Special Reference No. 1 of 1964 Vs. [1964] INSC 209 (30 September 1964)
1964 Latest Caselaw 209 SC

Special Reference No. 1 of 1964 V. [1964] INSC 209 (30 September 1964)

30/09/1964 GAJENDRAGADKAR, P.B. (CJ) GAJENDRAGADKAR, P.B. (CJ) SARKAR, A.K.

SUBBARAO, K.

WANCHOO, K.N.

HIDAYATULLAH, M.

SHAH, J.C.

AYYANGAR, N. RAJAGOPALA

CITATION: 1965 AIR 745 1965 SCR (1) 413

CITATOR INFO:

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

ACT:

Constitution of India, Art. 143(1)-Reference under, whether must relate to matters pertaining to President's powers and duties under the Constitution-Refusal to answer when justifiable.

Constitution of India, Art. 194(3)-Privileges of House of Commons conferred on Indian State Legislatures-Power to commit for contempt by conclusive general warrant whether one of such privileges---Privileges whether subject to provisions of the Constitution and to fundamental rightsPower to determine scope of privileges whether rests entirely with legislatures to the exclusion of the Courts.

Constitution of India, Arts. 32, 226-Power of Supreme Court and High Courts to entertain petitions challenging legality of committals for contempt by State Legislatures-Power to interfere where breach of fundamental rights alleged.

Constitution of India, Art. 211-Whether directory or mandatory-Its impact on Art.194(3).

HEADNOTE:

The Legislative Assembly of the State of Uttar Pradesh committed one Keshav Singh,who was not one of its members, to prison for its contempt. The warrant of committal did not contain the facts constituting the alleged contempt.

While undergoing imprisonment for the committal, Keshav Singh through his Advocate moved a petition under Art. 226 of the Constitution and s. 491 of the Code of Criminal Procedure, challenging his committal as being in breach of big fundamental rights; he also prayed for interim bail. The High Court (Lucknow Bench) gave notice to the Government Counsel who accepted it on behalf of all the respondents including the Legislative Assembly. At the time fixed for the hearing of the bail application the Government Counsel did not appear. Beg and Saghal JJ. who heard the application ordered that Keshav Singh be released on bail pending the decision of his petition under Art. 226. The Legislative Assembly found that Keshav Singh and his Advocate in moving the High Court, and the two Judges of the High Court in entertaining the petition and granting bail had committed contempt of the Assembly, and passed a resolution that all of them be produced before it in custody. The Judges and the Advocate thereupon filed writ petitions before the High Court at Allahabad and a Full Bench of the High Court admitted their petitions and ordered the stay of the execution of the Assembly's resolution against them. The Assembly then passed a clarificatory resolution which modified its earlier stand. Instead of being produced in custody, the Judges and the Advocate were asked to appear before the House and offer their explanation.

At this stage the President of India made a Reference under Art. 143(1) of the Constitution in which the whole dispute as to the constitutional relationship between the High Court and the State Legislative including the question whether on the facts of the case Keshav Singh 414 his Advocate, and the two Judges, by their respective acts, were guilt of contempt of the State Legislature, was referred,., to the Supreme Court for its opinion and report.

At the hearing of the Reference a preliminary objection as to the competency of the Reference was raised on behalf of the Advocate General of Bihar, on the ground that it did not relate to any, of the matters covered by the President's powers and duties under the Constitution. -It was also urged, that even if the Reference was competent, the Court.

should not answer it as it not obliged "to do so, and the answers given by it would not help) the President in solving any of the difficulties with -which' he might be faced in discharging his duties. The Court did not' accept these contentions and proceeded to hear the parties-which fell,broadly,into two groups-those supporting the Assembly and those supporting -the High Court.

On behalf of,the,Assembly it was-urged that by 194(3) of the Constitution all the power and immunities of the House of Commons of the United Kingdom on,. it. It. was I the sole judge 'of its privileges and the Courts had no jurisdiction to interfere with their exercise. In the alternative , it was contended that Courts in England never interfered virtue of Art. privileges with a committal by the House of Commons for contempt when the committal was by a general warrant, I.e., a warrant which did not state the facts constituting the contempt, and, therefore Courts in India were also precluded from examining the legality of the general warrants of, the State Legislatures. The proceedings in the High Court in the present case were, therefore, in contempt of the legislature.

Those supporting the stand taken by the High Court urged that the Legislature received the powers of the House of Commons subject to provisions of the Constitution and to the fundamental rights, that the power to commit by general warrant was not one of the privileges of the House of Commons, that by virtue of Articles 226 and 32, "the citizen -had the right to move the Courts when his fundamental rights were contravened, and that because of the provisions in Art. 211, the Legislature was precluded from taking any action against the Judges.

