Pandit M. S. M. Sharma vs Shri Sri Krishna Sinha And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Petition No. 122 of 1958

Decision Date: 12 December 1958

Coram: Sudhi Ranjan Das, Natwarlal H. Bhagwati, Bhuvneshwar P. Sinha, K.N. Wanchoo

In the matter titled Pandit M. S. M. Sharma versus Shri Sri Krishna Sinha and Others, the Supreme Court of India delivered its judgment on the twelfth day of December, 1958. The Constitution Bench that heard the case consisted of Chief Justice Das, Justice Sudhi Ranjan, Justice Natwarlal H. Bhagwati, Justice Bhuvneshwar P. Sinha, and Justice K. N. Wanchoo. The case is reported in the 1959 Annual Report of the Indian Reports at page 395, and in the 1959 Supplement to the Supreme Court Reports at page 806. Additional citations appear in the Republic Reports and the Supreme Court Reports for the years 1960 through 1982, including references such as R 1960 SC1186 (1,2,5,6,8), D 1961 SC 613 (4), R 1962 SC 36 (36), F 1963 SC 996 (11), C 1965 SC 745 (36,37,46, etc.), R 1967 SC1639 (8), RF 1967 SC1643 (22), R 1968 SC1313 (10), RF 1971 SC1132 (49), R 1973 SC 106 (102), RF 1973 SC1461 (648), and R 1982 SC 710 (21). The legislative provision under consideration was the State Legislature’s power to prohibit the publication of proceedings, including portions ordered to be expunged by the Speaker, and whether such a privilege could override the fundamental right to freedom of speech and expression, as well as the freedom of the press guaranteed by Articles 194(3) and 19(1)(a) of the Constitution of India.

The petitioner, who served as the editor of the English daily newspaper Searchlight published in Patna, received a notice from the Secretary of the Patna Legislative Assembly requiring him to appear before the Assembly’s Committee of Privileges and to show cause why no disciplinary action should be taken against him for alleged breach of the privileges of the Speaker and the Assembly. The alleged breach consisted of publishing in full a speech delivered within the Assembly by a member, despite a direction from the Speaker that certain portions of the speech be expunged. The petitioner contended that the notice and the contemplated action of the Committee violated his fundamental right to freedom of speech and expression under Article 19(1)(a) and his personal liberty under Article 21, asserting that, as a newspaper editor, he was entitled to the full benefits of press freedom. The respondents relied upon Article 194(3) of the Constitution and argued that the proceedings of the House, following the practice of the British House of Commons, were not ordinarily intended for public publication, and that it was impermissible to publish any part of a speech that the Speaker had ordered to be expunged because such parts did not form part of the official record, thereby constituting a clear breach of legislative privileges. The Court was asked to determine two principal questions: first, whether the British House of Commons possessed the authority to entirely prohibit publication of its proceedings or to prohibit publication of those portions that had been ordered to be expunged; and second, assuming that the British House of Commons possessed such authority and that this authority was transferred to State Legislatures under Article 194(3), whether the legislative privileges provided by that article could prevail over the fundamental right guaranteed by Article 19(1)(a).

The Court observed that the Bihar Legislature had openly admitted that it had not enacted any statute governing its powers and privileges under Entry 39 of List II of the Seventh Schedule to the Constitution. Consequently, the issue that arose for consideration was to determine what powers, privileges and immunities the British House of Commons possessed at the moment the Indian Constitution came into force. The Court, speaking through the Chief Justice and three learned judges, held that there could be no doubt that the liberty of the press was inherent in the freedom of speech and expression guaranteed to every citizen by Article 19(1)(a) of the Constitution, and that this liberty necessarily included the freedom to propagate ideas through the freedom of circulation. The Court relied upon the decisions in Romesh Thappar v. State of Madras, [1950] S.C.R. 594; Brijbhushan v. State of Delhi, [1950] S.C.R. 605; and Express Newspaper Ltd. v. Union of India, [1959] S.C.R. 12. It was further explained that the freedom of the press in India flows directly from the constitutional guarantee of free speech and expression and does not rest upon any higher principle, nor is there any special privilege attached to the press as a distinct entity. The Court also referred to Arnold v. King Emperor, (1914) L.R. 41 I.A. 149, to support this view.

A review of the historical development of parliamentary privileges in England demonstrated beyond doubt that, at the time the Indian Constitution was adopted, the British House of Commons possessed the power or privilege to forbid the publication of even a true and faithful report of its debates or proceedings, and, with even greater justification, the power to prohibit the publication of any inaccurate or distorted version of such debates and proceedings. These historic powers and privileges were the source of the authority conferred on Indian State Legislatures by Article 194(3) and on the Houses of Parliament by Article 105(3). The Court rejected the contention that Article 19(1)(a) could control the latter portion of Article 194(3) or Article 105(3), and that the powers, privileges and immunities granted by those provisions must yield to the fundamental right guaranteed under Article 19(1)(a). Because Articles 194(3) and 105(3) occupy the same supreme position as the provisions of Part III of the Constitution and are immune from the operation of Article 13, the Court applied the principle of harmonious construction. Accordingly, the general provision of Article 19(1)(a) must yield to the specific provisions of Article 194(1) and the latter part of clause (3), rendering Article 19(1)(a) of no assistance to the petitioner. The Court applied the precedents set in Ramjilal v. Income‑tax Officer, Mohindergarh, [1951] S.C.R. 127 and Laxamanappa Hanumantappa v. Union of India, [1955] 1 S.C.R. 769, while disapproving Anand Bihayi Mishra v. Ram Sahay, A.I.R. (1952) M.B. 31, and explaining the reasoning in Gunapati Keshavyam Reddy v. Nafisul Hasan, A.I.R. (1954) S.C. 636 as based on a concession by counsel. Finally, the Court held that the petitioner could not claim a breach, either actual or threatened, of his fundamental right under Article 21, because Article 194(3) read with the rules framed by the Bihar Legislative Assembly in the exercise of its power under the Constitution provided the procedural mechanism for enforcing such privileges.

In the matter before the Court, it was observed that Article 194 of the Constitution prescribed the procedure for enforcing the powers, privileges and immunities conferred by that article, and that any deprivation of personal liberty resulting from proceedings before the Committee of Privileges would have to follow a procedure established by law. The Court further held that it was not within its jurisdiction to fix a specific time limit for moving a motion on privilege so as to require the subject of the motion to be a recent occurrence as contemplated by the rules; that determination was left exclusively to the Speaker of the House. Likewise, the period within which the Committee of Privileges must submit its report was deemed a matter to be decided between the House and its Committee, and the individual whose conduct was under investigation could not intervene in that timing. The Court explained that, in law, an order of the Speaker directing the expungement of a portion of a member’s speech could be treated as if that portion had never been spoken, and that presenting a report of the entire speech in spite of the Speaker’s order might be considered a perverted and unfaithful account, which on its face could constitute a breach of the Assembly’s privilege. However, the Court emphasized that the ultimate determination of whether a breach of privilege had actually occurred was a question for the Assembly alone to decide. Justice Subba Rao observed that the second part of Article 194(3) was a transitory provision and did not enjoy a higher sanctity than the first part. While a law enacted by a State Legislature under the first part would be void to the extent it contravened Article 19(1)(a), unless saved by Article 19(2), there was no reason to exempt the powers, privileges and immunities granted by the second part from the impact of fundamental rights. Since there was no inherent inconsistency between Article 19(1)(a) and the second part of Article 194(3), both must be given full effect through a harmonious construction. Consequently, the wide powers and privileges enjoyed by the Legislature and its members should be exercised in a manner that does not impair the fundamental rights of citizens, especially those who are not members of the Legislature. In any conflict between the two provisions, Article 19(1)(a) must prevail over Article 194(3), and the privilege must yield to the extent that it affects the fundamental right. The Court applied the decision in Gunapati Keshavarm Reddy v. Nafisul Hasan, A.I.R. (1954) S.C. 636, in reaching this conclusion. The Court also noted that at the commencement of the Constitution, the British House of Commons possessed no privilege to prevent the publication of a correct and faithful report of its proceedings, except in the case of secret sessions held under exceptional circumstances. Its privilege was limited to preventing mala fide publications that were garbled, unfaithful or expunged. In the present case, the Court found that neither the notices issued nor the documents attached to them disclosed any mala fides on the part of the petitioner, nor did they indicate that the petitioner had knowledge that any portion of the speech had been expunged by the Speaker.

The Court observed that the petitioner knew that the Speaker had expunged a portion of the speech. Consequently, even if Article 194(3) were held to prevail over Article 19(1)(a), the petitioner would still be entitled to succeed. The Court relied upon the authority of Wasan v. Walter (1868) L.R. 4 Q.B. 73 in reaching this conclusion. This matter arose in original jurisdiction as Petition No. 122 of 1958, filed under Article 32 of the Constitution for the enforcement of fundamental rights. The petition was heard on the dates 16 October, 17 October, 28 October, 29 October, and 30 October 1958. Counsel for the petitioner pleaded the case before the Court. The principal issue the Court had to determine was whose privilege had been engaged and violated – the privilege of the press or that of the House of the Legislature. The Court held that the notice served on the petitioner by the Privileges Committee of the Bihar Assembly was illegal and invalid. Moreover, the Court found that the very constitution of the Privileges Committee was illegal because the Chief Minister of the State, Dr S. K. Sinha, had acted as Chairman of that Committee. This circumstance, the Court noted, gave rise to a serious conflict of interest that tainted the Committee’s authority.

On 30 May 1957 a debate was held in the Bihar Legislative Assembly during which M. P. N. Singh, one of the senior members of the Assembly, delivered a speech criticizing the administration of the State as run by Chief Minister Dr S. K. Sinha and citing several instances of favouritism. The Speaker then decided that a portion of the speech was objectionable, ordered it to be struck off, and directed that the offending part be expunged from the record. No specific direction was issued to the press regarding publication of the speech. The opposing party claimed a right to prohibit all publication of the proceedings, a right that the House of Commons possesses historically but never exercises. The official authorised report of the debate was published on 2 January 1958. The daily newspaper ‘The Search Light’ published a report of the Assembly’s proceedings on 31 May 1957. A privilege motion was subsequently moved, referred to the Committee of Privileges, and no vote was taken on the motion. The motion also failed to specify any time‑limit for the Committee to present its report, contrary to the requirement of Rule 215, which mandates submission within one month. Nevertheless, the petitioner did not receive a notice to show cause until 18 August 1958, more than a year after the debate, an action that the Court characterized as demonstrating malice on the part of the Privileges Committee. The Court held that the Committee’s action raised constitutional questions affecting the petitioner’s fundamental right to freedom of expression. The Legislature cannot possess a privilege that deprives citizens of the fundamental rights guaranteed by the Constitution, particularly the freedom of expression under Article 19(1)(a). In the motion the charge was framed that the speech had been published in its entirety, a charge that the Court examined in light of the foregoing findings.

In this matter the charge framed against the editor was that he had published a report of the proceedings which was both perverted and unfaithful, and that he had also printed portions of the speech that had been ordered by the Speaker to be expunged, thereby contravening the Speaker’s directive. Judge Wanchoo observed that if publishing the expunged portions rendered the report false, then the report could only be described as perverted and unfaithful. Judge Daphtary concurred, stating that the report was unfaithful because it was not a true account and because it included the portions that had been removed. The reference to the order had been made not by the House as a collective body but by the Speaker personally. The petitioner was therefore entitled to challenge the procedure, especially since one ground of his objection was that the motion concerning the alleged breach had not been put to a vote.

During the hearing several important questions emerged. One question concerned whether a committee chaired by the Chief Minister, who possessed a personal interest in the case and could therefore be presumed to have a real bias, could lawfully conduct an investigation and recommend punishment. Judge Daphtary objected to the use of the term “bias,” noting that the petition did not contain any allegation of bias. He added that an allegation of mala‑fide conduct was a much stronger claim than a mere suggestion of bias. The Chief Justice then explained that Article 19(1) of the Constitution guarantees fundamental rights against laws made by the State, but that there are no fundamental rights that can be asserted against the Constitution itself. He reasoned that if the Constitution itself provides the legislature with certain privileges, those privileges cannot be challenged on the basis of fundamental rights, because the Constitution supersedes any statutory law. He further observed that where the Constitution allows the House to enjoy privileges, Article 19(1) cannot override those constitutional provisions. The Chief Justice relied upon the first amendment of the United States Constitution, on which the rights in Article 19(1) are modeled, citing Cooley’s “Constitutional Law” page 350 and the decision in Express Newspapers (Private) Ltd. v. Union of India, reported in 1959 S.C.R. 12 at 121. Judge Sinha added that American citizens tend to be more outspoken and that English precedents might offer better guidance than American ones in this context.

Finally, the Court examined Article 194(3), which governs the powers, privileges, and immunities of the legislatures. The Court held that Article 194(3) is subject to the Constitution’s provisions and cannot be interpreted to abridge the fundamental rights guaranteed by Article 19(1). Article 194(3) incorporates procedures derived from the British House of Commons concerning legislative privileges, but any such power or privilege that conflicts with fundamental rights cannot be deemed valid. The Court emphasized that while the legislature may adopt British procedural rules, the privilege cannot contravene fundamental rights, lest the legislature assume a sovereignty that exceeds constitutional limits. The Court noted that even in England, the historic ban on publishing parliamentary proceedings had disappeared after the sixteenth century, and that today legislative proceedings are open to the public, giving citizens the right to know what occurs in the House.

The Court noted that the public also has a right to know how any part of the legislative proceedings may be ordered to be removed or expunged. It referred to the so‑called Blitz case, Gunupati Keshavram Reddy v. Nafisul Hasan, A. I. R. 1954 S. C. 636, in which the Supreme Court ordered that a newspaper correspondent, who had been detained by the Speaker of the Uttar Pradesh Legislative Assembly on a claim of breach of privilege, be set free. The respondent was never produced before a magistrate, and on a writ of habeas corpus the Court ordered his release. The judgment emphasized that Article 20 of the Constitution prevailed and that Article 194(3) could not be construed so as to defeat the liberty guarantee enshrined in Article 20. The Chief Justice observed that if privileges are conferred by the Constitution itself, the question of fundamental rights does not arise; Article 19(1) restrains laws made by a state government, while fundamental rights do not override the Constitution. He further indicated that counsel could argue that the Bihar Legislative Assembly did not possess the powers it claimed, and that the issue before the Court was whether the Assembly truly had such powers under the Constitution.

In explaining the comparative context, the Court observed that England has no written constitution and that, although the House of Commons once claimed the right to prohibit publication of its proceedings, it never actually exercised that right in practice. By contrast, the United States Constitution grants full freedom to publish the proceedings of its House, including any portions that might be expunged. Consequently, the Court held that Article 194(3) must be read harmoniously with Article 19(1), and its provisions must be consistent with the fundamental rights guaranteed by the Constitution. While Parliament in England is supreme and not bound by a written constitution, in India the Constitution is supreme. The right to expunge material may be asserted only for the purpose of maintaining an official record and cannot be used to impose a total prohibition on publication. The Court found a common basis for this principle in both American and English democratic systems, emphasizing that citizens have a right to know what occurs in the House so that they can exercise their franchise responsibly. If people have a right to see and hear the proceedings, those who cannot be physically present must be able to learn of the proceedings through published reports. The Court cited Wason v. Walter, (1868) L. R. IV Q. B. 73, 95, and noted that counsel referred to the standing orders of the British House of Commons as set out in May’s Parliamentary Practice.

The judgment further clarified that Article 194(1), taken as a whole, is subject to the provisions of the Constitution, including the provisions of Article 19. If Article 194(3) were to import the complete immunity enjoyed by the House of Commons, it would be impossible to preserve the consistency between Article 194(1) and Article 194(3). Article 194(1) expressly makes the freedom of speech and related freedoms in State legislatures subject to the Constitution. Therefore it is untenable to contend that Article 194(3) is not subject to constitutional limitations. Under Article 194(1) it is clear that a member of a State legislature does not enjoy the same extent of immunity as a member of the House of Commons.

In this case, the Court observed that a member of a State Legislature in India did not enjoy the same unrestricted freedom as a member of the British House of Commons, who was described as having complete freedom without any limitation. Article 194(1) of the Constitution, the Court explained, expressly makes the freedom of speech enjoyed in a State House subject to the constitutional provisions. The Chief Justice remarked that perhaps only one of the immunities had been made subject to the Constitution. The Court further noted that the privileges and rights of the House of Commons also extended to elections, and that the power of that House to determine the validity of its own elections could not be challenged before any tribunal or court. In contrast, Indian elections are conducted under Chapter XV of the Constitution, and such elections may be challenged in High Courts, tribunals, and other authorities. The Chief Justice emphasized that the Constitution provides a separate scheme for powers, privileges and immunities under Article 194(3), while Chapter XV deals with elections, showing a clear separation of the two subjects. Consequently, a reasonable interpretation of Article 194(3) requires that, like Article 194(1), it be fully subject to the Constitution.

The Court then turned to the question of whether the Chief Minister could serve as Chairman of the Committee of Privileges, a body endowed with quasi‑judicial powers to summon witnesses and demand the production of evidence. Since the Chief Minister had a personal interest in the matter, the Court held that his participation would contravene the principles of natural justice. The Chief Justice asked whether the argument was that the Chief Minister could not be Chairman at all, or that any person with an interest should be excluded; the Court limited its conclusion to the presence of an interest. Because the Committee’s voting could be tied if the Chief Minister were absent, the Court cited Rule 62 of the Standing Orders of the House of Commons to illustrate why the Chief Minister could not hold the chair.

