions as to the admissibility of a motion of privi- lege. According to cl. (ii) of this rule the motion must relate to a specific matter of recent occurrence. The speech was delivered on May 30, 1957, and Shri Nawal Kishore Sinha M. L. A. sent his notice of motion on June 10, 1957, that is to say, 10 days after the speech had been delivered.

The matter that occurred 10 days prior to the date of the submission of the notice of motion cannot be said to be a specific matter of recent }'andit 1\1. S. Al. Shanna v. Shri Sri I\rish11a SiHha a11d Others Das C. j. 862 SUPREME COURT REPORTS [1959] Supp. occurrence. It is impossible for this Court to prescribe a particular period for moving a privilege motion so as to make the subject matter of the motion a specific matter of recent occurrence. This matter must obviously be left to the discretion of the Speaker of the House of Legislature to determine whether the subject matter of the motion is or is not a specific matter of recent occurrence. The copies of the proceedings marked as Annexure D in Annexure III to the peti- tion do not disclose that any objection was taken by any member on the ground that the matter was not a specific matter of recent occurrence. VI' e do not con- sider that there is any substance in this objection. Reference is then made to rr.

208 and 209 which lay down the procedure as to what is to happen if any objection is taken to leave beiug granted to the mover to move his motion. It is said that Shri Ramcharitra Sinha ! ILL. A. had raised an objection to leave being granted to Shri Nawal Kishore Sinha to moYe the pri- vikge motion. This allegation in the petition docs not appear to be borne out by the account of proceed- ings in the House to which reference has been made. ~hri Hamcharitra Sinha only wanted to know the conn~ntion refating to the question of admissibility of such a motion and the Speaker accordingly read out el. (ii) of r. 208. Afkr that Shri Ramcharitra Sinha did uot say anything further. The Speaker then sttid that he uuderstood that there was no opposition in the matter and, therefon', the Hon'ble member was to be understood as having received the leave of the House _and called upon him to say what he wanted to say.

Tlwreupon, as stated earlier, Shri Karpuri Thakur \rnnted to know what had bPen published in the l:learchlight of May 31, l! l57, and what ought not to ha Ye been published. The Speaker thereupon read out the notice submitted by Shri Nawal Kishorc Sinha which concisely referred to the subject matter of the motion and contained a reference to the issue of the Searchlight of May 31, 1957, a copy of which was filed along with the notice. After the notice had been read the SpeakP. r permitted Shri Nawal Kishore Sinha to move his privilege motion, which the latter did. There (I) S. C. R. SUPREME COURT REPORTS 863 was no amendment proposed and the Speaker then r95B stated what the question before the House was. No- p--:i·, body having indicated his opposition, he declared the M. s. ~~ s~anna motion to be carried. There was, in the circumstances, v. no non-compliance with the provisions of r. 208 read Shri Sri f(rishna with r. 209.

Sinha and Others The next argument founded on non-compliance with the rules is based on r. 215. Clause (i) of that rule provides that the Committee of Privileges should meet as soon as may be after the question has been referred to it and from time to time thereafter till a report is made within the time fixed by the House. In this case the House admit~edly did not fix a time within which the report was to be made by the Committee of Privi- leges. This circumstance immediately attracts the proviso, according to which where the House does not fix any time for the presentation of the report, the report has to be presented within one month of the date on which the reference to the Committee was made. Learned advocate for the petitioner argues that one month's time had long gone past and, there- fore, the Committee of Privileges became functus officio and cannot, under the rules, proceed with the refer- ence. There is no substance in this contention, because the second proviso to cl.

(i) of r. 215 clearly provides that the House may at any time on a motion being made direct that the time for the presentation of the report by the Committee be extended to a date speci- fied in the motion. The words "at any time" occur- ring in the second proviso quite clearly indicate that this extension of time may be within the time fixed by the House or, on its failure to do so, within the time fixed by the first proviso or even thereafter, but before the report is actually made or presented to the House (Cf. Raja Har Narain Singh v. Chaudhrain Bhagwant J{ uar) (1). :Further, the question of time within which the Committee of Privileges is to make its report to the House is a matter of internal management of the affairs of the House and a matter between the House and its Committee and confers no right on the party whose conduct is the subject matter of investigation (1) (1891) L. R. 18 I. A. 55, 58. Das C. ). Pandit ll1. S. M. Sharma v .. Shri Sri Krishna Sinha and OJ! urs Das C.