HELD : (Per P. B. Gajendragadkar C. J., K. Subba Rao, K. N. Wanchoo ' M. Hidayatullah, J. Shah and N.

jj.)The terms of Art. 143(1) are very wide and all that they require is that the President should be satisfied that the questions to be referred are' of such a nature and of such public imp that it would be expedient to obtain the -Supreme Court opinion on them. The President's order making the present Reference showed that he was so satisfied, and therefore the Reference was competent. The argument that a Reference "under Art. 143(1) could only be on matters directly 'related to the President's powers and duties under the Constitution was misconceived [431 E-F] 432 E-F].

Earlier References made by the President under Art. 143(1) showed no uniform pattern and that was consistent with the broad and wide words used in Art. 143(1). [433 C-D].

In re : The Delhi Laws Act, 1912, [1951] S.C.R. 747, In re:

The Kerala Education Bill, 1957, [1959] S.C.R. 995, In re:

Berubari Union & Exchange of Enclaves, [1960] 3 S.C.R. 250 and In re: Sea Customs Act, [1964] 3S.C.R. 787, referred to.

It is not obligatory on the Supreme Court to answer a Reference under Art. 143(1)-the word used in that Article being 'may, in contrast to the word 'shall' used in Art.

143(2). Refusal to make a report 415 answering the questions referred would however be justified only for sufficient and satisfactory reasons e.g., the questions referred being of a purely socio-economic or political character with no constitutional significance at all. The present Reference raised questions of grave constitutional importance and the answers given by the Court could help the President to advise the Union and State Governments to take suitable legislative or executive action 1 It was therefore the duty of; the court to answer it. [434 B-D; 433 G-H].

The advisory opinion rendered by the Court in the present Reference proceedings was not adjudication properly socalled, and would bind no parties as such. [446 H; 447 A].

(ii) The State Legislatures in India. could not by virtue of Art. 194(3) claim to be the sole of their powers and privileges to the exclusion of the courts. Their powers and privileges were to be found in Art. 194(3) alone and nowhere else, and the power to interpret that Article lay under the scheme of the Indian Constitution, exclusively with the Judiciary of this country. (Scheme of the Constitution discussed). [444 G-H; 446 G-H" It was not the intention of the Constitution to perpetuate in India the 'dualism' that rudely disturbed public life in England during the 16th, 17th and 18th centuries. The Constitution-makers were aware of the several unhappy situations that arose there as a result of the conflict between the Judicature and the Houses of Parliament, and the provisions of Arts. 226, 32, 208, 212(1) and 211 (examined by the Court) showed that the intention was' to avoid such a conflict in this country. [454 A-B; 455 C-E].

Article 211 which provides that the Legislatures could not discuss the conduct of the Judge in the discharge of his duties, was mandatory. [457 G-H].

State of U. P. v. Manbodhan Lal Srivastava, [1958] S.C.R. 533 and Montreal Street Railway Company v. Nornwndin, L. R. [1917] A.C. 170, referred to.

(iii) Although Art. 194(3) has not been made expressly subject to the provisions of the Constitution, it would be unreasonable in construing it to ignore the other provisions, if for valid reasons they were found to be relevant and applicable. Therefore wherever it appeared that there was a conflict between the provisions of Art.

194(3) and the provisions relating to fundamental rights, an attempt had to be made to resolve the said conflict by the adoption of the rule of harmonious construction as was done in Sharma Is case. [443 C-E].

Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha & Others, [1959] Supp. 1 S.C.R. 806.

(iv) In Sharma's case a majority of this Court held, in terms, that Art. 21 was applicable to the contents of Art.

194(3) though Art. 19(1) was not. The minority view was that Art. 194(3) was subject to all the fundamental rights.

[451 B-C].

The majority in Sharma's case cannot be said to have held that Art. 194(3) was independent of all the fundamental rights for the simple reason that it was held that Art. 21 was applicable, although on the facts of the case its provisions were found not to have been contravened. The petitioner in that case had not raised at all the general issue as to the applicability and relevance to Art. 194(3) of all the fundamental rights in Part 111, and therefore it was unnecessary for the Court to discuss and decide that general issue. His claim was based on the applicability of two Articles only i.e., Articles 21 and 19(1) (a). The Court A held that the former was applicable and the latter was not. This must therefore be taken to have been settled in Sharma's case. [451 C-F].

But Sharma's case cannot be said to have settled the issue whether Art. 22(2) was applicable to Art. 194(3) or not.

[Observations of the majority therein as to the correctness of the decision in Freddy's case which was decided on the basis that Art,. 22(2) was applicable, held to be obiter].

[452 D-E].

Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha & Others, [1959] Supp. 1 S.C.R. 806 and Gunupati Keshavram Reddy v.

Nafisul Hasaan and the State of U.P., A.I.R. 1954 S.C. 636, discussed.

(v) The view taken in Sharma's case that the laws defining the powers and privileges of the legislatures under the first part of Art. 194(3) would be subject to Art. 13 and therefore to the fundamental rights, did not require reconsideration. [453 G].

Anantha Krishnan v. State of Madras, A.I.R. 1952 Mad. 395, considered.

(vi) The first part of Art. 194(3) empowers the State Legislatures to define by law their own powers, privileges and immunities. The second part of the Article says that till they define their powers etc. in the above manner, their powers, privileges and immunities will be those of the British House of Commons. The second part was obviously intended to confer for the interim period till laws were made under the first part, those incidental privileges and immunities which every Legislature must possess in order that it may be able to function effectively. [442 C-E].

The powers of the House of Commons conferred by this clause are those which were still in existence at the commencement of the Constitution i.e., 26th January, 1950 and not those which had fallen into desuetude or the claim in respect of which had been given up. Further, only those powers can be deemed to have been conferred which were not only claimed by the House of Commons but also recognised by the British Courts. [442 F-H].

(vii) The claim that all the powers of the British House of Commons became vested in the Indian Legislatures by virtue of Art. 194(3) cannot be accepted in its entirety for there are many powers of the House of Commons-such as right of access to the sovereign, passing acts of attainder, impeachment, determining its own Constitution etc.which cannot be possibly exercised by the Indian Legislatures.

[448 D-G].

May's Parliamentary Practice, 16th Edn. p. 86, referred to.

(viii) Art. 194(3)did not confer on the Indian State Legislatures the right to commit for contempt by a general warrant which could not be examined for its validity by courts in habeas corpus proceedings. The right claimed by the House of Commons not to have its general warrants examined in habeas corpus proceedings, was-based on the consideration that the House of Commons was in the position of a superior court of record and had the right like other superior courts of record to issue a general warrant for the commitment of persons found guilty of contempt. There was a convention in England whereby the general warrants committing for contempt issued by a superior court of record were not examined by other courts. It was on that ground and not on the F ground of privilege that the general warrants issued by the House of Commons were treated as beyond scrutiny by the courts. [482 B-D 496 F].

417 May's Parliamentary Practice, 16th Edn. relied on.

Ashby v. White, L.J. (1701-05) 714, Earl of Shaftesbury's case, 16 E.R. 792, Bradlaugh v. Gossett, L.R. XII Q.B.D.

271, 12 State Tr.122, Sir Francis Burdett, Abbott, 104 E.R. 501, Stockdale v. Hansard, 12 E.R. 1112, Ashby v. White and Others, 92 E.R. 126, R. v. Paty & others, 92 E.R. 232, Murray's case, 95 E.R. 629, Brass Crosby, 95 E.R. 005, Burdett v. Abbott 3 E . R. 1289, Sheriff of Middlesex, 113 E.R. 119 and Howard v. Gossett, 116 E.R. 139, discussed and relied on.

Bradlaugh v. Gossett, L.R. XII Q.B.D. 271, held not applicable.

Speaker of the Legislative Assembly of Victoria v. Hugh Glass, (1869-71) III L.R., P.C. 560, Fielding and Others v.

Thomas, 1896, R., A.C., 600, The Queen v. Richards, 92 C.L.R. 157 and Dill v. (1864) 1 Moo. P.C. (N.S.) 487 (15 E.R. 784), not followed.

Observations of Gwyer C.J., in Central Provinces and Berar Act No. XIV of 1938 [1939] F.C.R. 18 to the effect that decisions in respect of other Constitutions could not be safely applied even when the Provisions interpreted are similar, relied on.

Observations of Parker J. in re: Hunt's case [1959] 1 Q.B.D.

678, referred to as indicating that even in regard to a commitment for contempt by a superior court of record, the court exercising its jurisdiction over a petition filed for habeas corpus would be competent to consider the legality of the said contempt notwithstanding the fact that the warrant for commitment was general or unspeaking.

The Indian State Legislatures were not at any time in their history, either under the Constitution Act. 1935, or under the Indian Independence Act, 1947, intended to be courts of record. The legal fiction in Art. 194(3) could not transfer the history of England to India and confer on the Indian State Legislatures the status of superior courts of record.

Thus the very basis on which the English Courts agreed to treat a general warrant issued by the House of Commons on the footing that it was a warrant issued by a superior court of record, was absent in their case, and so, it would be unreasonable to contend that the relevant power to claim a conclusive character for the general warrant which the House of Common-,, by agreement, was deemed to possess, became vested in the Indian Legislatures. On this view of the matter the claim made by the Uttar Pradesh Assembly had to be rejected. [492 A-B].