Finally, the Court examined the procedural requirements. Only the House itself has the right to refer a question of breach of privilege, and Rule 207 of the Assembly obliges that the matter be of “recent occurrence.” In the House of Commons, “recent occurrence” was interpreted to mean no more than ten days. A privilege motion takes precedence over any motion to adjourn. Under Rule 215, no specific deadline was fixed for the Committee’s report, but the rule required that the report be submitted within a month. The House had not extended that time, and therefore the report was not filed within the permitted period.

In this matter the Court noted that the Privileges Committee had not submitted its report, and because no extension of time had been granted, the Committee was considered “functus officio.” The petitioner therefore applied to the Court seeking an order prohibiting the proceedings against him and invoking protection of his fundamental rights. The Court observed that either the Committee had become “functus officio” or, alternatively, the failure to file the report within the period prescribed by the first proviso of Rule 215 could be interpreted as indicating that the Committee had nothing to recommend. Regarding the statutory procedure, the Court held that Rules 208 and 209 must be read conjointly and that objections had been raised to the motion at the time it was moved. The Court further stated that a true and full account of the proceedings could not be described as unfaithful or perverted, and that it was for the Court to decide whether a breach of privilege had occurred. In the recorded exchange, Justice Sinha asked whether such a matter fell within the Court’s jurisdiction or was the exclusive domain of Parliament, and the Chief Justice replied that the definition of privilege could be articulated, but the determination of a breach of privilege belonged to the House. The Court concluded that no breach of privilege had been established. The petitioner claimed that the reporting of the proceedings was not a privilege that the House could assert and emphasized that he had not published the expunged portion. The Solicitor‑General, C. K. Daphtary, maintained that the decision rested with the House. The petitioner further asked whether he was not entitled to approach the Court as a guardian of his fundamental rights when the House was asserting powers to punish, proceed against, and coerce him. The Court considered whether a petition under Article 32 could be entertained. Counsel for the respondents, including the Solicitor‑General and other counsel, argued that the focus should be on the extent of the allegations that fell within Article 32, which deals solely with violations of fundamental rights. The Court explained that even if the exercise of powers, privileges, or immunities breached or contradicted fundamental rights, those powers and privileges remained valid because they were conferred by Article 194(1) of the Constitution. The Court affirmed that every citizen enjoys the constitutional right to freedom of speech, and a legislator likewise enjoys this freedom by virtue of citizenship. Only rules or regulations that exceed the legislature’s authority may be questioned, not the constitutionally granted powers themselves. Finally, the Court observed that constitutional amendments are not limited by fundamental rights, and consequently amendments may modify or even remove fundamental rights.

The Court observed that the amendments introduced in Articles 31(a) and 31(b) had the effect of modifying the rights previously guaranteed. It noted that Article 194 was inserted into the Constitution by the framers at the same time as the other provisions, and therefore it occupied an equal position with those provisions. Consequently, unless a provision expressly makes a reference to another provision, Article 194 could not be subordinated to any other part of the Constitution. The Court emphasized that all portions of the Constitution were drafted by the same group of people and were intended to be co‑equal; none could be elevated above another. In response to the observation by Justice Subba Rao that the Constitution gave a paramount status to fundamental rights, the Court affirmed that fundamental rights are indeed fundamental to human beings. When the legislature enacts a law defining its own powers and privileges, the Court held that such a law would not be invalid merely because it touches upon fundamental rights, as it would be an exercise of the constituent power. The framers deliberately chose not to enumerate the legislature’s powers but left that determination to the legislature itself. Addressing Justice Subba Rao’s query on whether a law made by the legislature would be subject to Article 19, the Court rejected the suggestion of any anomaly, explaining that the Constitution itself had already specified the powers and privileges of the legislature. Since those powers are exercised under the authority granted by the Constitution, they cannot be subjected to the constraints of fundamental rights, and the contention that the Constitution made such powers subordinate to fundamental rights was therefore untenable. Justice Bhagwati’s remark that fundamental rights occupy a high pedestal and that other provisions must not infringe them was noted, but the Court clarified that any provision that is constitutionally valid remains so unless expressly made dependent on another provision. All parts of the Constitution stand on the same plane unless a specific provision states otherwise; they are otherwise independent. No part of the Constitution can be declared void in isolation, for striking down any part would effectively strike down the Constitution itself. The Court therefore affirmed that Article 194 must retain the status of a constitutional law. The first issue, according to the Court, was that the powers, privileges and immunities conferred by Article 194(3) are not subject to Article 19. Having resolved that point, the Court turned to the second issue of determining the scope of those powers and privileges. It referred to English practice, noting that historically breaches of privilege were treated as contempt of the House and that disobedience of the Speaker’s order likewise constituted contempt, illustrating the breadth of the legislative body's authority in such matters.

The Court observed that the argument advanced by the other side was fallacious and referred to quotations from May’s Parliamentary Practice. It held that Standing Order 62 did not apply to the Committee of Privileges; the order applied only to select committees and standing committees, whereas the Committee of Privileges is a sessional committee appointed at the beginning of each parliamentary session. The Court further explained that the House of Commons possessed the power to make rules from time to time and to regulate its own procedure. Consequently, the sole question for the Court was whether the House had the authority to follow up a breach of its privileges. The Court noted the observation of Justice Bhagwati that a power to make rules could not be unlimited and that, in an effort to protect immunities and privileges, one could not expand those immunities beyond their proper limits. Although precedents of the House of Commons dating back to the sixteenth or seventeenth centuries were not available, the Court found sufficient authority in May’s Parliamentary Practice to support the contention. The Court stated that, provided debates were reported correctly and faithfully, the right to prevent publication was not enforced. Journalists who sat in the galleries did so by the leave and licence of the House and on its sufferance. When the Speaker declared that a particular remark was not to be published, the Court held that it could not be published. Justice Subba Rao’s remark about the purpose of expunging a portion of the proceedings was considered, and the Court said that the expunged portion was not deemed to have been stated in the House. The Court cited a case of the House of Lords where the publication of an expunged portion gave rise to a breach of privilege, emphasizing that the privilege of the House to control publication always existed, even if it was not always exercised. The Court observed that the House has ever been zealous in protecting its privileges. It further recalled that, in India, House privilege was asserted during the Presidency of Mr Vithalbhai Patel, when a heated debate arose as to whether the control of the precinct of the House vested in the Viceroy or in the President of the Assembly. Mr Patel, in order to assert the privilege of the House, ordered the galleries to be cleared. The Court noted that privilege is not ordinarily exercised when a report is faithful and accurate, but it is necessary to ensure that a member can speak without fear of misreporting, lest his freedom of speech be affected. The Court affirmed that the power and privilege to decide what constitutes a breach lies with the House of Commons, and the courts may examine whether a particular privilege exists. The Chief Justice’s observation that an excessive claim of privilege might affect fundamental rights was addressed, and the Court held that the effect of the privilege depends on the wording of the notice. In the present case, the motion and the Committee’s notice had to be read together, and it would not be correct to give fundamental rights paramountcy over other parts of the Constitution. The Court then turned to the allegations of “mala fide”. It asked what “mala fide” meant and who could deny it except the secretary, since the charge of “mala fides” had been levelled against the Committee of Privileges. Justice Sinha’s comment that the allegation included the Chief Minister was noted.

In this matter the Court examined the claim that the Committee of Privileges was acting mala fide, that is, with dishonest intent, in order to silence the petitioner and prevent him from expressing his views. The petitioner alleged that the Committee, which was chaired by the Chief Minister, had been influenced by the Chairman and was therefore biased. The Court observed that there was no evidence or allegation that all members of the Committee belonged to the Chairman’s party, and it was clear from the record that members of other political parties also sat on the Committee. Consequently, it could not be said that the Committee consisted solely of adherents of the Chairman.

The Court further noted that the appropriate response to the allegation of mala fide was for the Secretary to deny the charge, since the Committee had been appointed by the Speaker and the Chief Minister had been Chairman long before the present dispute arose. The petitioners also raised the issue of a time lag, pointing out that no step had been taken for an entire year after certain articles were published, and that the Committee only revived the matter after that delay. The Court explained that the delay was intended to give the party an opportunity to correct itself, and that the mere passage of time did not render the Committee powerless. It rejected the argument that the Committee had become “functus officio” because of the lapse, holding that the Committee retained the authority to launch prosecution even though it waited three or four months before issuing a notice of breach of privilege.

Regarding the procedural objections raised, the Court observed that the House of Commons consisted of three hundred and sixteen members, and that no member had opposed the motion in question. Therefore, the alleged malice of the Committee could not be inferred simply from the fact that the notice was issued after a delay. The Court emphasized that the House, as the ultimate decision‑making body, had not rescinded its earlier determination, and that the Committee was merely carrying out the House’s instructions. With respect to the claim that the Committee had failed to follow the standing Order 62 of the House of Commons, the Court clarified that this standing order did not apply to the Privileges Committee because it was a sessional committee. The Court also addressed the reference to rule 215 concerning time limits, noting that the House’s own actions and resolutions governed the procedure, and that internal management of the Committee’s timetable fell within the discretion of the House rather than being subject to external enforcement.

The House appointed one of its committees to investigate the matter and required the committee to submit a report within a specified period. The House retained the power to extend that period or to broaden the temporal scope if it deemed it necessary. The Chief Justice observed that the rule would continue to apply as long as it remained in force. The character of the rule required detailed examination because it was a rule established by the House to guide the committee’s work. Such rules were created for the benefit of the House itself and were not intended to be enforced by any external party. Regarding the issue of malice, the Court explained that if an act is lawful, the presence of malicious intent does not render the act unlawful; a malicious motive cannot convert a lawful action into an illegal one. The allegation of malice was that the Chief Minister, who was the Chairman of the Committee, might act with bias. The Court noted that the Chief Minister might not be present and that the Speaker could appoint another person to chair the Committee. Consequently, it was unreasonable to presume that the Committee would act maliciously merely because a particular individual held a responsible position. Counsel for the Attorney‑General referred to the powers of the legislature of Nova Scotia and summarized the law relating to legislative powers and privileges in response to the argument.

The Court then turned to the constitutional provisions governing legislative privileges. It held that Article 194(1) is not a mere repetition of Article 19(1)(a); rather, it constitutes an abridgment of the freedom of speech and expression that members of the legislature would otherwise enjoy as ordinary citizens. Article 194(3) does not create a constitutional exemption from the freedoms guaranteed by Article 19(1)(a); instead, it is subject to the provisions of Part III of the Constitution and to Article 21. Accordingly, Article 194(3) does not import the full range of powers, privileges, and immunities that exist in the British House of Commons, such as the unrestricted right to prohibit publication. The Court reiterated that Article 194(1) itself is conditioned by the Constitution, and that Article 194(3) must be read in its entirety as subject to constitutional limitations. Article 32 was highlighted as a crucial provision for enforcing fundamental rights, allowing writs to be issued for breaches of those rights, including violations related to taxation. Consequently, Article 194 does not enlarge the scope of Article 19(1)(a); it actually narrows it, because the freedoms it covers are further constrained by the House’s own rules and standing orders. The Chief Justice questioned whether Parliament, under its residuary legislative powers, could enact a law that restricts the freedom of speech of State Legislature members. The Court noted that while Article 19(1) establishes a primary right, Article 19(2) permits reasonable restrictions, and Article 194(1) subjects legislative speech to the Constitution, thereby limiting the extent of that freedom.

In this portion of the judgment the Court examined the extent to which speech by members of a State Legislature could be limited. It observed that the Constitution itself already imposed certain restrictions on speech and questioned whether reading Article 194(1) together with Article 19(1) would create an inconsistency. The Court noted that Article 194(2) is a consequence of Article 194(1). It asked how the powers, privileges and immunities that Article 194 might import wholesale from the British House of Commons could be exercised in India, pointing out that Article 208 also deals with legislative powers. The Court held that any additional restriction arising from the exercise of those imported privileges would amount to an unreasonable restriction. It explained that while Article 194 confers powers, privileges and immunities, Article 208 grants the power to punish, but only subject to the Constitution. The Court stressed that the British House of Commons could not punish a person twice; a person could not be found guilty of a breach of privilege both by an ordinary court and by the House of Commons. Accordingly, both Articles 208 and 194 must operate within the bounds of Article 21, which prohibits deprivation of personal liberty except according to a lawful procedure.

The Chief Justice remarked that the discussion had not yet reached the stage of Article 21 because the petitioner’s liberty had not been taken away. The petitioner, however, claimed that his liberty was threatened by a notice that alleged a prima‑facie case, mala fide intent and bias. He referred to the claim that the House could act as the sole judge of its privileges and argued that even such a claim must be subject at least to constitutional rights. The Chief Justice asked whether, if Article 194(3) incorporated all privileges, those privileges could themselves constitute a procedure established by law. The Court observed that Article 21 never envisaged a situation where no procedure existed. It queried whether, if no procedural safeguards were followed and a warrant was issued, the warrant could be challenged before a court. The Chief Justice added that if a man were arrested, the matter would then fall within the jurisdiction of the judges.

Article 21, the Court reiterated, guarantees that personal liberty may be interfered with only pursuant to a lawful procedure enacted by legislation. Such a law must be substantive and valid. The Court stated that if the judges accepted that fundamental rights are supreme, then Article 194 must be read in conjunction with Article 19(1), and the American perspective could be instructive. It warned that if the House were treated as the sole judge, Articles 21 and 22 would become unavailable.

The Chief Justice further asked whether allowing unrestricted publication of everything said in the House would render the concept of “expunging” meaningless, since expunged material would effectively not have been said. The petitioner answered affirmatively but asked whether the House would take notice of such publications. He argued that the public has a right to know what was said and what was expunged, noting that expunction serves the purpose of maintaining an official record. He cited the practice in Hansard, where expunged portions are not removed but are marked with red lines. Justice Sinha observed that the argument advanced was that the language of Article 194(2) prohibited any publication at all, a point that the Court was required to consider further.

The Court observed that if the argument of an absolute prohibition on publication were accepted, the respondent would be placed in a privileged position, but questioned whether such a position could be permitted under Indian law. It noted that the House of Commons debates matters of public importance and that there exists a right to publish the proceedings of that House. The Court recorded the remark of a Justice that the petitioner “claims a total right to publish.” It affirmed that the petitioner claimed a full right to publish everything that occurs in the House, while expressly rejecting any claim to publish a distorted or inaccurate report. The petitioner asserted a right only to publish a faithful account of what was said or done.

The Court then turned to the argument presented by the learned Solicitor‑General that Article 194(3) of the Constitution was not subject to the Constitution’s other provisions. It noted that the Constitution empowers the President to enact all laws and regulations for Part D States, and that the relevant provision did not expressly state that it was subject to fundamental rights. The Court asked whether the President could enact legislation that would effectively remove fundamental rights, or whether it could be said that citizens of Part D States did not enjoy any fundamental rights. It emphasized that every provision of the Constitution must be read in relation to the chapter on fundamental rights, and that in the absence of a law, the power to make rules could conflict with those rights. The Court explained that “law” may denote a power or authority.

Reference was made to a Justice’s observation that, under Article 194(3), a State legislature possesses all the powers, privileges and immunities of the House of Commons, including the power to prevent the publication of a distorted version of its proceedings. The Court considered whether an order issued by the legislature, compelling a person to appear before its bar, would fall within the meaning of “law.” It held that “law” includes orders, regulations or notifications, and clarified that such an order would be an executive order issued by a public authority. The Court defined “State” to include the Government, Parliament, Legislature and local authority, and therefore affirmed that an order passed by such authority is a law.

Accordingly, the Court stated that Article 21 covers acts done under enacted law. It observed that a Committee of the House was moving to deprive the petitioner of personal liberty and queried what remedy or procedure was available. It noted that some might argue the Constitution itself constitutes law and need not be enacted by the Legislature, and that if Article 194 imports all privileges of the House of Commons, those privileges are self‑evident. The Court further examined whether an order, being “law” as defined, would be valid if it infringed fundamental rights, and recalled a Justice’s observation that the State could enact a law relating to contempt of court, raising the question of validity if such a law were absent.

In this case, the Court observed that even without a specific statutory provision, the judiciary could still initiate contempt proceedings against individuals. The Court questioned whether an inherent power existed to do so. It noted that the High Courts possessed the authority to impose punishment, but raised the issue of what limits applied to punitive measures. The Chief Justice remarked that fundamental rights were called fundamental because they protected valuable human rights, and that other constitutional provisions could be equally effective. The Court emphasized that any law or governmental action must comply with the rights guaranteed by the Constitution, and that even the power to punish must operate within the scope of the chapter on fundamental rights. The Court asked whether a person committed for contempt of court without a fully established case could obtain redress, and observed that justice was not a secluded virtue that could deny a remedy under ordinary law. Justice Subba Rao observed that a law enacted by the Legislature concerning privileges would be subject to the fundamental rights, and that in the absence of such a law, the privileges would not escape the reach of fundamental rights. Justice Sinha added that this consideration gave the Legislature a reason not to enact such a law at all. The Court held that Article 194(3) should be read as falling within the ambit of fundamental rights. While the first part of the article was already accepted as such, the second part was also necessarily subject to fundamental rights by implication. Consequently, privileges were amenable to judicial review; the courts could examine the nature of a claimed privilege and, based on the facts, determine its constitutional validity. The Court referenced the decision of the Curative Advisory Board dated 12 December 1958. The judgment was delivered by Chief Justice Das, with Justices Bhagwati, Sinha and Wanchoo concurring, and a separate judgment by Justice Subba Rao. Chief Justice Das described the petitioner as an Indian citizen who, by profession, was a journalist and served as the editor of “The Searchlight”, a well‑known English daily newspaper with extensive circulation in Patna and other parts of Bihar. The first respondent was identified as the Chief Minister of Bihar and the Chairman of the Bihar Legislative Assembly’s Committee of Privileges. The Committee of Privileges had been impleaded as the second respondent, treated as a legal entity capable of suing or being sued. The third respondent was described as the Secretary to the Bihar Legislative Assembly, also treated as a juridical person, although the individual occupying that office was not named in the title. Since no objection was raised to the manner in which the second and third respondents were impleaded, the Court found no need to comment further on the propriety of that procedure. The petition, filed under Article 32 of the Constitution, raised several important questions of far‑reaching effect and arose from the circumstances described subsequently, beginning with a speech made in the Bihar Legislative Assembly on 30 May 1957 during the general discussion on the budget for 1957‑58.