]. 864 SUPREME COURT REPORTS [1959] Supp. and this is so particularly when the House has the power to extend time "at any time". The next argument is that the Committee cannot proceed to investigate what has not been referred to it. Heference is made to the resolution of the Com- mittee (Annexure II to the petition) and the notice issued to the petitioner (Annexure I to the petition). It is said that while 1 the Committee's resolution speaks of publishing " a perverted and unfaithful report of the proceedings of the Assembly relating to the speech of Maheshwar Prasad Narayan Sinha M. L. A. " includ- ing the expunged portion thereof, the notice simply refers to "a question involving breach of privilege of the Bihar Legislative Assembly arising out of the publication of the news item" and calls upon the peti- tioner to show cause why appropriate action should not be recommended against him " for breach of privi- lege of the Speaker aii. d the Assembly".

We fail to perceive how the two documents can be read as re- ferring to two different charges. The notice served on the petitioner is couched in terms which cover the matters referred to in the Committee's resolution. The effect in law of the order of the Speaker to expunge a portion of the speech of a member may be as if that portion had not been spoken. A report of the whole speech in such circumstances, though factually correct, may, in law, be regarded as perverted and unfaithful report and the publication of such a perverted and un- faithful report of a speech, i. e. , including the expung- ed portion in derogation to the orders of the Speaker passed in the House may, primafacie, be regarded as constituting a breach of the privilege of the House arising out of the publication of the offending news item and that is precisely the charge that is contemplated by the Committee's resolution and which the petitio- ner is by the notice called upon to answer.

We prefer to express no opinion as to whether there has, in fact, been any breach of the privilege of the House, for of that the House alone is the judge. The next argument urged by learned advocate for the petitioner is that, after the House had referred the matter to the committee of privileges, nothing was (1) S. C. R. SUPREME COURT REPORTS 865 done for about one year, ai1d after such a lapse of time the committee has suddenly woke up and resus- Pandit citated the matter only with a. view to penalise the M. s. M. Sha11na petitioner. In paragraph 17 of the petition the charge .. ~· . of mala fides is thus formulated :- 5 ~" Sri K11Slma 17 Th h C . te f p . . 1 . c "d Sinha and Others " . at t e omm1t e o riv1 eges a1oresa1 _ is proceeding against the petitioner mala fide with a Das c. J. view to victimise and muzzle him since the petitioner has been through his newspaper unsparingly criticis- ing the administration in the State of Bihar of which opposite party No.

1 is the Chie~ Minister. " It will be noticed that the allegation of mala fides is against the Committee of Privileges and not against the Chief Minister and, therefore, to controvert this allegation an affidavit affirmed by the Secretary to the Bihar Legislative Assembly has been filed. In the affidavit in reply reference is made to certain issues of the Searchlight indicating that charges were being made by the paper against the Chief Minister and the suggestion is that it is at the instance of the Chief Minister that the Committee has now moved in the matter. This is a new allegation. That apart, the Chief Minister is but one of the fifteen members of the Committee and one of the three hundred and nineteen members of the House. The Committee of Privileges ordinarily includes members of all parties represented in the House and it is difficult to expect that the Com- mittee, as a body, will be actuated by any mala fide intention against the petitioner.

Further the business of the Committee is only to make a report to the House and the ultimate decision will be that of the House itself. In the circumstances, the allegation of bad faith cannot be readily accepted. It is also urged that the Chief Minister should not take part in the proceedings before the Committee because he has an interest in the matter and reference is made to the decision in Queen v. Meyer (1). The case of 'bias of the Chief Minister (respondent 2) has not been made anywhere in the petition and we do not think it would be right to per- mit the petitioner to raise this question, for it depends (I) L. R. (1876) I Q. B. D. 1]3. 109 866 SUPREME COURT REPORTS [1959] Supp. r958 on facts which were not mentioned in the petition but . were put forward in a rejoinder to which the respon- M 5 P;/~': dents had no opportunity to reply. · · ;. arma Finally, the petitioner denies that the expunged Shri Sri Krishna portions have been published.

We do not think we Sinha and Others should express any opinion on this controversy, at any Das C. j. Subba Rao }. rate, at this stage. If the Legislative Assembly of Bihar has the powers and privileges it claims and is entitled to take proceedings for breach thereof, as we hold it is, then it must be left to the House itself to determine whether th~re has, in fact, been any breach of its privilege. Thus, it will be for the House on the ad vice of its Committee of Privileges to consider the true effect of the Speaker's directions that certain por- tions of the proceedings be expunged and whether the publication of the speech, if it has included the portion which had been so directed to be expunged, is, in the eye of the law, tantamount to publishing something which had not been said and, whether such a publica- tion cannot be claimed to be a publication of an accu- rate and faithful report of the speech.