(ix) Even if the power to commit by non-examinable general warrant were treated as forming an integral part of the privileges of the House of Commons it would not follow that the Indian State Legislatures could exercise that power by virtue of Art. 194(3). [495-H].

The very existence of the powers of the Courts under Art.

226 and 32 necessarily implies a right in the citizen to approach the High Court or the Supreme Court for the protection of his fundamental rights. (The present dispute was really between a citizen and the Legislature and not one between the High Court and the Legislature). [494 A-B].

If a citizen moved this court and complained that his fundamental right under Art. 21 [held to be applicable to Art. 194(3) in Sharma's case] or any other applicable right, bad been contravened, it would plainly be the duty of this Court to examine the merits of the said contention. It would be no answer in such a case to say that the warrant issued against the citizen was a general warrant and a general warrant must stop all further judicial enquiry and scrutiny. The impact of the 418 fundamental right conferred on Indian citizen by Art. 32 on the construction of the latter part of Art. 194(3) was decisively against the view that a power or privilege could be claimed by the House though it may be inconsistent with Art. 21. In this connection it was relevant to recall that the rules for regulating the procedure of the House were subject to the provision of the Constitution under Art.

208(1). [493 D-E].

Observations of Simonds J., in In re : Parliamentary Privileges Act, 1770, [1958] A.C. 331 and Resolution of the House of Lords, C.J. 1702-04, pp. 555, 560, (Cited in May 16th Edn. p. 47), referred to.

It would be strange if the House which was incompetent because of Art. 21 1 to discuss the conduct of a Judge in the discharge of his duties, should have the power to summon him in custody for alleged contempt committed in discharge of his duties. If the claim of the House were upheld it would mean that the House could issue a general warrant against a Judge and no judicial,scrutiny,could be held in respect of the validity of such a warrant. This would Put the basic concept of judicial independence into grave jeopardy. [493 E-H].

It 'was also' doubtful whether the power to issue a general up-spcaking warrant was consistent with s. 554(2)(b) and s.

555 of the Code of Criminal Procedure [496 E-F].

Section 30 of the Advocates Act 1961, confers on all Advocates, the statutory right to practice in all courts, including the Supreme Court, before any Tribunal or person legally authorised to take evidence, and before any other authority or person before whom such Advocate is by or under any,law for the time being in force entitled to practice.

Section 14 of the Bar Councils Act recognises a similar right. Just as the rights of the Judicature to deal with matters before them under Art. 226 or Art. 32 cannot be subjected to the powers and privileges of the House under Art. 194(3), so the rights of the citizen to move the Judicature and the right of the Advocates to assist that process must remain uncontrolled by Art. 194(3). That is one integrated scheme for protecting the fundamental rights and for sustaining the rule of law in this country.

Therefore the right to commit by a conclusive general warrant which the State Assembly claimed to be an integral part of its powers or privileges was inconsistent with the material provisions of the Constitution and could not be deemed to have been included under the latter part of Art.

194(3). [495 E-H].

The power to commit by general warrant was moreover not essential for the effective functioning of a House of Legislature. The American Congress had been functioning effectively without such power. [497 B-E].

In India, there are 14 State Legislatures in addition to the Houses of Parliament. If the power claimed by the U.P.

Assembly were conceded it is not difficult to imagine that its exercise may lead to anomalous situations as when a member of one Legislature is committed for contempt by a general warrant issued by another Legislature on account -of a speech made by him in his own Legislature. [497 E-F].

(x) It was open to Keshav Singh in his petition under Art.

226 to implead the, House on the ground that his commitment was based on. the order passed by the House, and in that sense the House was responsible for, and had control over his commitment. [496 B-C].

The King v. The Earl of Crewe Ex parte Sekgome. [1910] 2 K.B.D. 576 and The King v. Secretary of State for Home Affairs Ex parte O'brien, [1923] 2 K.B.D. 361, referred to.

419 (xi) Although in England parties who stand committed for contempt by the house of Commons are not admitted to bail by courts, the position in India is different. If Art. 226 confers jurisdiction on the court to deal with the validity of the order of commitment even though the commitment has been ordered by the House, it follows that the court has jurisdiction to make an interim order in such proceedings.

[498 F-H] State of Orissa v. Madan Gopal Rungla and others, [1952] S.C.R. 28 and Maxwell on Interpretation of Statutes, 11th Edn. p. 350, relied on.

Lala Jairam Dav & others and King Emperor, 72 I.A. 120, held inapplicable.