Shri Maheshwar Prasad Narayan Sinha, who was a member of the Congress party serving in the Bihar Legislative Assembly, delivered a speech that was later characterised as one of the harshest criticisms of the manner in which the Chief Minister was administering the State. The Chief Minister, also a member of the Congress party, is identified in the petition as the first respondent. In his address, Shri Maheshwar Prasad Narayan Sinha asserted that the Chief Minister was being steered by the counsel of a gentleman commonly recognised as Shri Mahesh Prasad Sinha, a former minister of Bihar who had suffered defeat in the most recent general elections. The speaker alleged, as a matter of common knowledge, that Shri Mahesh Prasad Sinha was actively involved in the selection of ministers and in the composition of the Ministry, and that his influence encouraged corrupt practices by the Government.

The allegations further detailed that the Government had transferred a Muslim District Engineer from Darbhanga to Muzaffarpur with the purpose of exploiting that officer’s influence over Muslim voters in Muzaffarpur. Additionally, the member highlighted the case of a District and Sessions Judge who, despite a recommendation for his removal issued by the Chief Justice after a regular judicial inquiry conducted by a High Court judge, was merely transferred to another location due to the intervention of Shri Mahesh Prasad Sinha. Shri Maheshwar Prasad Narayan Sinha also censured the appointment of Shri Mahesh Prasad Sinha as Chairman of the Bihar State Khadi Board, describing it as a maneuver designed solely to permit him to remain in Patna where residential accommodation had been secured for him on Bailey Road. The distribution of ministerial portfolios likewise attracted severe criticism from the member.

The record shows that immediately after the remarks concerning the Khadi Board chairmanship, another Assembly member, Shri Satendra Narain Agarwal, raised a point of order. The Speaker responded in Hindi, stating: “Mahesh Babu ke Sambandh Me Jitni Baten Kahi Gain Uske Bare Me Maine Kah Diya Ki Us Tarah Ki Bat Ko Proceeding Se Nikal Diya Jayega Lekin State Khadi Board Ke Chairman Ke Bare Me Jo Kuch Kahenge We Karyawahi Me Rahenge or Iske Bishai Me Manniya Sadasya Ko Kahane Ka Hak Hai.” The translation of this statement is approximately: “I have already ruled that whatever has been said about Mahesh Babu will be removed from the proceedings, but whatever may be said about the Chairmanship of the State Khadi Board will remain in the proceedings and the honourable member has the right to speak on that matter.”

Subsequently, on 31 May 1957, the newspaper Searchlight published a report of Shri Maheshwar Prasad Narayan Sinha’s speech. The report, which is reproduced as paragraph 2 of the petition and attached as “Annexure B,” contains the full text of the speech and forms part of the material examined by the Court.

The Court examined the material marked III in the petition, which consisted of the introductory portion of the newspaper report cited in the petition. For the purpose of determining the petition, the Court set out the opening part of that report, which read as follows: “BITTEREST ATTACK ON CHIEF MINISTER M. P. Sinha’s choice as Khadi Board chief condemned. Maheswar Babu’s scathing criticism of Government. (By our Assembly Reporter) Patna, May 30.” The report went on to state that one of the most severe attacks on the manner in which the Chief Minister was conducting the administration of the State was delivered in the Bihar Assembly on that day by Mr. Maheshwar Prasad Narayan Singh, a member of the Congress. In his speech he alleged that, contrary to the principles of good government, the Chief Minister was being guided by the advice of a gentleman who had been defeated at the poll and who stood condemned before public opinion. The report further noted that Mr. Singh actually named the gentleman whose counsel was said to be directing the Chief Minister’s actions. In the sixty‑minute address, which was punctuated by frequent applause from both the Congress and Opposition benches, Mr. M. P. N. Singh argued that corruption could not be eradicated unless the Chief Minister refused to be influenced by such undesirable elements. He asserted that it was common knowledge that, during the prolonged period of formation of the new ministry, many aspirants for ministerial and deputy ministerial posts had appealed to the defeated minister so that the latter could exercise influence over the Chief Minister.

The Court observed that the learned advocate for the petitioner did not dispute that the references to the defeated gentleman, identified by the public as Shri Mahesh Prasad Sinha, were intended to refer to that individual, and that all such references had previously been directed by the Speaker to be removed from the official record. On 10 June 1957, Shri Nawal Kishore Sinha, a member of the Bihar Legislative Assembly, gave notice to the Secretary of the Assembly that he wished to raise a question of breach of privilege of the House. The notice, addressed to the Secretary, read: “Sir, I give notice that I want to raise the following question involving a breach of privilege of the House, after question hour today.” The Speaker had ordered that all references to Shri Mahesh Prasad Sinha, former Industry Minister, made in the speech of Shri Maheshwar Prasad Narayan Singh on 30 May 1957, except the reference to his appointment as Chairman of the Khadi Board, be expunged from the proceedings. Despite that order, the newspaper “Searchlight” published the entire speech of Shri Maheshwar Prasad Narayan Singh, including every reference to Shri Mahesh Prasad Sinha that had been ordered to be removed. The Court therefore concluded that the publication constituted a breach of the privilege of the House.

In the petition the appellant submitted a copy of the edition of the newspaper Searchlight dated 31 May, and signed the document as “Yours faithfully, Nawal Kishore Sinha, M.L.A.” The record of the Assembly proceedings on 10 June 1957 is reproduced in annexure D to annexure III of the petition. That record shows that after Shri Nawal Kishore Sinha requested leave to move his motion, the Speaker read to the members the rule that governs the procedure when leave is sought and explains when an objection may be raised. Because no objection was made in accordance with that rule, the Speaker announced that the mover had obtained the House’s permission to present his motion. Shri Karpuri Thakur then said that he could not form an opinion until he saw what had been printed and what had been ordered not to be printed. In response, the Speaker read aloud the notice sent by Shri Nawal Kishore Sinha, which set out the grievance concerning the newspaper Searchlight. Satisfied with that clarification, the Speaker invited Shri Nawal Kishore Sinha to move his resolution. The MLA then said, “Sir, I beg to move that the matter be referred to the Privilege Committee of the House.” No amendment was proposed, and the Speaker put the question to the House; with no objection, the resolution was declared carried. The Committee of Privileges, identified as respondent 2, did not promptly consider the matter. While the issue remained before the Committee, sharp exchanges of accusations and counter‑accusations occurred between the petitioner and the Chief Minister, respondent 1, as reflected in the newspaper’s issues of 27, 28 and 31 May 1958. A further debate took place on 5 June 1958, lasting two hours in the Bihar Legislative Assembly, where members discussed the alleged failure of the State Government to protect the petitioner from attacks by goondas. These confrontations appear to have prompted the Committee of Privileges into action on 10 August 1958, when it adopted a resolution recorded in annexure II of the petition. The resolution stated that the question was whether Shri M. S. M. Sharma, editor, and Shri Awadhesh Kumar Tiwari, printer and publisher of Searchlight, should be called upon to show cause why appropriate action should not be taken against them for committing a breach of privilege against the Speaker and the Assembly by publishing a distorted and unfaithful report of the Assembly’s proceedings, including the expunged portions of Shri Maheswar Prasad Narain Sinha’s speech.

The Committee of Privileges ordered that the petitioner be summoned to appear before it on such dates that the Committee might fix for the consideration of the case against him, and that he also be required to attend any meeting of the Committee as directed. On 18 August 1958 the petitioner received a notice dated 14 August 1958, which had been issued by respondent three, the Secretary to the Bihar Legislative Assembly. The notice required the petitioner to show cause, on or before 8 September 1958, why appropriate action should not be recommended against him for an alleged breach of the privilege of the Speaker and the Assembly arising from a publication. Because one of the petitioner’s counsel raised a point concerning the exact wording of the notice, the full text of the notice was reproduced. It read as follows: “Government of Bihar, Legislative Assembly Secretariat. Confidential No. 3538‑1A. From Shri Enayetur Rahman, B.A., B.L., Secretary to the Legislative Assembly. To Shri M. S. M. Sharma, Editor, ‘The Searchlight’, Searchlight Press, Patna. Patna, August 13/14, 1958. Whereas a question involving breach of privilege of the Bihar Legislative Assembly arising out of the publication of a news item in the Searchlight, dated 31 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 10 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 8 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 8 September 1958, at 11 a.m., in the Official Sitting Room (Ground Floor) of the Assembly Buildings, Patna, and thereafter on such day or days and at such time and place as the Committee may from time to time appoint. You are also informed that if the matter comes to evidence, you may, if you so choose, adduce oral and documentary evidence relevant to the issue, and you must come prepared with the same on the date fixed in this behalf. Sd. Enayetur Rehman, Secretary to the Legislative Assembly.” Believing that the proceedings of the Committee of Privileges might lead to an adverse result, the petitioner filed a petition under Article 226 of the Constitution in the Patna High Court seeking a writ, order or direction to restrain the respondents from continuing the inquiry. The petition was listed for a preliminary hearing on 29 August 1958, at which point the petitioner urged the Court for the relief sought.

A day and a half before the High Court hearing for admission, the petitioner withdrew the petition on 1 September 1958, alleging that the withdrawal was made in order to avail himself of the fundamental rights guaranteed under article 32 of the Constitution. The present petition under article 32 was subsequently filed on 5 September 1958. The petitioner asserts that the notice issued by the Committee of Privileges and the contemplated action of that Committee infringe his fundamental rights to freedom of speech and expression under article 19(1)(a) and to personal liberty under article 21, and he seeks enforcement of those rights through the present petition. In response, an affidavit in opposition, signed by Shri Enayatur Rahman, the incumbent holder of the office of respondent 3, was filed on behalf of the respondents. That affidavit contends that the report contained in the challenged publication does not correspond to the authorised report of the proceedings of the House, because it includes remarks that, by order of the Speaker, were directed to be expunged and therefore did not form part of the official proceedings. The respondents further claim that, as a general rule, proceedings of the House are not ordinary business matters intended for publication, and that under no circumstance may portions of speeches that have been ordered to be removed be published, since they are not present in the official report. They describe such publication as a clear breach of the privilege of the Legislative Assembly, which is empowered to protect itself by calling the offender to account and, if necessary, imposing appropriate punishment. This contention is founded upon clause (3) of article 194, which confers on the Assembly all the powers, privileges and immunities enjoyed by the House of Commons of the British Parliament at the commencement of the Constitution. Counsel for the petitioner relies upon article 19(1)(a) and argues that, as a citizen of India and as an editor of a newspaper, the petitioner is entitled to the freedom of speech and expression guaranteed to all citizens and to the freedoms enjoyed by the press. Accordingly, the Court must examine the scope of press liberty generally and under the Constitution in particular. The judgment then refers to the historical development of freedom of speech and press in England, noting that these freedoms were secured after a prolonged struggle between the public and the Crown. A concise account of that struggle is recorded in the Constitutional History of England by Sir Thomas Erskine May, volume eleven, chapter nine, under the heading “Liberty of Opinion”. The narrative observes that initially the Church persecuted freedom of religious thought and subsequently the State suppressed political expression. The importance of the issue grew with the advent of printing technology, and the press subsequently endured strict censorship.

In the historical account, the author explained that under the English system any work that was to be printed required the approval of a licenser, and the printing of material without such approval attracted severe punishments. Political discussion, the narrative noted, was suppressed through the actions of the licenser, the Star Chamber, and even by the use of the dungeon, the pillory, mutilation and branding. During the reign of Queen Elizabeth, the narrative observed, the authority allowed printing only in the cities of London, Oxford and Cambridge, effectively interdicted elsewhere. The text quoted a contemporary observation that the first two Stuart monarchs displayed a tyrannical spirit by brutally persecuting authors, printers and importers of prohibited books, while also remarking that the heroic courage and constancy of those who endured the persecutions illustrated the love of freedom. The author further pointed out that the Petition of Right of 1628 made no reference to freedom of speech or to liberty of the press. Although the abolition of the Star Chamber initially suggested an improvement for press freedom, the Restoration period soon brought renewed trials for the press. The Licensing Act, cited as chapter 11 of the thirteenth and fourteenth years of Charles II, placed complete control of the press in the hands of the government; consequently, liberty of the press was again interdicted and even news could not be published without a licence. The description continued that the Glorious Revolution of 1688 and the Bill of Rights passed in the same year likewise omitted any guarantee of freedom of speech or press. However, in 1695 the House of Commons declined to renew the Licensing Act, and the lapse of that legislation was described as marking the triumph of the press. From that point onward, the theory of a free press was recognised and any writing could be published, although authors remained subject to the rigorous application of the law of libel. The narrative then quoted William Blackstone’s Fourth Book of Commentaries of 1769, page 145, in which Blackstone asserted that liberty of the press is essential to a free state, consisting in the absence of prior restraints on publication, but not in immunity from criminal censure when illegal material is published. He stated that every free person has an undeniable right to express his sentiments publicly, and that to forbid this would destroy press liberty, yet a publisher who issues improper, mischievous or illegal material must bear the consequences of his own temerity. The author cited Halam’s Constitutional History of England, which expressed the same view that press liberty merely means exemption from the licenser. Similar observations were attributed to Lord Mansfield, Chief Justice, in the case of King v. Dean of St Asaph (1784) 3 Trinity Reports 428. Consequently, the text concluded that liberty of the press principally comprises the ability to print without any prior licence, subject only to the consequences prescribed by law. This principle was characterised as a straightforward application of the rule of law, namely that no individual may be punished except for a clear breach of legal provisions. The author summed up that after a prolonged and strenuous struggle, the British people ultimately secured for themselves the greatest of their liberties – the liberty of opinion.

In the United States the right to hold and express opinions has been recognised as a fundamental liberty. Freedom of speech and liberty of the press have been protected separately and expressly in the constitutions of the great majority of the individual states. A compilation of the relevant constitutional provisions of the forty‑eight states has been presented in Cooley’s Constitutional Limitations, volume eleven, chapter twelve, pages 876‑880. Only fifteen states—namely Alabama, Arizona, Colorado, Idaho, Illinois, Indiana, Kansas, Missouri, Montana, Nebraska, North Dakota, Oregon, South Dakota, Washington and Wyoming—do not contain a specific reference to liberty of the press; instead they rely solely on a guarantee of freedom of speech. All the remaining states expressly mention both liberty of the press and freedom of speech in separate provisions. At the federal level the First Amendment, adopted in 1791, declares that “Congress shall make no law… abridging the freedom of speech or of the Press.” In addition, the Fifth Amendment and the Fourteenth Amendment each forbid the deprivation of life, liberty or property except in accordance with due process of law. Before India adopted its present Constitution there was no constitutional or statutory statement affirming either freedom of speech for the subjects or liberty of the press. Even the celebrated 1858 proclamation issued by Queen Victoria after the British Crown had firmly established authority over India made no reference to freedom of speech or press, although it declared that “none be in any wise favoured, none molested or disquieted by reason of their Religious Faith or Observances; but that all shall alike enjoy the equal and impartial protection of the law” (1) Dicey’s Law of the Constitution, ninth edition, page 247. Throughout the British period in India the press possessed no special or superior rights beyond those enjoyed by ordinary citizens. In the case of Arnold v. King‑Emperor (1), an appeal by a newspaper editor who had been convicted of criminal libel under section 499 of the Indian Penal Code, Lord Shaw of Dunfermline, delivering the Privy Council judgment, observed at page 169 that the notion of a distinct privilege attached to the press was a “time‑worn fallacy.” He explained that the journalist’s freedom is simply a component of the general freedom of the subject, and that, absent specific statutory provision, the journalist enjoys no higher privilege than any other individual. He further noted that the responsibilities inherent in publishing may, in the case of a conscientious journalist, encourage greater caution, but the scope of the journalist’s assertions, criticisms or comments is no broader than that of any other citizen.

In the view expressed earlier, no special privilege was attached to the position of a journalist. The Constitution that came into force on 26 January 1950 subsequently provided the relevant guarantees under Article 19. The first clause of Article 19(1) declares that all citizens shall have the right to freedom of speech and expression. The second clause, Article 19(2), makes clear that nothing in the first clause shall prevent the State from enacting any law that imposes reasonable restrictions on the exercise of that right. Such restrictions may be justified in the interests of the security of the State, the maintenance of friendly relations with foreign States, public order, decency or morality, as well as in matters relating to contempt of court, defamation or the incitement of an offence. Although the text of Article 19 does not name the press separately, the Supreme Court has consistently held that the liberty of the press is an implicit component of the broader freedom of speech and expression guaranteed to every citizen. In Romesh Thappar v. State of Madras the Court affirmed that freedom of speech and expression includes the freedom to propagate ideas, and that this freedom is protected through the freedom of circulation. The Court further explained in Brijbhushan v. State of Delhi that any system of pre‑censorship imposed on a journal constitutes a restriction on the liberty of the press, which is an essential element of the right enunciated in Article 19(1)(a). The same conclusion was echoed by Justice Bhagwati in the unanimous judgment of Express Newspapers Ltd. v. Union of India, where it was observed that the scope of freedom of speech and expression necessarily embraces the freedom of the press.