It will, again, be for the House to determine whether the Speaker's ruling made distinctly and audibly that a portion of the proceedings be expunged amounts to a direc- tion to the Press reporters not to publish the same, and whether the publication of the speech, if it has included the portion directed to be so expunged, is or is not a violation of the order of the Speaker and a breach of the privilege of the House a. mounting to a contempt of the Speaker and the House. ]'or reasons stated above we think that this petition should be dismissed. In the circumstances, there will be no order for costs. SuBBA RAo, J. -I have had the advantage of perus- ing the well considered judgment of my Lord the Chief Justice. It is my misfortune to differ from him and my learned brethren.

I would not have ventured to do so but for my conviction that the reasoning adopt· ed therein would unduly restrict and circumscribe the wide scope and content of one of the cherished funda- mental rights, namely, the freedom of speech in its application to the Press. (l} S. C. R. SUPREME COURT REPORTS 867 This is an application under Article 32 of the Con- r95B stitution for quashing the proceedings before the Com- . mittee of Privile. g~s of the Bihar Legisla_tive Assembly M. s. P;n~:. arma and for · restrammg the respondents, I. e. , the Chief v. Minister of Bihar and the said Committee of Privi- Shri Sri Krishna leges, from proceeding against the petitioner for the Sinha and Others publication in the issue of the "Searchlight " dated May 31, 1957, an account of the debate in the House Subba Rao J. (The Legislative Assembly, Bihar) on May 30, 1957, and for other incidental reliefs. The petitioner, Pandit M. S. M.

Sharma, is the editor of the "Searchlight'', an English daily newspaper published from Patna in the State of Bihar. On May 30, 1957, Shri Maheswara Prasad Narayan Singh, a member of the State Assem- bly made a bitter attack in the Assembly on the Chief Minister, Shri Sri Krishna Sinha, and on Shri Mahesh Prasad Sinha, a minister in the previous cabinet, who was defeated at the last General Elections. It is said that in regard to that speech the Speaker gave a rul- ing that certain portions thereof should be expunged from the proceedings. In the issue of the " Search- light" dated May 31, 1957, an accurate and faithful account of the proceedings of the Bihar Legislative Assembly of May 30, 1957, was published under the caption "BITTEREST ATTACK ON CHIEF MINIS- TER". It was also indicated in the report that the Speaker had disallowed the member to name Mr.

Mahesh Prasad Sinha in respect of the Ministry forma- tion and confined him to his remarks in regard to his chairmanship of the Khadi Board. It is alleged in the affidavit that till May 31, 1957, it was not known to any member of the staff of the "Searchlight", includ- ing the petitioner, that any portion of the debate in question had been expunged from the official record of the AsRembly proceedings of May 30, 1957, and that in fact the petitioner did not publish the expunged re- marks. This fact was denied by the respondents in their counter, but it was not alleged that the Speaker made any specific order or gave any direction prohibit- ing the publication of any part of the proceedings of the Assembly in any newspaper. On June 10, 1957, Shri Nawal Kishore Sinha moved a privilege motion- ' 868 SUPHEl\IE COURT REPOltTS [l! J59] Supp. 1 95 8 in the House and it was carried, as, presumably, no Pandit one had opposed it. 011 the same day, the House re- . , .

, forred the matter to the Committee of Privileires with- ,11. ,S. ,d . . Sr1arma .. _, v. out fixing any date for the presentation of the report Shri S•i l<rUma of the Committee. The Committee in due course. held s;""" and Otltm its meeting presided over by the Chief Minister and - found that a prima jacie case of breach of privilege Subbu Uao ]. hat! been made out against the petitioner. Then, the Secretary to the Legislative Assembly issued a notice to the petitioner informing him of the fact that the Committee had found a prima facie case of breach of privilege made out against him and asking him to show cause, if any, on or before September 8, 1958, why appropriate action should not lie taken against him. Along with that not. ice, a copy of the motion as adopted by the Committee of Privileges in its meeting held on August IO, 1958, and a copy of a booklet con- taining a collection of the papers relating to the privi- lege motion moved by Shri Nawal Kishore Sinha, M. L. A.

, on June IO, 1957, wer·c enclosed for ready reference. The booklet accompanying the notice con- tained the motion moved in the House, the report pub- lished in the "Searchlight" dated May 31, 1957, and the rules oft. he Assembly. relating to t. lie Committee of Privileges. Though there was some argument on the constr

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