(xii) On the facts of the case the High Court was competent to entertain the petition of Keshav Singh and to grant him bail pending, disposal of his petition. There was no contempt of the U.P. Assembly committed by Keshav Singh or his Advocate in moving the application under Art. 226, or by the High Court in entertaining the said petition and granting bail. It was not competent for the Legislative Assembly to direct the production of the two Hon'ble Judges and the Advocate before it in custody or to call for their explanation for their conduct. It was competent for the Full Bench of the Allahabad High Court to entertain and deal with the petitions -of the said two Hon'ble Judges and ,the Advocate, and to pass interim orders restraining the Speaker of the U.P. Assembly and other respondents to the said petitions from implementing the aforesaid direction of the Assembly. A Judge of a High Court who entertains or deals with a petition challenging any order or decision of a Legislature imposing any penalty on the petitioner (who is not a member of the Legislature) or issuing any process against the petitioner for its contempt (the alleged contempt having been committed outside the four-walls of the House), or for the infringement of its privileges and immunities, or who passes any order on such petition, does not commit any contempt of the said Legislature, and the said Legislature is not competent to take proceedings against such a Judge in the exercise and enforcement of its powers, privileges and immunities. [502 A; 503 C].

(xiii) It is necessary to remember that the status, dignity and importance of the two institutions, the Legislature and the Judicature, are derived primarily from the status, dignity and importance of the respective causes that are assigned to their charge by the Constitution.

These two bodies as well as the executive which is another important constituent of a democratic State, must function not in antinomy nor in a spirit of hostility, but rationally, harmoniously and in a spirit of understanding within their respective spheres, for such harmonious working of the ;three constituents of the democratic State alone will help the peaceful development, growth and stabilization of the democratic way of life in this Country. [447 D-E].

(xiv) The power to punish for contempt large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity of the court, but may sometimes affect it adversely.

Wise Judges never forget that the best way to sustain the dignity and stat of their office is to deserve respect from the public at large by them quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct. We venture to think that what is true of the Judicature is equally true of the Legislature. [501 F-G]..

420 Observations of Lord Atkin in Andre Paul v. Attorney General of Trinidad, A.I.R.1936 P.C. 141, referred to.

Per Sarkar J. (i) It is undoubtedly for the Courts to interpret the Constitution and therefore Art. 194(3). It follows that when a question arises in this Country as to whether the House of Commons possessed a particular privilege at the commencement of the Constitution, that question must be settled, and settled only by the courts of law. There is no scope of the dreaded 'dualism' appearing here, that is, courts entering into a controversy with a House of a Legislature as to what its privileges are. [509 A-B].

(ii) The words appearing in Art. 194(3) are "the powers, privileges and immunities of a House...... shall be those of the House of Commons." One cannot imagine more plain language than this. That language can only have one meaning and that is that it was intended to confer on the State legislatures the powers, privileges and immunities which the House of Commons in England had. There is no occasion here for astuteness in denying words their plain meaning by professing allegiance to a supposed theory of division of powers. [511 A-B].

Bradlaugh v. Gossett, (1884) 12 Q.B.D.271, Burdett v. Abbott. (1811) 14 East 1, In re : Delhi Laws, [1951] S.C.R.

747. Pt. M.S.M. Sharma v. Shri Sri Krishna Sinha. [1959] Supp. 1 S.C.R. 806, Speaker of the Legislative Assembly of Victoria v. Glass (1871) L.R. 3. P.C. App. 560 Queen v.

Richards, 92 C.L.R. 157, Queen v. Richards, 92 C.L.R. 171 and Fielding v. Thomas, [1896] A.C. 660, referred to.

(iii) The power to commit by a general warrant with the consequent deprivation of the jurisdiction of -the courts was, one of the privileges of the House of Commons. That privilege was possessed by the U.P. Assembly by virtue of Art. 194(3) of the Constitution. [524 C-D].

There is no authority to show that the House of Commons possessed the powers to commit by a general warrant because it was a superior court of record. Neither the history of the House, nor the judgments in English cases support that contention. The courts only treated the House as entitled to the same respect as a superior court. They did not say that the House was a superior court. [513 B-C, 522 B].

May's Parliamentary Practice, 16th Edn. Potter's Outlines of Legal History, (1958 Edn.) Anson's Law of the Constitution. 6th Edn. Vol. 1, referred to.

Bradlaugh v. Gossett, (1884) 12 Q.B.D. 271 Burdett v. Abbott, 5 Dow 165, Sheriff of Middlesex, (1840) 11 A & E 272, Stockdale v. Hansard, (1839) 9 AD & El and Howard v.

Gossett, (1874) 10 Q.B. 359. relied on.