The jurisprudence also makes two important observations. First, a non‑citizen who runs a newspaper does not enjoy the constitutional guarantee of freedom of speech and expression, and therefore cannot claim the benefit of press liberty as a fundamental right. Second, because press liberty arises solely from the general freedom of speech and expression, it does not occupy a higher status than the ordinary speech rights of a citizen, and no special privilege is accorded to the press as a distinct class. Consequently, for citizens who own or edit newspapers, the constitutional position remains essentially the same as it was when the Judicial Committee decided Arnold v. The King‑Emperor. For non‑citizens, the position may be even less favorable. The petitioner, who is both a citizen and an editor, contended that he possessed an absolute right—subject, of course, to any reasonable restriction permissible under Article 19(2)—to publish a true and faithful report of parliamentary proceedings, including any portions that had been ordered to be expunged, together with a note indicating that such expungement had occurred.

In this matter, the petitioners argued that the Constitution guarantees a citizen’s right under Article 19(1)(a) to publish a faithful and accurate account of parliamentary or State Legislature proceedings that have been heard and seen in public, including any portions of speeches that have been ordered to be removed, provided that a note indicating such removal is also published. The respondents did not dispute that the petitioners’ freedom of speech and expression is not limited solely to expressing personal sentiments, opinions, or ideas, nor did they claim that this freedom does not extend to publishing news, reports of proceedings, or the views of others. Nor did the respondents contend that such publications fall outside the interpretation of Article 19(1)(a) as set out by this Court in the three cited decisions, nor that the judgment in Srinivasa v. The State, of Madras (1), which appears to support the petitioners, was decided incorrectly. Consequently, the Court found it unnecessary to consider broader questions and proceeded on the premise that the constitutional guarantee of freedom of speech and expression for citizens includes the right to publish news and reports of public meetings, Parliament, or State Legislatures. The respondents, however, rejected the notion that the petitioners possess an unrestricted right of the breadth described. They argued, among other points, that Article 194(3) endows Parliament and State Legislatures with powers, privileges, and immunities akin to those of the British House of Commons, and that these powers take precedence over the freedom of speech and expression conferred by Article 19(1)(a). Apart from several minor ancillary issues raised by the petitioner’s counsel, which will be addressed later, the Court identified two principal questions raised in the pleadings: (I) whether a legislative body in India, under Article 194(3), has the privilege to completely prohibit the publication of proceedings that were publicly heard and seen, or even to prohibit publication of those portions specifically ordered to be expunged; and (II) whether the privilege granted by Article 194(3) outweighs the petitioners’ fundamental right under Article 19(1)(a). Regarding the first question, the Court noted that its decision hinges on the text of Article 194, which states in clause (1) that, subject to constitutional provisions and the rules governing legislative procedure, there shall be freedom of speech in the Legislature of every State; clause (2) provides that no member shall be liable to any court for anything said or any vote cast in the Legislature or its committees; and clause (3) declares that, in all other respects, the powers, privileges, and immunities of a State Legislature and its members shall be those defined by law, and until such definition, shall be those of the House of Commons of the United Kingdom as they existed at the commencement of the Constitution.

The Court set out the text of Article 194 of the Constitution. Clause (1) provides that, subject to the Constitution and to the rules and standing orders governing legislative procedure, there shall be freedom of speech in the legislature of every State. Clause (2) states that no member of a State legislature shall be liable to any court proceedings in respect of anything said or any vote given by him in the legislature or any committee thereof, and that no person shall be liable for the publication, by or under the authority of a House of a Legislature, of any report, paper, vote or proceeding. Clause (3) provides that, in all other respects, the powers, privileges and immunities of a House of a State legislature, its members and its committees shall be those that may from time to time be defined by law, and that, until such law is made, they shall be the same as 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. Clause (4) extends the provisions of clauses (1), (2) and (3) to persons who, by virtue of the Constitution, have the right to speak in, or otherwise take part in, the proceedings of a State legislature or any committee thereof, in the same manner as they apply to the members of that legislature. The Court noted that this article, which deals with State legislatures and their members and committees, reproduces, mutatis mutandis, Article 105 which governs both Houses of Parliament and their members and committees. It was accepted as common ground that the Legislature of the State of Bihar has not enacted any law concerning the powers, privileges and immunities of its House as listed in entry 39 of List II of the Seventh Schedule, just as Parliament has not legislated on the matters listed in entry 74 of List I. Consequently, under the latter part of clause (3) of Article 194, the Legislative Assembly of Bihar enjoys all the powers, privileges and immunities that were possessed by the House of Commons at the commencement of the Constitution.

The Court then turned to the nature of parliamentary privilege. It quoted a definition that described parliamentary privilege as “the sum of the peculiar rights enjoyed by each House collectively as a constituent part of the High Court of Parliament, and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals.” The same source observed that privilege, although part of the law of the land, is to some extent an exemption from ordinary law. The Court explained that the privileges of Parliament fall into two categories: those common to both Houses and those peculiar to either the House of Lords or the House of Commons. The privileges specific to the Commons, distinct from those of the Lords, were described as “the sum of the fundamental rights of the House and of its individual members as against the prerogatives of the Crown, the authority of the ordinary courts of law and the special rights of the House of Lords.” Finally, the Court recorded that the learned Solicitor General appearing for the respondents claimed that…

The Court observed that the Legislative Assembly, in the same manner as the House of Commons, possesses the power and privilege, if it so wishes, to bar completely any publication of debates or proceedings that occur within the House. This authority also extends to the prohibition of any inaccurate or distorted accounts of such debates. In other words, the claim is that the House of Commons may prevent a newspaper from printing even a truthful and faithful report of its proceedings, and it can certainly forbid the publication of any portion of speeches or discussions that have been ordered to be removed from the official record. As Sir Thomas Erskine May explains in the sixteenth edition of Parliamentary Practice, during the early period of British history the preservation of these privileges was essential for the House of Commons. They were required to safeguard the House’s independence from the King and the Lords, and indeed they were vital to the very existence of the Commons. The privileges of the Commons have been classified under two primary categories. The first category comprises those privileges that are demanded of the Crown by the Speaker of the House of Commons at the beginning of each Parliament and are automatically granted as a matter of course.

The second category consists of privileges that are not expressly demanded by the Speaker. Under the first heading fall the freedom from arrest, claimed in 1554; the freedom of speech, claimed in 1541; the right of access to the Crown, claimed in 1536; and the right to have the most favourable construction placed upon the House’s proceedings. The second heading includes the right to determine the composition of its own body; the power to regulate its own proceedings; the right to exclude strangers; the right to prohibit the publication of its debates; and the authority to enforce observance of its privileges through penalties such as fines, imprisonment, and expulsion, with admonition and reprimand being milder forms of punishment. The Court noted that the privileges in the first category are asserted at the commencement of every Parliament when the Speaker addresses the Lord Chancellor on behalf of the Commons, claiming them as “ancient and undoubted” and indicating that the Crown, through the Chancellor, most readily grants and confirms them. Of the three principal privileges thus claimed, two – namely, freedom of the person and freedom of speech, together with consequential rights such as the exclusion of strangers and control over publication of debates – are common to both Houses of Parliament. The Court cited authorities including Ridge’s Constitutional Law, Anson’s Law and Custom of the Constitution, and Halsbury’s Laws of England to support this classification of parliamentary privileges.

In this matter, the Court observed that for either the House of Commons or the House of Lords, the freedom of speech held paramount importance because a full and uninhibited debate formed the essence of parliamentary democracy. Although the freedom of speech was formally claimed and granted at the beginning of each Parliament, the Court noted that such a claim offered little protection against the autocratic monarchs, since the substance of debates could be reported to the King and his ministers, thereby exposing members to royal displeasure. Consequently, the Court explained that secrecy of parliamentary debates was regarded as necessary not only for members to discharge their responsibilities properly but also for safeguarding their personal safety. The Court quoted a historical observation that the original motive for secrecy of debate lay in the members’ anxiety to protect themselves from the sovereign’s actions, yet it soon became equally convenient as a veil to conceal proceedings from their constituencies. The Court identified two methods to achieve this protective objective: first, by prohibiting the publication of any report of the debates and proceedings; and second, by excluding strangers from the House and conducting debates behind closed doors. These two privileges were described as adopted to ensure the secrecy of debates, thereby allowing members to enjoy the full benefit of freedom of speech, which was expressly claimed and granted at the commencement of each Parliament. Regarding the first method, the Court referred to the historical struggle of the Commons to win the rights and freedoms they now enjoy, noting that the right to control and, if necessary, to prohibit the publication of debates had been claimed, asserted and exercised by both Houses from very early times. The Court cited instances in 1628 and again in 1640 when the clerk was forbidden to make notes of particular speeches or to allow copies of any arguments or speeches to go forth. It further noted that the Long Parliament in 1641 framed a standing order that no member should give a copy or publish anything spoken in the House, and that all members were enjoined not to produce any copy or notes of matters brought before the House. The Court emphasized that during that critical period such restrictions were a necessary precaution. It recorded that the House enforced this privilege so strictly that Sir E. Derring, who printed a collection of his own speeches without permission, was expelled from the House, imprisoned in the Tower, and had his book ordered to be burnt by the common hangman. The Court observed that this standing order had never been repealed. Finally, the Court mentioned that in 1680, to prevent inaccurate accounts of business, the Commons directed that their votes and proceedings be printed under the direction of the Speaker, thereby further illustrating the long‑standing commitment to maintaining secrecy of parliamentary debates.

The Court noted that after the Revolution of 1688 the two Houses of Parliament repeatedly issued resolutions between 1694 and 1698 intended to restrain writers of newsletters from “intermeddling with their debates or other proceedings” or from “giving any account of minute of the debates.” Despite these resolutions and the threatened punishment of offenders, the public’s demand for political news remained great, and imperfect reports continued to appear in newspapers and journals. Among the publications that reproduced parliamentary debates were Boyer’s Political State of Great Britain, the London Magazine, and the Gentleman’s Magazine, which presented reports of debates under titles such as “Proceedings of a Political Club” and “Debates in the Senate of Magna Lilliputia.” In 1722 the House of Commons adopted explicit resolutions stating that no news writer should presume to publish minutes or any other description that would intermeddle with the debates or any other proceedings of the House, and that no printer or publisher of printed newspapers should insert any debates or other proceedings of the House or any of its committees. A citation to Hatsell 265, quoted in May’s Parliamentary Practice, 16th Edn., p. 55, accompanied these resolutions. Later, in 1738 another resolution characterised the publication of the House’s proceedings as “a high indignity and a notorious breach of privilege.” When the Middlesex Journal printed debates, the House of Commons expressed strong displeasure and ordered the implicated printers to appear before it. Warrants were issued for their arrest; one printer was brought before Alderman John Wilkes, who immediately discharged him on the ground that no crime had been committed. Another printer faced a similar arrest and was also discharged by a different Alderman because he was not accused of any crime. In retaliation, the House of Commons ordered the imprisonment of the Lord Mayor and an Alderman, both of whom were members of the House; upon their release, they were honoured with a triumphal procession from the Tower of London to the Mansion House.

The Court further observed that, notwithstanding this political controversy, reports of debates in both Houses continued to be published with impunity, even though such reporting technically constituted a breach of privilege. The accuracy of those reports was severely limited by practical difficulties: reporters were not provided any accommodation inside the House, were often forced to wait for long periods in the hallways or on the stairways, and were prohibited from taking notes. Consequently, the published accounts contained numerous errors and misrepresentations. After the House of Commons was destroyed by fire in 1834, temporary galleries were erected to accommodate reporters, and the newly constructed House of Commons later included a separate gallery expressly for the press, thereby improving conditions for reporting parliamentary proceedings.

In the years following the fire that destroyed the old House of Commons in 1834, a separate gallery was created for members of the press. By the year 1836 the Commons had taken the step of authorising the publication of parliamentary papers and reports. This measure gave rise to a dispute between the House of Commons and the judiciary, a dispute that was resolved in the case known as Stockdale v. Hansard. In that case the Lord Chief Justice, Denman, articulated that the mere fact that the House of Commons had instructed Messrs. Hansard to publish all parliamentary reports did not excuse either Hansard or any other bookseller from liability for publishing a parliamentary report that contained a libellous statement against any individual. After the judgment the House of Commons responded by committing the publisher Stockdale, his attorney and the sheriff to imprisonment. The impasse created by these events was eventually removed by the enactment of the Parliamentary Papers Act, 1840 (3 and 4 Victoria, chapter 9).

Counsel for the petitioner later referred the Court to the judgment of Chief Justice Cockburn in the well‑known case of Wason v. Walter. In that matter the plaintiff had laid before the House of Lords a petition alleging that a senior judicial officer, thirty years earlier, had knowingly made a false statement in order to mislead a committee of the House of Commons and had thereby sought the officer’s removal if the accusation proved true. A debate followed the presentation of the petition, during which the charge was wholly rejected. While the debate proceeded, statements that disparaged the plaintiff’s character were uttered. A faithful account of the debate was subsequently printed in The Times, and the plaintiff instituted libel proceedings against the proprietor of the newspaper. The Court held that the subject matter of the debate was of great public importance and that a writer in a public newspaper possessed a full right to comment on it. Accordingly, the remarks were deemed privileged provided that a jury found them to be honest, made in a fair spirit and justified by the circumstances as disclosed in an accurate report of the debate.

The petitioner’s counsel argued that the Wason v. Walter decision established an absolute privilege for the press to publish reports of parliamentary proceedings, in the same manner that the press is entitled to publish accurate reports of judicial proceedings, even though the character of individuals might be incidentally harmed. The counsel further contended that such publication should attract neither criminal nor civil liability. However, this argument overlooked the precise issue that was actually decided in the Wason case. Chief Justice Cockburn himself framed the question at page 82 of the judgment as follows: “The main question for our decision is, whether …” – indicating that the Court’s consideration was limited to the question of liability between the publisher and the individual whose reputation was attacked, and not to the broader question of privilege between Parliament and the press.

A report that faithfully reproduces a debate that takes place in either House of Parliament and that is published in a public newspaper may become the basis of a lawsuit when it contains statements that disparage the personal character of an individual, statements that were allegedly made during the debate. The cause of action lies in the person whose reputation has been attacked, and the dispute is essentially between the publisher of the newspaper and that aggrieved individual. The question of whether the House of Parliament itself possesses a privilege that shields the newspaper from liability was not raised in the proceedings, and therefore it did not form part of the adjudication.

The observations that were later cited as bearing on the existence of a parliamentary privilege were, in fact, unnecessary for the decision in this particular case. As noted by the legal commentator Frank Thayer on page 32 of his work Legal Control of the Press, the passages in question constitute mere dicta and did not influence the outcome. Consequently, those remarks cannot be said to have formed the basis of the Court’s reasoning on the matter of privilege.

The learned Chief Justice, however, made clear that a privilege does exist in the relationship between the House of Parliament and the press. He addressed an argument that publishing parliamentary proceedings is illegal because it allegedly contravenes the standing orders of both Houses. While it is true that each House, by virtue of its standing orders, formally prohibits the publication of its debates, in practice each House not only permits but also actively sanctions and encourages the publication of its proceedings. The Houses provide every facility to reporters, and individual members routinely correct their speeches for appearance in official reports such as Hansard or other public journals. Moreover, in every subsequent debate, references are constantly made to the reports of earlier speeches contained in those publications.

Both collectively and individually, the members of the two Houses would regard the withholding of their debates from the public as a national misfortune. Accordingly, it is unreasonable to maintain that parliamentary publication is prohibited; the standing orders that ostensibly forbid publication are intended primarily to give each House control over how its proceedings are reported and to prevent or correct any misuse of that facility. Independent of those orders, there is nothing unlawful about publishing reports of parliamentary proceedings. In practical terms, such publication is sanctioned by Parliament, is essential to the proper functioning of the parliamentary system, and serves the welfare of the nation. Any contention that the publication is illegal therefore fails entirely. Should a House ever attempt, however imprudently, to prevent its debates from being made known to the country—a scenario that the Court does not anticipate—any publication made in contravention of that House’s orders would constitute a dispute solely between that House and the publisher. For the present purposes, the Court must treat the publication of parliamentary debates as lawful in every respect, and it must hold that persons who publish such reports honestly and faithfully are free from legal liability, even though the incidental effect may be to injure the reputation of some individuals.

The Court observed that the facilities now granted to parliamentary reporters have led to a considerable improvement in the practice of reporting, and that the House, aware of the benefit it receives from a full and clear record of its debates, has even encouraged the publication of reports of those debates and proceedings. Nevertheless, the Court emphasized that such encouragement does not indicate that the House has relinquished the valuable privilege it possesses over the publication of its proceedings. To illustrate the legal position, the Court referred to a passage in Anson’s Law and Custom of the Constitution at page 174, which correctly states that reports of parliamentary proceedings are produced only by the consent of the House, which may at any time exclude strangers from the reporter’s gallery and may also determine that publication of the reports constitutes a breach of privilege, dealing with it accordingly. The passage further explains that, although the privileges of the House guarantee a right to privacy for its debates, they do not create a corresponding right for the public to publish those debates. The Court also cited Frank Thayer’s commentary at pages 31‑32, which affirms that parliamentary privilege, as a component of the unwritten English Constitution, gives each House the exclusive authority to decide what constitutes interference with its duties, dignity and independence. This authority includes the power to exclude strangers in order to preserve the privacy of debate, a power that closely parallels the House’s right to prevent the publication of its debates. Attendance at parliamentary debates and the publication of those debates, according to Thayer, are permitted only by the House’s consent, even though contemporary practice recognises that disseminating information about debates and parliamentary proceedings is advantageous to democracy and necessary for public safety. Judicial dicta have recognised a right to publish fair and accurate reports of parliamentary debates; however, the Court noted that the traditional privilege of Parliament continues to be at odds with such judicial opinions. An existing standing order forbids the publication of parliamentary debates, a rule that has become practically obsolete by custom and by the principle of consent, yet the mere existence of that order and the potential for a contempt citation if the House decides to withhold a particular discussion still function as a deterrent against careless reporting and distorted commentary. Finally, the Court referred to May’s Parliamentary Practice, sixteenth edition, page 118, which draws a parallel between the publication of libelous material concerning either House and the publication of false, perverted, partial or injurious reports of debates, proceedings of either House or its committees, or misrepresentations of the speeches of individual members. May notes that the Commons have repeatedly issued orders prohibiting the publication of debates or other proceedings of the House or any of its committees; although such orders have not been renewed in subsequent sessions, they are regarded as remaining in force.