It is fallacious to say that the right to commit by general warrant possessed by the House of Commons springs from some rule of comity of courts, or of presumptive evidence, or from an agreement between courts of law and the House, or lastly, from some concessions made by the former to the latter. [522 E-F].

All privileges of the House of Commons are based on law.

That law is known as Lex Parliamenti. That law like any other law is a law of the land which courts are entitled to administer. [522 F-G].

It is not for us to start new ideas about privileges of the House of Commons, ideas which had not ever been imagined in England. Researches into the period when these privileges were taking shape can afford no answer to their contents and nature in 1950. [523 G-H; 524 B-C].

421 Writers of undoubted authority as well as certain recent decisions of the Judicial Committee have treated the power to commit by a conclusive general warrant as a matter of privilege of the House and not as a right possessed by it as a superior court. [515 G-H].

May's Parliamentary Practice, 16th Edn. Cases on Constitutional Law by Keir and Lawson, Halsbury's Law's of England, Vol. 28, 467, Dicey's Constitutional Law, 10th Edn., referred to.

Speaker of the Legislative Assembly of Victoria v. Glass, Fielding v. Thomas, and Sheriff of Middlesex, relied on.

(iv) The decisions of the Judicial Committee may not be binding on Indian courts but they have high persuasive value, unless shown to be wrong. The question is whether the House of Commons had a certain privilege. If judicial notice of the privilege has to be taken, then under s. 57 of the Evidence Act, a reference to the authorised law reports of England would be legitimate, and if the existence of the privilege has to be decided as a matter of foreign law, then again under s. 38 of that Act a reference to these reports would be justified. And since they contain decisions of one of the highest courts in England, we are not entitled to say that what they call a privilege of the House of Commons of their country is not a privilege, unless some equally high authority taking the contrary view is forthcoming. [517 DF].

(v) It cannot be said that the privilege in question can be exercised by the Indian State Legislatures only subject to the fundamental rights of a citizen guaranteed by the Constitution. In Sharma's case this court laid down that the privileges of the House of Commons which were conferred on the House of a State Legislature by Art. 194(3) take precedence over fundamental rights. This decision was correct and did not require reconsideration. [524 E-F; 525 B-C, F].

In re : Delhi Laws Act, 1950, [1951] S.C.R. 747, referred to.

It was not held in Sharma's case that Art. 21 takes precedence over the privileges in Art. 194(3). Das C.J. no doubt said that there was no violation of Art. 21 in that case because the deprivation of liberty was according to procedure established by law. But that was only an alternative reason for he could have held-as he did in the case of Art. 19(1)(a)-that Art. 21 being a general provision and Art. 194(3) being special, the former must yield to the latter. [531 E-F; 532 B-E].

Another reason for saying that Das C.J. did not hold that Art 21 took precedence over the privilege to commit by a general warrant is the fact that he held that Reddy's case was wrongly decided. That case had held that Art. 22 had precedence over the privilege of committal. If Art. 22 did not have precedence, as Das C.J. must have held since he did not accept the correctness of Reddy's case, no more could he have held that Art. 21 would have precedence over the privilege to commit for contempt. [532 E-F].

(vi) The majority in Sharma's case no doubt said without discussion that the law under Art. 194(3) would be subject to all fundamental rights, but that is so only because Art.

13 says so. [528 C-D].

Article 13 makes a law bad if it conflicts with fundamental rights. it cannot be said that since Art. 13 might make laws made under cl. (3) of Art. 194 void, the privileges conferred by the second part must also be void. Article 13 has no application to the provisions of the Constitution itself. It governs only the laws made by a State Legislature which Art. 194(3) is not. The fact that in cl.

(1) of Art. 194 the words 422 'subject to the provisions of the Constitution' occur, while they are omitted from cl. (3) is a strong indication that the latter clause was not intended to be so subject. [528 EH).

(vii) When there is a conflict between a privilege conferred on a House by the second part of Art. 194(3) and a fundamental right that conflict has to be resolved as in Sharma's case by harmonising the two provisions. Harmonious construction means that both the provisions should be given maximum effect without one of them wiping out the other. In the instant case the conflict was between the privilege of the House to commit a person for contempt without that committal being liable to be examined by a court of law, and the personal liberty of a citizen guaranteed by Art. 21 and the right to move the courts in enforcement of that right under Art. 32 or Art. 226. If the right to move the courts in enforcement of the fundamental right is given precedence, the privilege which provides that if a House commits a person by a general warrant that committal would not be reviewed by courts of law, will lose all its effect and it would be as if the privilege had not been granted to a House by the second part of Art. 194(3). This was not harmonious construction. That-being so, it would follow that when a House commits a person for contempt by a general warrant that person would have no right to approach the courts nor can the courts sit in judgment over such order of committal.