The judgment noted that a claim of misrepresentation of a parliamentary report does not, by itself, constitute a matter that the House should consider directly. Instead, the proper procedure is first to draw attention to the report as an infringement of the House’s orders, and then to treat the alleged misrepresentation as an aggravating factor of that infringement. The Court emphasized that the House of Commons zealously protects this particular privilege. It cited a historical episode dated 31 May 1875, when Lord Hartington moved a resolution stating that the House would not receive any complaint concerning the publication of its debates or proceedings, or those of any committee, except in three limited situations: where the debates or proceedings were held behind closed doors; where the House or a committee had expressly prohibited the publication; or where there was willful misrepresentation or another offence relating to such publication. The House of Commons rejected Lord Hartington’s motion outright, illustrating its determination to maintain the privilege.

The Court then referred to the commentary in May’s Parliamentary Practice, page 118, which summarised the effect of this stance. It explained that, provided the debates are reported accurately and faithfully, the orders prohibiting their publication are not enforced. However, when the reports are made in bad faith, newspaper publishers become liable for punishment. Further examples of the privilege being invoked were listed on pages 118‑119 of the same work. One notable case involved the publication in 1801 of a proceeding that the House of Lords had ordered to be removed from its journal. The report clarified that this incident concerned the privilege of the House of Lords and not that of the House of Commons, and it observed that the Commons had not asserted a similar claim of privilege for more than a hundred years.

The judgment reminded that, according to Halsbury’s Laws of England, second edition, volume 24, page 351, the privilege in question is a common privilege claimed by both Houses of Parliament. Consequently, if the House of Lords was able to assert and exercise the privilege in 1801, there is no reason to suppose that the House of Commons would be unable to do so should an appropriate occasion arise. The lack of recent invocation by the Commons was interpreted as indicating that no suitable occasion had presented itself, rather than suggesting that the Commons had lost the power altogether. This view was supported by references to the observations in the cases of Wason v. Walter and In re: Banwarilal Roy.

Moreover, the Court highlighted that the 1875 rejection of Lord Hartington’s motion further demonstrated the House of Commons’ anxiety to preserve this privilege. It also pointed out that a new issue had arisen in the House of Commons concerning the publication of certain …

In August 1947 a Committee of Privileges examined the conduct of Mr. Evelyn Walkden, who was the Member of Parliament for Doncaster. The Committee discovered that Mr. Walkden had disclosed the contents of a private party meeting to a newspaper. The Committee observed that the holding of confidential party meetings had become a well‑established feature of parliamentary practice and that such meetings were considered a regular part of the routine business of the House. Accordingly, the Committee concluded that a Member’s attendance at those meetings, which took place within the precincts of the Palace of Westminster during a parliamentary session, formed part of the Member’s normal duties. It further held that the act of distributing a report of the meeting’s proceedings to an external source amounted to a breach of the privilege of the House.

The House of Commons subsequently resolved that Mr. Walkden was guilty of dishonourable conduct. Although the House chose not to expel him, it also adopted a resolution stating that any person who in the future offered payment for the disclosure of such confidential information would incur the House’s grave displeasure (3). The inquiry in this matter therefore concerned a Member’s breach of the House’s privilege by publishing the proceedings of a private party meeting to an outsider.

The Committee noted that, irrespective of any doubt as to whether the proceedings of private party meetings could be treated in the same manner as the regular proceedings of the House (1) (1868) L.R. IV Q.B. 73 (2) 48 C.W. N. 766, 787 (3) Ridge’s Constitutional Law, 8th Edn., p. 70 and May’s Parliamentary Practice, 16th Edn., p. 52, there was no question about the existence of the House’s power or privilege to forbid the publication of its proceedings. This case demonstrates that the House of Commons had not abandoned its power to prohibit the publication of its own proceedings and that it was prepared to extend that power to cover publications made by a Member concerning a private party meeting held within the House’s precincts.

Regarding the broader issue of freedom of speech, the Court reiterated that the freedom claimed by the House and granted by the Crown is, when necessary, preserved by maintaining the secrecy of debate. That secrecy is protected both by prohibiting the publication of debates and proceedings and by excluding strangers from the House. Historically, any Member could “spy a stranger,” and the Speaker was required to expel all strangers, which included press reporters. This right was exercised in 1849, again after twenty years in 1870, and subsequently in 1872 and 1874. In 1875 the House modified the rule by resolution so that when a Member spotted a stranger, the Speaker would refer the matter to a vote of the House (1). The same right was exercised in 1923 and most recently on 18 November 1958 (2). This historical practice further illustrates the House’s consistent commitment to safeguarding the confidentiality of its debates and proceedings.

It was observed that there has been no reduction in the eagerness of the House of Commons to protect itself by maintaining the secrecy of its debates through the exclusion of strangers whenever the situation requires. The purpose of excluding strangers is to prevent any publication of the debates and proceedings that occur inside the House, and if the House continues to cling tenaciously to this power or privilege of excluding outsiders, it is unlikely that it has abandoned its power or privilege to forbid the publication of reports of those debates or proceedings that are made within its precincts. Consequently, the discussion concluded that, at the commencement of our Constitution, the House of Commons possessed the power or privilege of prohibiting even a true and faithful report of the debates or proceedings that take place within the House. This is supported by the references (1) Taswell‑Langmead, p. 660 and (2) The Statesman dated 20 November 1958. Moreover, a fortiori, the House at the relevant time also possessed the power or privilege of prohibiting the publication of any inaccurate or garbled version of such debates or proceedings. The latter part of Article 194(3) confers all of these powers, privileges and immunities on the legislative houses of the States, in the same manner that Article 105(3) does on the Houses of Parliament. Some submit that the conditions that existed in the darker days of British history, which prompted the Houses of Parliament to claim their powers, privileges and immunities, no longer exist either in the United Kingdom or in our country, and therefore there is no reason to adopt those historic powers in the present democratic era. However, the Constitution makes it clear that until Parliament or, as the case may be, the State Legislature enacts a law defining the powers, privileges and immunities of the House, its members and its committees, they shall retain all the powers, privileges and immunities that the House of Commons possessed at the date of the Constitution’s commencement. To deny them those powers after it has been found that the House of Commons possessed them at the relevant time would amount not to interpreting the Constitution but to rewriting it. The Court also rejected the view that it would be inappropriate to entrust our legislative houses with these powers, privileges and immunities, stating a firm belief that our houses, like the House of Commons, will recognize the advantages of publicity and will not invoke these powers except in exceptional cases. Assuming that the petitioner, as a citizen and newspaper editor, claims under Article 19(1)(a) the fundamental right to publish a true and faithful report of the debates or proceedings of the Bihar Legislative Assembly, and assuming that the Assembly, under Article 194(3), possesses all the powers, privileges and immunities of the House of Commons, including the right to prohibit the publication of any report of those debates or proceedings, the question arises as to which right should prevail.

In this case the counsel appearing for the petitioner argued that the powers, privileges and immunities granted to the Legislative Assembly by article 194 (3) must yield to the petitioner’s fundamental right to freedom of speech and expression under article 19 (1)(a). The petitioner’s counsel therefore submitted that article 194 (3) should be read as being subject to article 19 (1)(a). To support this proposition the counsel set out several lines of argument. First, it was contended that although clause (3) of article 194 does not expressly state that it is “subject to the provisions of the Constitution”, that omission does not mean that it is not subject to them; the various clauses of article 194 and article 105, the counsel said, should be read together as a single scheme and therefore each clause must be subject to the constitutional provisions, including article 19 (1)(a). Second, it was argued that article 194 (1), like article 105 (1), in practice functions as a limitation on the fundamental right of freedom of speech when that right is exercised inside Parliament or a State Legislature, whereas article 194 (3) does not claim to be an exception to article 19 (1)(a). Third, the counsel emphasized that article 19 embodies a transcendental principle that grants Indian citizens an enduring, indefeasible fundamental right, and because it is placed in part III of the Constitution it enjoys a higher, more sacrosanct status than other provisions; consequently the second part of article 194 (3), being a transitory provision, cannot override such a fundamental right. Fourth, the counsel submitted that if, pursuant to article 105 (3), Parliament were to enact a law under entry 74 of List I of the Seventh Schedule defining the powers, privileges and immunities of Parliament and its members and committees, or if, under article 194 (3), a State Legislature were to enact a law under entry 39 of List II defining the powers, privileges and immunities of the State Legislature and its members and committees, any such definition that conflicted with the fundamental rights of citizens would, under article 13, be void to the extent of the inconsistency; hence, because the earlier part of article 194 (3) reflects this constitutional intention and there is no indication of a different intent in the later part of the same clause, the powers, privileges and immunities derived from the latter part of clause (3) must also be subject to the fundamental rights. Finally, the counsel referred to the observations made in the decision of Anand Bihari Mishra v Ram Sahay to bolster the contention that article 194 (3) is subordinate to the fundamental rights.

In this case, the Court noted that the decision of this Court in Gunupati Keshavram Reddy v. Nafisul Hasan, together with the earlier decisions reported in (1) A.1.R. (1952) M.B. 31, 43 and (2) A.I.R. (1954) S.C. 636, clearly establishes that Article 194(3) is subject to the fundamental rights guaranteed by the Constitution. The submissions advanced on this basis may at first appear plausible and even attractive, but the Court indicated that they do not withstand close scrutiny. The Court observed that Article 194 has already been reproduced in full and that each of its four clauses deals with a distinct subject matter. Clause (1) provides members of a State Legislature with freedom of speech within the Legislature, subject, of course, to the specific provisions that are mentioned in that clause. Clause (2) confers immunity on members, or on any person authorized by the House, from legal proceedings in respect of any report, paper or other document that the House publishes. Clause (3) confers certain powers, privileges and immunities on the Legislature of a State, on its members and on its committees. Finally, clause (4) extends the provisions of clauses (1) to (3) to persons who are not members of the House but who, by virtue of the Constitution, have the right to speak and otherwise to take part in the proceedings of the House or any of its committees. The Court then turned to the question of whether clauses (2) to (4) are also subject to the Constitution. It observed that clause (1) is expressly described as being “subject to the provisions of this Constitution,” whereas clauses (2) to (4) are not described in the same manner. This difference, the Court held, indicates that the framers of the Constitution did not intend clauses (2) to (4) to be subject to the constitutional provisions. The Court explained that if the framers had intended every clause to be subject to the Constitution, the article would have been drafted differently. In such a case, the article would have begun with the words “Subject to the provisions of this Constitution and the rules and standing orders regulating the procedure of the Legislature,” and the four substantive provisions would have been presented as sub‑clauses (i), (ii), (iii) and (iv), thereby making it clear that the introductory qualifying words applied to each sub‑clause. In a further line of reasoning, the Court said that it is possible to argue that the phrase “regulating the procedure of the Legislature” occurring in clause (1) of Article 194 should be understood as covering both “the provisions of the Constitution” and “the rules and standing orders.” Under that construction, the freedom of speech guaranteed in clause (1) would become subject to the constitutional provisions that regulate legislative procedure, namely the articles on procedure in Part VI such as Articles 208 and 211. By analogy, the freedom of speech in Parliament under Article 105(1) would become subject to the procedural articles in Part V, for example Articles 118 and 121. Finally, the Court cautioned that the contention that the entire Article 194 is subject to Article 19(1)(a) overlooks the specific language of clause (2) of Article 194, which grants a categorical immunity to members and to persons publishing reports on behalf of the House.

In this case the Court observed that a citizen who enjoys the right guaranteed by Article 19(1)(a) may be lawfully restricted by a statute that falls within clause (2) of that article, and that such a citizen may be held liable in a court of law for violating that statute. By contrast, clause (2) of Article 194 expressly provides that no member of a Legislature may be subjected to any legal proceeding for anything said or any vote cast by him in the Legislature or in its committees, and that no person may be held liable for any report, paper or proceeding published by or under the authority of the House of such a Legislature. Accordingly, the Court held that the provision of clause (2) of Article 194 indicates that the freedom of speech mentioned in clause (1) of that article is a distinct freedom from the freedom of speech and expression guaranteed under Article 19(1)(a). The Court further explained that this distinct freedom cannot be diminished in any manner by a law that would otherwise be permissible under clause (2) of Article 19.

The Court then turned to the second set of arguments raised by counsel for the petitioner. It pointed out that if the purpose of clause (1) of Article 194 had been solely to signify that it merely curtailed the freedom of speech that a legislator enjoys as a citizen under Article 19(1)(a), the drafting could have been simpler. In that circumstance, the clause could have stated that the freedom of speech conferred by Article 19(1)(a), when exercised within a State Legislature, would be subject not only to the restrictions permissible by law under clause (2) of that article but also to the constitutional provisions, rules and standing orders governing the procedure of that Legislature. The Court noted that such wording would have removed any need to create a new, separate freedom of speech, since the words “there shall be freedom of speech in the Legislature of every State” clearly intend to establish an independent right.

Counsel for the petitioner emphasized the two components of clause (3) of Article 194. The first component provides that the powers, privileges and immunities of a State Legislative House and of its members and committees shall be those that may from time to time be defined by law enacted by the Legislature. The second component specifies that, in the absence of such definition, the powers, privileges and immunities shall be those of the House of Commons of the United Kingdom and of its members and committees. The Court observed that a law defining those powers, privileges and immunities could be made by Parliament under entry 74 of List I, and by a State Legislature under entry 39 of List III. If a law so made were to remove or abridge the right to freedom of speech guaranteed by Article 19(1)(a) and it were not protected under Article 19(2), the Court held that such a law would immediately fall foul of the peremptory provisions of Article 13 and would become void to the extent of the contravention of

It was observed that when Parliament or a State Legislature chooses not to define the powers, privileges and immunities of the Houses of Parliament, the State Legislature, or their members and committees, those bodies continue to enjoy the powers, privileges and immunities that were historically attributed to the House of Commons. The argument advanced was that, in such a circumstance, there could be no justification for allowing those inherited powers, privileges and immunities to be independent of, or to override, the guarantee of freedom of speech contained in Article 19(1)(a). The submission sought to persuade that the framers of the Constitution could not have intended a conflict between the privileges of the House of Commons and the fundamental right, and therefore the latter part of Article 105(3) as applied to each House of Parliament and its members and committees, and the latter part of Article 194(3) as applied to a State Legislature and its members and committees, should be subject to the constraints of Article 19(1)(a) in the same way that any powers, privileges and immunities defined by statute would be. This line of reasoning was rejected. It was acknowledged that a law enacted by Parliament pursuant to the first part of Article 105(3) or by a State Legislature pursuant to the first part of Article 194(3) would not be a law made under constituent power, as in Sankari Prasad Singh Deo v. Union of India (1), but rather an exercise of ordinary legislative authority under Article 246 together with the relevant entries. Consequently, if such a law infringed or limited any fundamental right, it would run afoul of the mandatory provisions of Article 13(2) and be void to the extent of that infringement. The Court noted that this may explain why Parliament and State Legislatures have not legislated to define those powers, much as the Australian Parliament had not enacted a provision under section 49 of its Constitution corresponding to Article 194(3) until the case of The Queen v. Richards (2) arose.

Nevertheless, the Court emphasized that the powers, privileges and immunities conferred by the latter parts of Articles 105(3) and 194(3) are themselves constitutional provisions, not ordinary statutes, and therefore they enjoy a status equal to that of the provisions of Part III of the Constitution. It was further observed that the framers, uncertain about the exact scope of powers, privileges and immunities that Parliament or a State Legislature might claim, deliberately refrained from subjecting those constitutional provisions to the restrictions of Article 13. At the same time, being satisfied with the reasonableness of the Commons’ privileges at the time the Constitution was adopted, they did not deem it necessary to make those privileges expressly subordinate to the fundamental right guaranteed by Article 19(1)(a). The Court concluded that, in accordance with the cardinal rules of constitutional construction, the intention of the Constitution makers must be discerned from the language they employed, without presuming that the inherited privileges are automatically void for repugning fundamental rights.

In the matter before the Court, it was observed that the Constitution’s drafters, when granting powers, privileges and immunities to the Houses of Parliament, chose to make those powers subject to the limitation imposed by Article 13 in order to avoid any risk of inconsistency with the Constitution. The drafters, however, were satisfied that the powers, privileges and immunities of the House of Commons at the time the Constitution commenced were reasonable, and therefore they did not deem it necessary to subject those particular powers to the fundamental right guaranteed by Article 19(1)(a). The Court stated that, to discover the intention of the Constitution makers, the cardinal rules of construction must be applied to the language employed by them. In this connection, the observations of Justice Venkatarama Aiyar in Anantha Krishnan v. State of Madras were cited as appropriate and correct. The quoted passage explained that the petitioner’s counsel argued that fundamental rights occupied a paramount position in the Constitution, that Article 13 barred any legislative power to abridge them, and that the power to tax was equivalent to a power to destroy, thereby rendering Part 12 inoperative with respect to the rights in Part III. The Court rejected that broad contention, pointing out that Article 13 applies only to laws in force before the commencement of the Constitution and to future statutes enacted by the States, and that it does not apply to the Constitution itself. Consequently, Article 13 cannot be read to make any part of the Constitution void, and the principle of statutory interpretation requires giving effect to all parts of a statute, avoiding any construction that would render a portion inoperative. For these reasons, the Court held that Part 12 is not curtailed by Part III and that fundamental rights fall within the State’s power of taxation.

The Court further explained that Article 19(1)(a) and Article 194(3) must be read in a harmonious manner. The only viable method of achieving reconciliation, the Court said, was to interpret Article 19(1)(a) as subject to the latter part of Article 194(3), similar to the way Article 31 has been construed as subject to Article 265 in the decisions of Ramjilal v. Income‑Tax Officer, Mohindargarh and Laxmanappa Hanumantappa v. Union of India. In those cases, the Court held that Article 31(1) refers to deprivation of property by means other than taxation. Applying the same principle, the Court concluded that the appropriate construction required reading the general right guaranteed by Article 19(1)(a) as yielding to the special provisions contained in the latter part of Article 194(3). This approach, the Court affirmed, ensures a harmonious construction of the Constitution’s provisions.

In this case the Court noted that the observations drawn by the petitioner from the Madhya Bharat decision (3) could not be accepted as correct. The Court also observed that the judgment in Gunupati Keshavram Reddy v. Nafisul Hasan (4), which the petitioner’s counsel had relied upon, was based wholly on a concession made by counsel and therefore could not be treated as a considered opinion on the issue. Accordingly, the Court held that the principle of harmonious construction required that the general provision of Art. 19(1)(a) yield to the more specific provisions of Art. 194(1) and the latter part of its clause (3). The present proceedings had been commenced by a petition filed under Art. 32 of the Constitution, and the Court found that, for the reasons already explained, the petitioner could not invoke Art. 19(1)(a) to support the application. Consequently, the petitioner’s counsel turned to Art. 21, alleging that the proceedings before the Committee of Privileges threatened to deprive him of personal liberty contrary to the requirement that any deprivation be in accordance with procedure established by law. The Court referred to the cited authorities (1) [1951] S.C.R. 127; (3) A.I.R. (1952) M.B. 31, 43; (2) [1955] 1 S.C.R. 769; (4) A.I.R. (1954) S.C. 636, and observed that the Legislative Assembly claimed, under Art. 194(3), that it possessed all the powers, privileges and immunities enjoyed by the British House of Commons at the commencement of the Constitution. The Court accepted that, if the Assembly indeed possessed those powers, it could enforce them in the same manner as the House of Commons. Art. 194(3) confers those powers, privileges and immunities on the Assembly, while Art. 208 authorises the Assembly to make rules for the exercise of those powers. The Bihar Legislative Assembly has, in fact, framed rules pursuant to this authority. Accordingly, Art. 194(3) read with the rules made under Art. 208 establishes the procedure for enforcing the Assembly’s powers, privileges and immunities. The Court therefore concluded that, assuming the Assembly has the powers and privileges of the House of Commons, any deprivation of the petitioner’s personal liberty resulting from the Committee of Privileges would be in accordance with the established legal procedure, and the petitioner could not claim a violation of his fundamental right under Art. 21.

The Court then turned to the additional arguments raised by the petitioner’s counsel. It was submitted that even if the Assembly possessed the powers, privileges and immunities it asserted, and even if those powers were held to override the petitioner’s fundamental rights, the Assembly was still bound to exercise those powers in conformity with the standing orders that prescribe the procedural rules for its business, powers that are exercised under Art. 208. In this regard, the Court highlighted Rule 207, which sets out the conditions for the admissibility of a motion of privilege. Specifically, clause (ii) of Rule 207 requires that a motion relate to a specific matter of recent occurrence. The petitioner’s counsel pointed out that the speech in question had been delivered on 30 May 1957, and that Shri Nawal Kishore Sinha, M.L.A., had issued his notice of motion thereafter. The Court noted this factual matrix as part of its consideration of whether the motion satisfied the requirement of relating to a specific and recent matter under the standing orders.

In the record, the notice of motion was filed on June 10, 1957, which is ten days after the speech that formed the basis of the privilege motion was delivered. The Court observed that a matter occurring ten days prior to the filing of a notice cannot be described as a specific matter of recent occurrence. The Court also stated that it cannot prescribe a fixed time limit within which a privilege motion must be moved in order to satisfy the requirement of recency. Instead, the determination of whether the subject matter of a motion qualifies as a recent specific occurrence must be left to the discretion of the Speaker of the Legislature.

The Court examined the copies of the proceedings that were marked as Annexure D in Annexure III to the petition. Those documents did not show any member raising an objection on the ground that the matter was not a specific recent occurrence. Consequently, the Court found no substance in such an objection.

The petitioner’s submission also referred to Rules 208 and 209, which set out the procedure to be followed when an objection is made to the leave granted to a member to move a privilege motion. The petition claimed that Shri Ramcharitra Sinha, M.L.A., had objected to the leave being granted to Shri Nawal Kishore Sinha to move the privilege motion. The Court noted that this allegation is not supported by the official account of the proceedings in the House. In fact, Shri Ramcharitra Sinha merely sought clarification of the convention concerning the admissibility of such a motion, after which the Speaker read out clause (ii) of Rule 208. No further comment was made by Shri Ramcharitra Sinha.

Subsequently, the Speaker remarked that he understood there was no opposition to the motion and therefore considered the honourable member to have received the leave of the House. He then invited the member to state his case. At that point, as previously indicated, Shri Karpuri Thakur asked what had been published in the May 31, 1957 edition of the Searchlight and what ought not to have been published. The Speaker thereafter read the notice submitted by Shri Nawal Kishore Sinha, which succinctly outlined the subject of the motion and referred to the Searchlight issue of May 31, 1957; a copy of that issue had been attached to the notice.

After the notice was read, the Speaker granted Shri Nawal Kishore Sinha permission to move his privilege motion, which he duly did. No amendment was proposed, and the Speaker stated the question before the House. As no member indicated opposition, the Speaker declared the motion carried. The Court concluded that, under the circumstances, there was no breach of the provisions of Rules 208 read with 209. The next argument presented by the petition relied on alleged non‑compliance with Rule 215, specifically clause (i) of that rule.

The Court observed that rule 215, clause (i), required the Committee of Privileges to meet as soon as practicable after a matter was referred to it and to continue meeting from time to time until it prepared a report within the period fixed by the House. In the present case the House had openly admitted that it had not fixed any specific period for the Committee to submit its report. The rule therefore invoked its proviso, which stipulated that if the House did not designate a time for the presentation of the report, the Committee was obliged to present its report within one month from the date on which the reference to the Committee was made. Counsel for the petitioner argued that more than one month had already elapsed, and that consequently the Committee of Privileges had become functus officio and could no longer act on the reference under the rules. The Court dismissed this contention as unsubstantial because the second proviso to clause (i) of rule 215 expressly empowered the House, at any time, by moving a motion, to direct that the time for the Committee’s report be extended to a date specified in that motion. The expression “at any time” in the second proviso clearly indicated that such an extension could be granted within the original period fixed by the House, within the one‑month period prescribed by the first proviso, or even after that period, provided the report had not yet been made or presented to the House. The Court cited the precedent of Raja Har Narain Singh v. Chaudhrain Bhagwant Kuar in support of this interpretation. Moreover, the Court held that the question of the time limit for the Committee of Privileges to submit its report was an internal matter of House management, a relationship between the House and its Committee, and did not confer any enforceable right on the individual whose conduct was being investigated, a principle reaffirmed in the earlier authority (1891) L.R. 18 I.A. 55, 58. This principle was especially applicable because the House retained the power to extend the reporting time “at any time.”

The Court then addressed the next argument, which contended that the Committee could not investigate a matter that had not been referred to it. The petitioner relied on the Committee’s resolution (Annexure 11 to the petition) and the notice served on the petitioner (Annexure I to the petition). The petitioner claimed that the resolution spoke 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.” and specifically mentioned the expunged portion of that speech, whereas the notice referred only to “a question involving breach of privilege of the Bihar Legislative Assembly arising out of the publication of the news item” and invited the petitioner to show cause why appropriate action should not be recommended against him for breach of the privilege of the Speaker and the Assembly. The Court found no basis for interpreting the two documents as referring to different charges. It observed that the wording of the notice, although broader, nevertheless encompassed the matters identified in the Committee’s resolution. Consequently, the Court concluded that the notice served on the petitioner was properly couched to cover the issues raised in the Committee’s resolution, and the alleged distinction between the two documents did not merit acceptance.

The notice addressed to the petitioner was phrased in a manner that encompassed the matters mentioned in the Committee’s resolution. In legal terms, when the Speaker orders a portion of a member’s speech to be expunged, the effect of that order can be treated as if the expelled portion had never been spoken. Consequently, a report that reproduces the entire speech, although factually accurate, may be considered a perverted and unfaithful account of the proceedings because it includes the portion that the Speaker ordered to be omitted. Publishing such a perverted and unfaithful report—namely a report that contains the expunged segment contrary to the Speaker’s order—can, on its face, be seen as a breach of the privilege of the House arising from the publication of the offending news item. That description matches precisely the charge contemplated by the Committee’s resolution and the charge that the notice requires the petitioner to answer. The Court chose not to express an opinion on whether a breach of the House’s privilege had actually occurred, noting that the determination of such a breach is solely within the competence of the House itself. The petitioner’s counsel then advanced the argument that, after the House referred the matter to the Committee of Privileges, no action was taken for approximately one year, and that the Committee only revived the issue after that lapse in order to penalise the petitioner. Paragraph 17 of the petition formulates the accusation of mala fides as follows: “That the Committee of Privileges aforesaid is proceeding against the petitioner mala fide with a view to victimise and muzzle him since the petitioner has been through his newspaper unsparingly criticising the administration in the State of Bihar of which opposite party No. 1 is the Chief Minister.” It is important to note that the allegation of mala fides is directed against the Committee of Privileges, not against the Chief Minister, and to contest this allegation an affidavit sworn by the Secretary to the Bihar Legislative Assembly was filed. The affidavit in reply refers to certain articles in the Searchlight that alleged misconduct by the Chief Minister and suggests that the Committee’s action was taken at the Chief Minister’s instigation, thereby introducing a new allegation. Apart from this, the Chief Minister is merely one of the fifteen members of the Committee and one of the three hundred and nineteen members of the House. The Committee of Privileges normally includes members from all parties represented in the House, making it difficult to infer that the Committee, as a collective body, acted with any mala fide intention toward the petitioner. Moreover, the Committee’s function is limited to preparing a report for the House, and the final decision rests with the House itself. In view of these considerations, the allegation of bad faith could not be readily accepted. It

The petition also urged that the Chief Minister should be excluded from the Committee proceedings because he purportedly had a personal interest in the matter, and it cited the decision in Queen v. Meyer (1) as authority. However, the petition never alleged any bias on the part of the Chief Minister (respondent 2). The Court found that allowing the petitioner to raise the issue of bias would be inappropriate, since the allegation depended on facts that were not set out in the petition but were introduced only in a rejoinder, to which the respondents had not been given an opportunity to answer. The petitioner further denied that any of the portions of the debate which had been ordered to be expunged had actually been published. The Court stated that it would not express any view on that denial at this stage. If the Bihar Legislative Assembly possesses the powers and privileges it claims and is entitled to initiate proceedings for alleged breaches of those privileges, then, as the Court held, the determination of whether a breach has indeed occurred must be left to the House itself. Accordingly, the House, acting on the advice of its Committee of Privileges, should decide the true effect of the Speaker’s directions that certain portions of the proceedings be expunged, and whether the publication of the speech—if it includes the expunged portions—constitutes, in the eyes of the law, a publication of material that was not said, thereby compromising the accuracy and fidelity of the reported speech. The House must also determine whether the Speaker’s audible and explicit direction to expunge a portion of the proceedings amounts to an instruction to press reporters not to publish that portion, and whether the inclusion of the expunged material in any published account violates the Speaker’s order, constitutes a breach of privilege, and amounts to contempt of the Speaker and the House. For the reasons set out, the Court concluded that the petition should be dismissed and ordered that no costs be awarded. Subba Rao, J., after reviewing the detailed judgment of the Chief Justice, expressed a dissenting view. He noted that he differed from the Chief Justice and his fellow judges because he was convinced that the reasoning adopted by them would unduly restrict the broad scope of the fundamental right to freedom of speech as it applies to the press. He observed that the present application under Article 32 of the Constitution sought to quash the proceedings before the Committee of Privileges of the Bihar Legislative Assembly and to restrain the respondents—the Chief Minister of Bihar and the Committee of Privileges—from proceeding against the petitioner for the publication in the May 31, 1957 issue of “Searchlight.”

The petition sought to restrain the respondents, namely the Chief Minister of Bihar and the Committee of Privileges of the Bihar Legislative Assembly, from proceeding against the petitioner for material published in the issue of the “Searchlight” dated 31 May 1957. The petitioner, Pandit M. S. M. Sharma, was identified as the editor of the “Searchlight”, an English‑language daily newspaper printed in Patna, Bihar. On 30 May 1957, Shri Maheswara Prasad Narayan Singh, a member of the State Assembly, delivered a sharply critical speech in the Assembly against the then Chief Minister, Shri Sri Krishna Sinha, and also against Shri Mahesh Prasad Sinha, a former minister who had been defeated in the most recent general elections. According to the record, the Speaker subsequently ruled that certain portions of this speech should be expunged from the official proceedings. The following day, the “Searchlight” published a report titled “BITTEREST ATTACK ON CHIEF MINISTER”, which purported to give an accurate and faithful account of the Assembly debate of 30 May 1957. That report also noted that the Speaker had disallowed the member from naming Mr Mahesh Prasad Sinha in relation to the formation of the Ministry and had limited his remarks to matters concerning his chairmanship of the Khadi Board. An affidavit attached to the petition alleged that, up to and including 31 May 1957, none of the staff of the “Searchlight”, including the petitioner, were aware that any segment of the debate had been removed from the official record, and therefore the petitioner had not published any expunged remarks. The respondents, in their counter‑affidavit, denied this allegation, but they did not contend that the Speaker had issued any specific order or direction expressly prohibiting the publication of any portion of the Assembly proceedings in a newspaper.

Subsequent to these events, on 10 June 1957, Shri Nawal Kishore Sinha moved a motion concerning privileges in the Assembly, and the motion was carried without opposition. On the same day, the House referred the matter to its Committee of Privileges, yet it did not fix any deadline for the presentation of the Committee’s report. The Committee later convened a meeting presided over by the Chief Minister, during which it concluded that a prima facie case of breach of privilege existed against the petitioner. Following this finding, the Secretary to the Legislative Assembly issued a formal notice to the petitioner, informing him that the Committee had identified a prima facie breach of privilege and requesting that he show cause, if any, by 8 September 1958, why appropriate disciplinary action should not be taken against him. The notice was accompanied by a copy of the motion adopted by the Committee of Privileges in its meeting held on 10 August 1958, as well as a copy of the related documents that were referenced in the notice.

In this matter, the Court observed that the notice issued to the petitioner was enclosed with a booklet that compiled all the documents pertaining to the privilege motion introduced by Shri Nawal Kishore Sinha, Member of the Legislative Assembly, on 16 June 1957. The booklet provided for convenient reference the text of the motion as it had been moved in the House, a copy of the report that had appeared in the newspaper “Searchlight” dated 31 May 1957, and the relevant rules of the Assembly governing the Committee of Privileges. Although there had been some dispute regarding the precise meaning of the terms employed in the resolution passed by the Committee, the Court found it clear that the alleged breach of privilege consisted of the petitioner reproducing, in a published report, the portion of Maheshwar Prasad Narayan Singh’s speech that had been expunged by the Speaker, thereby presenting a distorted and inaccurate account of the Assembly’s proceedings. Following these events, the petitioner lodged a petition under Article 32 of the Constitution seeking the reliefs sought. In support of the petition, the learned counsel for the petitioner advanced several points. First, he contended that, as a citizen of India, the petitioner possessed the fundamental right guaranteed by Article 19(1) of the Constitution to freedom of speech and expression, a right that encompassed the propagation, publication and circulation of ideas, and that a State Legislature could not assert a privilege that would infringe this right. He framed this argument in two ways: (i) that any privilege enjoyed by a State Legislature must be subject to the freedom guaranteed to citizens under Article 19(1); and (ii) that even if the privilege were not expressly made subject to Article 19(1), the nature of the fundamental right and principles of statutory interpretation required the Court to read the provisions so that both the privilege and the fundamental right could operate concurrently. Second, the counsel argued that even assuming Article 194(3) prevailed over Article 19, the powers, privileges and immunities of a State Legislature were limited to those possessed by the House of Commons of the United Kingdom at the commencement of the Constitution on 26 January 1950, and that the House of Commons at that time did not enjoy a privilege to prevent publication of its proceedings or of portions that had been expunged by the Speaker. Third, reliance was placed on Article 21, which forbids deprivation of personal liberty except according to lawfully established procedure; the counsel asserted that the Committee of Privileges, by summoning the petitioner to appear at the Bar of the Legislature after conducting an enquiry that violated the Assembly’s rules—specifically Rules 207(2), 208(3) and 215—had infringed the petitioner’s rights under Article 21. Fourth, the counsel highlighted that Mr Maheshwar Prasad Narayan Singh had delivered a scathing critique of the Chief Minister, and that this hostile passage had been published in the “Searchlight”. He noted that the Chief Minister, who admittedly exercised control over the Legislature, was thereby implicated in the proceedings.