[533 G-H, 534 A-C].

Observation of Lord Ellenborough C. J. in Burdett v. Abbott, referred to for possible exceptions to the rule. [534 C-D].

(viii) The Lucknow Bench was not apprised of the fact that the detention of Keshav Singh was under a general warrant, and till so apprised it had full competence to deal with the petition under Art. 226. It was not necessary in the present reference to decide the question whether in a habeas corpus petition where the commitment is for contempt the law permits release on bail, because the Reference was not meant to seek an answer to that question. No contempt was committed by the Hon'ble Judges or B. Solomon or Keshav Singh for the respective parts taken by them in connection with the petition as it did not appear that any of those persons knew that the commitment was under a general warrant. Since they were not guilty, it was not competent for the Assembly to order their production in custody.

Strictly speaking, the question as to bringing them in custody before the House did not arise on the facts of the case as the Assembly had modified its resolution in that regard. The Assembly was competent to ask for explanation from the two Judges and B. Solomon. As it had power to cormorant for contempt it necessarily had power to ascertain facts concerning the contempt. The Full Bench was competent to entertain the petition of the two Judges and B.

Solomon Advocate if on the facts of the case they could not be said to be guilty. It would follow that the Full Bench had the power to pass the interim orders it did. On the facts of the case, a Judge of a High Court who entertains or deals with a petition challenging any order or decision of a Legislature imposing any penalty on the petitioner or issuing any process against the petitioner for its contempt or for infringement of its privileges and immunities or who passes I any order on such a petition does not commit contempt of the said Legislature, and the said Legislature is not competent to take proceedings against such a Judge in the exercise and enforcement of its powers, privileges and immunities. [534 D; 537 D].

(ix) During the fourteen years that the Constitution has been in operation, the Legislatures have not done anything to justify the view that they do not deserve to be trusted with power. Though Art. 211 is 423 not enforceable the Legislatures have shown an admirable spirit of restraint and have not even once in all these years discussed the conduct of Judges. We must not lose faith in our people, must not think that the Legislatures Would misuse the powers given to them by the Constitution or that safety lay in judicial correction. Such correction may do more harm than good. In a modern State it is often necessary for the good of the country that parallel powers shoul exist in different authorities. It is not inevitable that such powers will clash. [541 C-E].

Advisory JURISDICTION: Special Reference No. 1 of 1964.

Special Reference under Art. 143 of the Constitution of India.

C.K. Dhaphtary, Attorney-General, H.N. Sanyal, SolicitorGeneral, S. V. Gupte, Addl. Solicitor-General, D. R. L.

lyengar and R. H. Dhebar, for Union of India.

M.C. Setalvad, G.S. Pathak, Jagadish Swaroop, S.N. Andley, P.L. Vohra, Rameshwar Nath, Mahinder Ndrain, Harish K. Puri and Suresh Vohra, for Hon'ble the Chief Justice and other Judges of the Allahabad High Court.

G. S. Pathak, Jagdish Swaroop, Bishun Singh, Gopal Behari, J.S. Trivedi, S.N. Pawnikar, S.N. Andley, P.L. Vohra and Rameshwar Nath, for Hon'ble Mr. Justice N.U. Beg.

N.C. Chatterjee, Asif Ansari, M.K. Ramamurthi, and R.K. Garg for Hon'ble Mr. Justice G.D. Sehgal.

H. M. Seervai, Advocate-General,41, Mahashtra, T. ) Z. Andhyarujina and S.P. Varma, for U.P. Vidhan Sabha.

N.A. Palkhivala, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for Hon'ble the Chief Justice, Maharashtra High Court.

J. M. Thakore, Advocate-General, Gujarat, J. B. Dadachanji, O. C. Mathur and Revinder Jain, for Hon'ble the Chief Justice, Gujarat High Court.

D. Narsaraju, N. R Ramdar, O.P. Malhotra, B. Parthasarthy, J.B. Dadachanji, O.C. Mathur, and Ravinder Narain, for Hon'ble the Chief Justice, Orissa High Court.

Murli Manohar Vyas, S. Murti, B.N. Kirpal, B.L. Khanna, K. K. Jain, Chitale and M. S. Gupta, for Hon'ble the Chief Justice, Rajasthan High Court.

Murli Manohar, S. Murti, B. N. Kirpal, B. L. Khanna,, K. K. jain, chitle and M. S. Gupta, for Hon'ble the Chief Justice, Madhya Pradesh High Court.

D.P. Singh, S. Balkrishnan, Shanti Bhatnagar and Lai Narain Singh, for Hon'ble the Chief Justice, Patna High Court.