The Court observed that the Chief Minister, or at least the majority of the members of the Assembly, had acted with dishonest intent in provoking the initiation of proceedings against the petitioner for an alleged breach of privilege, and that such motive would invalidate the entire conduct of the Sub‑Committee’s meeting. The Court also noted the claim that the Committee of Privileges had examined an allegation that had not been formally referred to it by the House. The learned Solicitor General, appearing for the respondents, responded to these contentions. He summarized his arguments by stating that, under the Constitution, no single article enjoys a higher degree of sanctity than any other, even when that article deals with fundamental rights. He emphasized that Article 194(3) is not subject to Article 19, and therefore, if the House of Commons of the United Kingdom possessed the power or privilege to prevent the publication of its proceedings—or at least of the portions expunged by the Speaker—the Legislature of a State in India possessed a comparable privilege and could lawfully exercise it, even if such exercise infringed a citizen’s fundamental right. He further contended that, because the House of Commons enjoys such a privilege, the Legislature of Bihar could likewise exercise it and could take action against any person who breached it. The Solicitor General added that while a Court of Law may determine the existence and scope of a House’s privilege, it lacks jurisdiction to decide whether a particular individual actually committed a breach of that privilege. He asserted that the Legislature in the present case had not violated any of the Assembly’s rules relating to the Committee of Privileges, and even if it had, Article 212(1) of the Constitution barred any challenge to the validity of its proceedings on the ground of alleged procedural irregularity. He further pointed out that the petition did not allege that the Committee or the Assembly acted with dishonest intent, and even assuming that the Chief Minister had acted dishonestly—a claim the respondents denied—such motive would not invalidate the Committee’s or the Legislature’s final authority to determine whether a breach of privilege had occurred. The Solicitor General also denied that the Committee of Privileges had examined any allegation not referred to it by the House.

Turning to the broader issues, the Court found it appropriate to set aside subsidiary matters that lay outside the immediate controversy and to focus on the point directly raised in the case. It clarified that the matter did not concern the well‑settled right of a State Legislature to manage and regulate its internal affairs. Citing the textbook “Cases in Constitutional Law” by Keir and Lawson, page 126, the Court reproduced the following passage: “The undoubted privileges of the House of Commons are of three kinds. They include (i) exclusive jurisdiction over all questions which arise within the walls of the house, except, perhaps, in case of felony… (ii) Certain personal privileges which attach…”. The Court noted that this quotation described the three categories of privileges, including exclusive jurisdiction, personal privileges such as freedom of debate and immunity from civil arrest during the sitting of Parliament and for a specified period before and after its sessions, and the power to enforce decisions on matters of privilege by committing individuals to imprisonment for contempt of the House. The Court further stated that it was not called upon to decide the scope of a Court’s jurisdiction to set aside contempt orders issued by a Legislature or the warrants issued to enforce such orders. It observed that reported decisions indicated that when a contempt order or its implementing warrant disclosed the reasons, the Court could examine the existence and extent of the privilege, but when a bare order was issued without such disclosure, the Court had no authority to determine, based on other evidence, whether a privilege actually existed.

To members of Parliament, the most important privileges are the freedom of debate and immunity from civil arrest during the sittings of Parliament and for forty days before and after its assembly. The freedom of speech and the conduct of debates or proceedings in Parliament may not be impeached or questioned in any court or place outside Parliament. Additionally, the House possesses the power to execute decisions on matters of privilege, which includes committing members of Parliament or any other persons to imprisonment for contempt of the House. The Court noted that it was not required to decide the scope of its jurisdiction to set aside contempt orders issued by a Legislature or the warrants issued to enforce such orders. Reported authorities indicate that when a contempt order or its implementing warrant discloses the reasons, a Court may examine whether a privilege exists and its extent; however, where a bare order is issued without reasons, the Court lacks authority to determine, on the basis of other evidence, whether a breach of privilege has actually occurred. Since this issue does not arise in the present case, the Court refrained from expressing an opinion on it. The Legislature, as shown in the notice issued, the records sent to the petitioner, the counter‑affidavit filed and the arguments presented by the respondents, contended that a State Legislature has the privilege to prevent any citizen from publishing its proceedings, or at least the portions that the Speaker orders to be expunged, and therefore it may take action against a person who breaches such a privilege. Consequently, the essential question for determination was whether the Legislature possessed the asserted privilege. The Court observed that if the answer were negative, no further questions would remain for consideration.

The powers, privileges and immunities of a State Legislature are governed by Article 194 of the Constitution, while the freedom to propagate ideas, publish and circulate them is protected by Article 19(1)(a) of the Constitution. For ease of reference, both articles may be read side by side. Article 19 reads: “ (1) All citizens shall have the right‑ (a) to freedom of speech and expression.......................................................... (2) Nothing in sub‑clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub‑clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.” Article 194 states: “ (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State. (2) No member of the”. These constitutional provisions form the backdrop against which the Court examined the claim of privilege asserted by the State Legislature.

The Constitution provides that a member of a State Legislature may be sued in any court for anything he says or any vote he casts while sitting in the Legislature or in any of its committees. However, the Constitution also protects persons from being sued for material that is published by, or under the authority of, a House of the Legislature. Such publications may include reports, papers, votes or records of proceedings. In all other matters, the powers, privileges and immunities of a State Legislative House, as well as those of its members and committees, are to be defined by law enacted by the Legislature. Until such statutory definition is made, the Constitution stipulates that these powers, privileges and immunities shall be the same as those that existed for the House of Commons of the United Kingdom and its members and committees at the time the Constitution came into force. Moreover, the provisions relating to liability and privilege apply not only to elected members but also to any person who, by virtue of the Constitution, has the right to speak in, or otherwise take part in, the proceedings of a State Legislative House or any of its committees, treating them in the same manner as members of that Legislature.

The Court has repeatedly held that the guarantee of freedom of speech and expression under Article 19(1)(a) embraces the freedom to propagate ideas and the freedom of circulation, which together constitute a comprehensive protection that includes the freedom of the press. In Romesh Thappar v. State of Madras, the Court declared that the freedom of speech and expression covers the propagation of ideas and is secured by the freedom of circulation, thereby extending to press freedom. This principle was reaffirmed in Brij Bhushan v. State of Delhi and further supported by the judgment in Express Newspapers Ltd. v. Union of India, where Justice Bhagwati observed that the scope of freedom of speech and expression includes the freedom of the press. In Srinivasan v. State of Madras, the Court explained that the phrase “freedom of speech and expression” also gives a person the right to print material that may not be his own view but has been borrowed or printed under direction. Accordingly, the argument that Article 19(1)(a) embraces the freedom of the press in the broad sense outlined above is accepted. The Court emphasized that the importance of freedom of speech in a democratic society cannot be overstated and noted that clause (2) of Article 19, unlike other clauses, imposes only relatively narrow limits on the restrictions that may be placed on this freedom. Clause (2) permits the State to impose reasonable restrictions on the exercise of the right for reasons related to the security of the State, friendly relations with foreign States, public order, decency or morality, as well as for matters concerning contempt of court, defamation or incitement to an offence (see citations (1) [1950] S.C.R. 594, (2) [1950] S.C.R. 605, (3)).

The Court noted that Article 19(1)(a) guarantees the freedom of speech and expression, and that clause (2) of that article permits the State to impose reasonable restrictions in the interests of the security of the State, friendly relations with foreign States, public order, decency, contempt of Court, defamation or incitement to an offence, as reflected in the cited authorities [1959] S.C.R. 12, 118; (4) A.I.R. (1951) Mad. 70. It further observed that Article 13 declares any law inconsistent with, or derogating from, the fundamental rights to be void, and that clause (2) of Article 13 expressly prohibits the State from making legislation that contravenes those rights. In the words of Chief Justice Patanjali Sastri, the rights enumerated in Part III are “rights reserved by the people after delegation of the rights by the people to the institutions of government.” The Court affirmed that, notwithstanding the transcendent nature of these rights, the Constitution may empower the Legislature to limit them within reasonable bounds, an empowerment that is expressly provided for in clauses (2) to (6) of Article 19. Such limitations may be articulated by express wording or may be inferred as necessary implications, but the Court stressed that it should not readily infer a restriction without compelling justification, given the nature of the rights involved.

The Court explained that the Constitution employs distinct and well‑understood phrasing to resolve conflicts and to avoid overlap among its various provisions. Certain articles are expressly made subject to other constitutional provisions, for example Articles 71(3), 73(1), 105, 131 and others; some are made subject to specified articles such as Articles 81, 107(1), 107(2), 114(3), 120(1); while still other articles are declared effective notwithstanding any other provisions, as seen in Articles 120(1), 136(1), 143(2), 169(1). Where the Constitution adopts one of these devices, its intention is clear and unambiguous. However, there exist articles that are not expressly made subject to any other constitutional provision, nor are they declared effective notwithstanding other provisions. In such circumstances, the Court said, it is incumbent upon it to ascertain the intention of the Constituent Assembly.

To guide this interpretative task, the Court referred to Cooley’s treatise “Constitutional Law,” which observes that even a carefully drafted constitution may present questions of meaning. Cooley’s rule, quoted on page 427, advises that the whole instrument should be examined to determine the intention of each part, that effect should be given, if possible, to the entire instrument as well as to every section and clause, and that words should be presumed to be used in their natural and ordinary meaning. The Court restated this principle in another form: when two articles appear to be in conflict, every effort should be made to reconcile them or to allow them to coexist before discarding or rejecting the operation of either.

Finally, the Court observed that Article 194(3) of the Constitution, which is the provision presently under consideration, does not expressly make its clause subject to the Constitution as a whole or to the provisions of Article 19. The Court noted that Article 194 comprises three clauses, and that the first clause…

In the judgment the Court observed that Article 194(1) of the Constitution declared a freedom of speech within the Legislature of every State, and that this freedom was expressly made subject to the Constitution itself as well as to the rules and standing orders that regulated legislative procedure. The Court noted that the second clause of Article 194 provided protection to members of a State Legislature from any liability in any Court for anything said or any vote cast by them in the Legislature or in any committee of that Legislature, and also extended protection to any person who published, under the authority of a House of that Legislature, any report, paper, vote or procedural matter.

The Court then turned to the third clause of Article 194, which conferred certain powers, privileges and immunities on a State Legislature, its members and its committees. This clause was divided into two parts. The first part stipulated that the powers, privileges and immunities of a State Legislature and of its members and committees would be those that might from time to time be defined by law made by the Legislature. The second part, as a transitory measure, provided that until such powers, privileges and immunities were defined by law, they would be the same as those of the House of Commons of the United Kingdom and of its members and committees at the commencement of the Constitution.

Having set out the text, the Court asked whether the third clause conferred on the Legislature powers, privileges and immunities that infringed the fundamental right of a citizen under Article 19(1)(a), which guarantees freedom of speech and expression. The Court first pointed out that Article 19(1)(a) concerned the freedom of speech and expression of a citizen, whereas Article 194(1) guaranteed freedom of speech within the Legislature of a State. While Article 19(1) was general in scope and subject only to reasonable restrictions that could be imposed under its own clause (2), Article 194(1) made the legislative freedom subject to the Constitution and to the procedural rules and standing orders of the Legislature.

The Court explained that the protection in clause (2) of Article 194 followed from clause (1) and shielded legislators from court proceedings for the acts mentioned therein. However, the Court held that these two provisions did not affect a citizen’s fundamental right to publish the proceedings to which the citizen was entitled under Article 19(1). That right was addressed by clause (3). The Court observed that clause (3) dealt with the powers, privileges and immunities of a State Legislature and of its members and committees, other than those specified in clause (2), and that it was not expressly made subject to the provisions of the Constitution.

Finding it difficult to read the introductory words of clause (1) – “subject to the provisions of this Constitution” – into clause (3), the Court gave two reasons. First, the subject matter of clause (3) was broader in scope than that of clause (1), and therefore did not logically flow from clause (1). Second, the Court said that grammatically it was impossible to import the opening words of clause (1) into clause (3). Consequently, the Court proceeded on the basis that clause (3) was not expressly made subject to Article 19, nor was it expressly independent of other articles of the Constitution. The Court therefore concluded that the provision needed to be examined in the context of the Constitution as a whole to determine whether, by necessary implication, it excluded the operation of Article 19.

In the judgment, the Court observed that clause (3) of Article 194 did not follow from clause (1) and that, grammatically, the introductory words of clause (1) could not be inserted into clause (3). Accordingly, the Court proceeded on the basis that clause (3) was neither expressly made subject to Article 19 nor expressly independent of the other provisions of the Constitution. The Court therefore examined the wording of clause (3) together with the remaining constitutional provisions to determine whether, by necessary implication, clause (3) excluded the operation of Article 19. The Court first noted that clause (3) of Article 194 declared that the powers, privileges and immunities of a State legislative house, its members and its committees were to be defined by law made by the legislature itself. The second part of the clause, described by the Court as a transitory measure, provided that until such defining law was enacted, the powers, privileges and immunities would be those enjoyed by the House of Commons of the United Kingdom, its members and its committees at the commencement of the Constitution. The Court found it impossible to accept the argument that this second part was not intended to be temporary, because that argument contradicted the explicit language of the provision. The Court considered it inconceivable that the Constituent Assembly, having drafted a Constitution that detailed many areas of governance, would deliberately leave the privileges of State legislatures in a vague and uncertain state, requiring them to rely on the historic privileges of the British House of Commons as they existed at the moment the Constitution came into force. The Court explained that the privileges of the House of Commons were an organic development, noting that some rules might remain recorded but fall out of practice, and that privileges, like other branches of common law, resulted from compromises shaped by particular circumstances. The Court illustrated how difficult it was to determine the exact content and extent of the House of Commons’ privileges in any specific case, a difficulty that was evident in the present matter. The Court also observed that reliance had been placed on other constitutional articles to argue that the second part of clause (3) was not meant to be transitory. The Court referred to Article 135, which provided that, until Parliament enacted a law to the contrary, the Supreme Court possessed certain appellate jurisdiction. It also cited Article 137, which, subject to any law made by Parliament or rules made under Article 145, conferred on the Supreme Court the power to review any judgment or order it had issued. Further, the Court quoted Article 142(2), which stated that, subject to any law made by Parliament for that purpose, the Supreme Court, throughout the territory of India, held all powers to issue orders to secure the attendance of persons, to cause the discovery or production of documents, or to investigate or punish contempt of the Court. Finally, the Court mentioned Article 145, noting its relevance to the discussion of the Supreme Court’s rule‑making authority.

In the judgment the Court reproduced the provision that read: “Subject to the provisions of any law made by Parliament, the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court.” The Court then referred to Article 146(2), which states: “Subject to the provisions of any law made by Parliament, the conditions of service of officers and servants of the Supreme Court shall be such as may be prescribed by rules made by the Chief Justice of India or by some other Judge or officer of the Court authorised by the Chief Justice of India to make rules for the purpose.” Next, the Court cited Article 187(3), which provides: “Until provision is made by the Legislature of the State under clause (2), the Governor may, after consultation with the Speaker of the Legislative Assembly or the Chairman of the Legislative Council, as the case may be, make rules regulating the recruitment and the conditions of service of persons appointed to the secretarial staff of the Assembly or the Council, and any rules so made shall have effect subject to the provisions of any law made under the said clause.” The Court also noted clause (2) of Article 210, which declares: “Unless the Legislature of the State by law otherwise provides, this article shall, after the expiration of a period of fifteen years from the commencement of this Constitution, have effect as if the words ‘in English’ were omitted therefrom.” After reciting these provisions, the Court observed that no analogy existed between the first part of Article 194(3) and the aforementioned Articles. It explained that the cited Articles did not import the law of a foreign country, and that they either made existing law contingent upon any law made by Parliament or declared a particular law to remain in force unless altered by Parliament. By contrast, Article 194(3) expressly declared that the law governing powers, privileges and immunities would be made by a House of the Legislature from time to time, and it introduced a transitory clause indicating that until such a law was enacted, the powers, privileges and immunities of the House of Commons would be those of the Legislature as well. The Court concluded that part two of clause (3) of Article 194 was intended to be a transitory provision and that, in the absence of a clear contrary intention, it could not enjoy a higher sanctity than the first part of the same clause. The first part of clause (3) reads: “In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law.” Finally, the Court pointed out that Article 245 empowers a State to make laws for the whole or any part of the State, and that Article 246(3) provides that the Legislature of any State has exclusive power to make laws with respect to any of the matters enumerated in the Constitution.

In this case, the Court examined the provisions of List II of the Seventh Schedule of the Constitution, which is commonly called the State List. Item 39 of that list includes, among other matters, the powers, privileges and immunities of the Legislative Assembly and of its members and committees. The Court then turned its attention to clause (2) of Article 13, which is situated in Part III of the Constitution and deals specifically with fundamental rights. That clause forbids any State from enacting a law that takes away or diminishes the rights guaranteed by Part III. It further provides that any law made in contravention of this prohibition shall, to the extent of the contravention, be void. Consequently, the Court observed that any law made by a State legislature concerning the powers, privileges or immunities of a State legislative body would be invalid if it conflicted with the provisions of Article 19(1)(a). Such a law could survive only if it fell within a reasonable restriction that is expressly permissible under Article 19(2). The learned Solicitor General, who was appearing on behalf of the government, accepted this premise without raising any dispute or objection. The Court then asked why the second part of clause (3) of Article 194 should be interpreted as being exempt from the operation of fundamental rights. The Constitution expressly subjects any law that defines the privileges of a State legislature to the constraints imposed by fundamental rights. The Court found no reason to suppose that the Constitution omitted that limitation only when the privileges were modeled on those of the United Kingdom Parliament. To presume that the framers believed the privileges of the House of Commons were not subject to fundamental rights would be to attribute ignorance of the fact that the UK Parliament was sovereign. Consequently, the UK Parliament was not bound by any such restrictions on its legislative authority or any constraints imposed by another constitution. Accepting that contention would create an absurd result: a law enacted by the Indian Parliament or a State legislature granting certain privileges could be struck down as violating fundamental rights. At the same time, those very privileges, if they existed without any statutory provision, would continue to be valid under the law. The Court dismissed the speculative explanations that the Constitution‑makers might have thought the Commonwealth privileges would never offend fundamental rights, or that they intended a temporary exemption, as both far‑fetched and untenable. No credible justification was found for treating the privileges referred to in the two parts of clause (3) differently. If the Constitution had intended such a distinction, it would have introduced the second part of clause (3) with the words “Notwithstanding other provisions of …”.

In this case the Court observed that there was no justification for preferring Article 194 over Article 19(1) or for interpreting them in a way that would make one provision exclude the other. The Constitution requires the Court to give a harmonious construction to both provisions so that each may be given its full effect without being negated by the other. The Court found no inherent inconsistency between the two articles. Article 19(1)(a) guarantees every citizen the freedom of speech and expression, whereas the second part of Article 194(3) deals with the powers, privileges and immunities of the Legislature, its members and its committees. The Court noted that the Legislature and its members enjoy a wide range of powers and privileges, and that these privileges can normally be exercised without infringing on the rights of any citizen, especially a person who is not a member of the Legislature. When a conflict does arise, the Court held that the privilege must yield to the extent that it affects a fundamental right. This approach, the Court explained, gives full effect to both articles.

The Court then referred to the decision in Gunupati Keshavram Reddy v. Nafisul Hasan (1), where it was held that the order for the arrest of Mr Mistry and his detention in the Speaker’s custody breached the provisions of Article 22(2) of the Constitution. In that case the Speaker of the Uttar Pradesh Legislative Assembly had directed that Mr Mistry be arrested and produced before him to answer a charge of breach of privilege. Although the question was not examined in detail, five judges of the Supreme Court unanimously concluded that the arrest was a clear violation of Article 22(2), thereby indicating that Article 194 is subject to the provisions of Part III of the Constitution. The Court affirmed that it was bound by that decision.

Applying that principle, the Court held that the petitioner possessed the fundamental right to publish a report of the proceedings of the Legislature. Because no reasonable restriction had been imposed by law on that right, the actions of the respondents were found to infringe the petitioner’s fundamental right, and the relief sought by the petitioner was therefore entitled to be granted. The Court emphasized that the case did not illustrate a conflict between the Legislature and the Court; rather, it was a dispute between the Legislature and the citizens of the State whose representatives constitute the Legislature. While the Court expressed deep respect for the august body of the State Legislature, it also reiterated its duty, imposed by Article 32 of the Constitution, to protect the rights of citizens who, in theory, reserved certain rights for themselves and delegated the remaining powers to the Legislature. Consequently, every institution created by the Constitution must operate within its assigned field and must not encroach upon the rights of the people who created those institutions. Finally, the Court suggested that the appropriate authority should consider enacting a law to regulate the powers, privileges and immunities of the Legislature instead of leaving this area to unwritten conventions.

In a situation where the law is unclear, a citizen would be required to investigate the unwritten rules concerning the privileges of the House of Commons, even though doing so might expose him to a summons before the Legislature’s bar; such a finding would have been enough to resolve the petition. Nevertheless, because extensive argument was presented, the Court chose also to state its view on whether the relevant privileges of the House of Commons existed at the moment the Constitution began and, if so, how far they extended. Before addressing that substantive question, the Court found it helpful to outline briefly the extent of its own power to examine the nature and the range of any privilege claimed by the House of Commons. It is commonly said that each parliamentary House is the sole judge of its own privileges. Yet, early in the history of the British Parliament, this statement was questioned, and it was argued that a House’s jurisdiction was limited only to those privileges that had been defined by the Courts of Common Law. That issue was raised and resolved in the cases of Ashby v. White, Paty’s Case, Stockdale v. Hansard and the Case of the Sheriff of Middlesex. In each of those decisions, the common‑law rights of an individual were threatened by the House of Commons on the ground that the individual had breached a parliamentary privilege. The combined effect of those judgments is that the Courts refuse to allow the Houses to decide the outer limits of their own privileges, while they do permit the Houses to exercise exclusive jurisdiction within the limits that the Courts have recognised. This principle is succinctly expressed in Anson’s Law and Custom of the Constitution, page 190, which states that the privileges of Parliament, like the Crown’s prerogative, are rights created by law and therefore their limits can be identified and determined by the Courts of Law. The learned Solicitor General accepted this legal position, so the Court saw no need to examine those decisions in further detail. Consequently, the central issue that required resolution was whether the privilege that the respondents claimed actually existed and, if it did, how far it extended. Because the privilege asserted by the respondents would curtail a fundamental right of a citizen, the burden of proof rested heavily upon them to demonstrate, by clear and unmistakable evidence, that the House of Commons possessed such a privilege at the commencement of the Constitution. As the jurist Sir Edward Coke observed, a privilege that forms part of the custom of Parliament must be derived from the parliamentary rolls, other official records, established precedent and long‑standing practice. Accordingly, any evidence of such a privilege would have to be located in those sources.

The official journals of the House are prepared in the Journal Office by transcribing the manuscript minutes and the notes of the proceedings recorded by the clerks who sit at the table during each sitting of the House. In addition, decided cases and legal textbooks can be consulted to determine the privileges that belong to the Houses. The expression “at the commencement of the Constitution” is understood to refer to the privileges that were in force in the year 1950, when the House of Commons was operating as a modern legislature in a fully democratic nation, rather than to the obscure and turbulent privileges that existed during earlier periods of conflict and struggle. Accordingly, the burden fell on the respondents to prove with precision that the House of Commons possessed the specific privilege they alleged to have existed at the moment the Constitution began. The respondents asserted two distinct privileges: first, that the House of Commons enjoyed the privilege of prohibiting the publication of its proceedings; and second, that it possessed the privilege of prohibiting the publication of those portions of the proceedings that the Speaker had ordered to be removed. The Court observed that the second claim is subsumed within the first, because the broader privilege already includes the power to suppress any part of the proceedings that the Speaker wishes to expunge. Historical commentary on this privilege is provided in May’s Parliamentary Practice and in Halsbury’s Laws of England. In the second edition of Halsbury’s Laws of England, volume 24 (Lord Hailsham’s Edition), pages 350‑351 state that each House of Parliament may, if it deems appropriate, prohibit the publication of its own proceedings. In the House of Lords, it is a breach of privilege for any person to print or publish material concerning the proceedings of the House without its permission. The House of Commons, on numerous occasions, has declared that publishing its proceedings without the House’s authority constitutes a breach of privilege, and it has never formally withdrawn the orders it has issued on this matter. At the present time, however, neither House treats a newspaper report or any other publication of its proceedings as a breach of privilege unless the report is manifestly inaccurate or false. The footnote (d) on page 350 of the same volume traces the origin of this privilege, noting that the House of Commons’ concern for the privacy of its proceedings originated in the Long Parliament, when antagonism between the assembly and the King prompted the House to prevent its members or officers from furnishing the King with information that could incriminate them; this is reflected in the Resolutions of 13 July 1641 recorded in the Journals of the House of Commons, volume II, page 209. The privilege did not encounter unofficial reporters until after the Revolution of 1689, when such reporters began supplying newsletters with accounts—often prejudicial and inaccurate—of the Commons’ proceedings.

In the eighteenth century the House of Commons declared that any attempt by a news writer, a printer, or a publisher to insert into letters, minutes, or any other written material an account of the debates or other proceedings of the House or of any of its committees, whether during a recess or while Parliament was sitting, constituted “a high indignity to, and a notorious breach of privilege of, this House.” The resolution, adopted in 1738, further ordered that the House would pursue offenders with the utmost severity. The source of this resolution was recorded in the Journals of the House of Commons (1738, Vol. XXIII, p. 148) and cited in the Parliamentary History (Vol. X, pp. 799‑811). The same resolution was reiterated in later years, specifically in 1753 and again in 1762, as shown in the respective Journals (1753, Vol. XXVI, p. 754; 1762, Vol. XXIX, pp. 206‑207). Despite these strict pronouncements, unofficial accounts of the House’s proceedings continued to appear in print. A notable episode occurred in 1771 amid the disturbances associated with John Wilkes, when the House’s effort to prohibit publication of its debates sparked a confrontation with the City of London. This confrontation led to the imprisonment of the Lord Mayor and two aldermen, but it effectively ended the House’s attempts to prevent such publications.

May’s Parliamentary Practice conveys a similar view. On page 54, under the heading “Right to control publication of Debates and Proceedings,” the author observes that the power to exclude strangers, thereby ensuring the privacy needed for free debate, is intimately connected with each House’s authority to forbid the publication of its debates or proceedings. He notes that publishing the debates of either House has repeatedly been declared a breach of privilege, especially when the reports are false or distorted. The author further asserts that if a House wishes to keep its proceedings from public view, it may lawfully do so within the strict limits of its jurisdiction, and it may punish any breach of its orders.

Tracing the evolution of this privilege, May describes the modern practice. He states that the numerous orders issued by the House to forbid the publication of its debates, the proceedings of any committee, comments on those proceedings, or remarks on the conduct of Members—whether through newspapers, newsletters, or any other medium—have long fallen into disuse. Since 1909, the reporting of debates has been performed by an official reporting staff authorized by the Speaker, and the reports have been sold to the public by Her Majesty’s Stationery Office. The same conclusion is reiterated on page 56, where the author explains that, provided the debates are reported accurately and faithfully, the privilege that once prohibited their publication is effectively waived.

The Court observed that when the debates of either House were reported correctly and faithfully, the privilege that prohibited their publication was considered waived. The same conclusion appeared on page one hundred eighteen, where the judgment stated that orders forbidding publication were not enforced for accurate reports, but were enforceable when reports were made in bad faith. The learned author then enumerated eight categories of misconduct that were traditionally treated as breaches of the House’s privilege. The first category involved publishing a false account of the proceedings of the House of Lords. The second category covered publishing scandalous misrepresentations of what had been passed or said in debate in either House. The third category described publishing gross or wilful misrepresentations of particular members’ speeches. The fourth category related to publishing, under the guise of a member’s speech, a gross libel on the character and conduct of another member. The fifth category consisted of suppressing the speeches of particular members. The sixth category involved publishing a proceeding that the House of Lords had ordered to be expunged from its journals. The seventh category described publishing a libel concerning counsel appearing before a committee, presented as a report of that committee’s proceedings. The eighth and final category concerned publishing a forged paper that was publicly sold as His Majesty’s speech to both Houses. From these categories the author concluded that a showing of bad faith was a necessary ingredient for the privilege doctrine to apply. The author further noted that all the cited instances dated from the period between one thousand seven hundred fifty‑six and one thousand eight hundred ninety‑three.

One of the instances receiving particular emphasis from the learned Solicitor General concerned the publication of a proceeding that the House of Lords had ordered to be expunged from its journals. The author pointed out that the journal for that year was not available to ascertain the exact circumstances of the publication. The incident occurred in the year one thousand eight hundred one, and no comparable instances have been recorded between that year and one thousand nine hundred fifty. Relying on the authority of May, the Court accepted that the House of Lords had asserted its privilege in 1801 when its proceedings were published in bad faith despite the express order to expunge them. Cockburn C.J., speaking in the case of Wasan v. Walter, forcefully highlighted the irrelevance of invoking parliamentary privilege in a modern democratic framework. At page eighty‑nine, the learned Chief Justice observed that “It seems to us impossible to doubt that it is of paramount public and national importance that the proceedings of the houses of Parliament shall be communicated to the public, who have the deepest interest in knowing what passes within their walls, seeing that on what is there said and done, the welfare of the community depends.” He further argued that public confidence in government and legislation required such openness.

In the judgment, the learned Chief Justice posed a series of rhetorical questions to underscore the public importance of making parliamentary proceedings accessible. He asked how the nation could maintain its attachment to the Constitution if the activities of the great council were hidden in secrecy, and how representatives could effectively communicate with their constituents if the constituencies remained ignorant of what their elected officials were doing. He further questioned what would become of the right of subjects to petition on measures pending in Parliament if the public were kept uninformed about the business of either House, and whether anyone could doubt that modern publicity of parliamentary business is essential to the relationship among government, the legislature, and the country at large. The Chief Justice acknowledged a possible argument that, while the public interest generally favours openness, debates that impugn the character of individuals might merit suppression. He noted that enforcing such a distinction would place publishers of parliamentary reports in a difficult position, requiring them to scrutinise each debate for defamatory content. Moreover, he asserted that there is perhaps no subject in which the public has a deeper interest than the conduct of State servants, and that inquiries relating to such conduct should be disclosed fully. Turning to the contention based on the Standing Orders of both Houses, which formally prohibit publication of debates, the Chief Justice observed that, despite the standing orders, each House in practice permits, sanctions and even encourages the publication of its proceedings, providing all necessary facilities to reporters. He explained that individual members revise their speeches for publication in official records such as Hansard or public journals, and that references to former speeches are routinely incorporated into current debates. Collectively, the members of both Houses would regard the withholding of their debates from the public as a national misfortune. Consequently, the Chief Justice concluded that it is idle to claim that parliamentary publication is prohibited; the standing orders serve merely to give each House control over publication and to prevent or correct any abuse of the facility afforded. The passages were reproduced in full because they clearly illustrate the contemporary scope of the parliamentary privilege.

The Court examined the reasons for and the process by which the larger concept of parliamentary privilege had been gradually reduced to its present form. The Court described these observations as weighty, noting that if they had been suitable to the conditions of the nineteenth century, they would be even more appropriate for the year 1950, when the parliamentary system of government had been perfected in England. The Court then referred to Jennings’s book on “The British Constitution,” specifically to the passage on page 82, which read in full: “All this assumes, of course, that the House debates in public. Government and Opposition speak to each other, but for the education of the people. The criticisms brought against the Government are the criticisms of ordinary individuals; the answers of the Government are formally answers to the Opposition, but substantially they are replies to the questions raised in the factory, the railway carriage and the office. The members of the House of Commons were not elected for their special qualifications, but because they supported the policies which the majority of their constituents were prepared to accept. They have no authority except as representatives, and in order that their representative character may be preserved they must debate in public. Secret sessions were suited to the oligarchic government of the eighteenth century. They are the negation of democratic principles. No doubt there are exceptional occasions when secrecy is justified.” The Court explained that this passage succinctly set out the principles underlying the doctrine that, in a democratic country, parliamentary debates are public and should not be prohibited from publication.

The Court then traced the historical extent of the House of Commons’ privilege concerning the publication of its proceedings. It stated that in the seventeenth century the House had issued standing orders that barred publication of its proceedings, a precaution deemed necessary during a critical period when representatives were in conflict with the Crown and wished to keep their discussions from the Crown’s ears. In the aristocratic eighteenth century, the opposition to publication was based not only on fear of misrepresentation but also on anxiety about the pressure of public opinion. The Court observed that, as centuries passed, conflicts and compromises gradually and imperceptibly altered the situation, and as the parliamentary form of government became perfected and broadened, publication was not merely permitted but actively encouraged by the House of Commons.

According to the Court, by the year 1950 it would have been unimaginable, indeed an extraordinary occurrence, for the House of Commons to claim a privilege that prevented the publication of its proceedings. Although the original standing orders had not been expressly repealed or formally amended, the Court held that they were no longer enforced according to their literal terms; rather, practice and precedent had effectively modified them. The stringent portions of the orders had fallen into disuse and, in practice, their application was limited to preventing malicious or dishonest publication of the proceedings. Consequently, the Court concluded that in 1950 the House of Commons possessed no privilege to stop the publication of correct add faithful reports of its proceedings save

In situations involving secret sessions that are convened only under exceptional circumstances, the legislature possesses a narrow privilege that permits it to prevent the malicious publication of distorted, unfaithful or expunged reports of the proceedings. The Court held that the petitioner’s fundamental right guaranteed by Article 19(1) of the Constitution remains intact despite the existence of Article 194(3), and consequently the petitioner was entitled to succeed in the petition. The Court further expressed the view that even if Article 194(3) were to exclude the operation of Article 19(1), the petitioner would not be placed in a disadvantageous position in the present case. Apart from this, the charge set out either in the notice served on the petitioner or in the annexed documents does not attribute any malicious intention to the petitioner. The notice merely states that the Committee of Privileges, relying on the publication of a news item in the “Searchlight”, had found a prima facie case of breach of privilege against the petitioner. The accompanying resolution alleges that the petitioner breached privilege by printing the expunged portion of the speech of Maheshwara Prasad Narayan Singh, thereby publishing a perverted and unfaithful report of the proceedings. Additional documents attached to the notice include a motion moved in the House by another member, which charges the petitioner with publishing the expunged portion of the speech. The petitioner contended in his petition that, up to May 31, no member of the “Searchlight” staff, including himself, was aware that any part of the debate in question had been removed from the official record of the Assembly. Although the official record shows that certain portions of the speech were indeed expunged, no order issued by the Speaker on May 30 authorising the expungement was produced, and there was no order prohibiting the publication of the expunged portion. In the counter‑affidavit filed by the respondents, no allegation of malice against the petitioner was made; instead, the respondents relied on the principle that the legislature holds the privilege to prevent the petitioner from publishing the expunged segment of the speech. In the circumstances, neither the notice nor the attached documents demonstrate that the petitioner published the speech, including the expunged portion, with malice or with knowledge that any part was to be omitted. The Court reiterated that the legislature’s privilege extends only to preventing malicious publication of its proceedings, and since the petitioner was not alleged to have acted maliciously, the legislature possessed no authority to take action against the publication. Accordingly, the petition was allowed, and a writ of prohibition was ordered to restrain the respondents from proceeding against the petitioner for the alleged breach of privilege.

The Court observed that the petitioner had caused an article to appear in the newspaper entitled “Searchlight” on the date of 31 May 1957, and that the article set out a report of the discussion that had taken place in the Bihar Legislative Assembly on the preceding day, 30 May 1957. After reviewing the arguments presented and considering the reasoning expressed in the majority opinion of the Court, the judges concluded that the relief sought in the petition could not be granted. Accordingly, the petition was dismissed. The judgment further stipulated that neither party would receive an order for costs, meaning that each side would bear its own expenses associated with the proceedings.