Sup.C.1.165-2 424 A.C. Mitra and D.N. Mukherjee, for Hon'ble Speker, West Bengal Legislative Assembly.

S. S. Sanyal, S. K. Acharyya and D. N. Mukheriee, for Hon'ble Chairman, W.B.L.C. H.M. Seervai, Advocate-General, Maharashtra, T.R. Anandyarujina, R.A. Gagrat and V.J. Merchant, for Hon'ble the Speaker/Chairman Maharashtra L.A. & L.C.

G.N. loshi, Atiqur Rehman and K.L. Hathi, for Hon'ble the Speaker, Gujarat L.A. Atiqur Rehman and K.L. Hathi, for Hon'ble the Speaker, Himachal Pradesh Vidhan Sabha.

B.C. Barua, Advocate-General, Assam and Naunit Lal, for Hon'ble the Speaker, Assam Legislative Assembly.

D.M. Sen, Advocate-General, Nagaland and Naunit Lal, for Nagaland Legislative Assembly.

B.P. Jha, for Hon'ble the Chairman, Bihar Legislative Council and Hon'ble the Speaker Bihar Legislative Assembly.

K.L. Misra, Advocate-General, Uttar Pradesh, B.C. Misra, D.D. Chaudhury and C.P. Lal, for the Advocate-General for the State of U.P.

M. Adhikari, Advocate-General, Madhya Pradesh and I.N. Shroff, for the Advocate-General for the State of Madhya Pradesh.

N. Krishnaswamy Reddy, Advocate-General, Madras, V. Ramaswamy and A.V. Rangam, for the Advocate-General for State of Madras.

B.V. Subrahamanyam, Advocate-General, State of Andhra Pradesh, M. Jaganadha Rao and T.V.R. Tatachari, for the Advocate-General for the State of Andhra Pradesh.

B. Sen, S.C. Bose and P.K. Bose, for the Advocate-General for the State of West Bengal.

G.C. Kasliwal, Advocate-General, State of Rajasthan, M. V. Goswami, for the State of Rajasthan.

S.P. Varma, for the Advocate for the State of Bihar.

J.P. Goyal, for M/s. Keshav Singh and B. Soloman.

M. K.. Nambyar and N. N. Keswani, for Bar Council of India.

M. K. Nambyar, Chaudhury Hyder Hussain, B. K. Dhawan, Bishun Singh, Shiv Sastri and S. S. Shukla, for Oudh Bar Association.

425 R. Jethmalni, P.K. Kapila and A. K. Nag, for Western India Advocates Association (Intervener).

S. N. Kakar, C. S. Saran, G. P. Gupta, and S. C. Agarwal, for Allahabad High Court Bar Association (Intervener).

M.K. Nambyar and V.A. Seyid Muhammad, for Bar Association of India (Intervener).

R. V. S. Mani, Shaukat Husain, E. C. Agarwala, Shahzadi Mohiuddin and O. C. Agarwal, for Applicants-Interveners: (a) Lok Raksha Samaj (Sewak), (b) All India Civil Liberties Council (c) Sapru Law Society.

M. K. Rama murthi, R. K. Garg, D. P. Singh and S. C. Agarwal for Applicant-Intervener Delhi Union of Journalists.

K. Rajendra Chaudhury and K. R. Chaudhury, for Applicant Intervener, Bihar Working Journalists Union.

Chinta Subba Rao, for Applicant-Intervener, Institute of Public Opinion.

GAJENDRAGADKAR C.J. delivered the Opinion on behalf of SUBBA RAO, WANCHOO, HIDAYATULLAH, SHAH AND RAJGOPALA AYYANGAR JJ.

and himself. SARKAR J. delivered a separate Opinion.

Gajendragadkar C.J. This is Special Reference No. 1 of 1964 by which the President has formulated five questions for the opinion of this Court under Article 143(1) of the Constitution. The Article authorises the President to refer to this Court questions of law or fact which appear to him to have arisen or are likely to arise and which are of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon them.

Article 143(1) provides that when such questions are referred to this Court by the President, the Court may, after such hearing as it thinks fit, report to the President its opinion thereon. In his Order of Reference made on March 26, 1964, the President has expressed his conclusion that the questions of law set out in the Order of Reference are of such a nature and of such public importance that it is expedient that the opinion of the Supreme Court of India should be obtained thereon.

It appears that on March 14, 1964, the Speaker of the Legislative Assembly of Uttar Pradesh administered, in the name of and under the orders of the Legislative Assembly (hereinafter referred to as "the House"), a reprimand to Keshav Singh, who is a resident of Gorakhpur, for having committed contempt of the House and also for having committed a breach of the privileges of Narsingh Narain Pandey, a member of the House. The contempt and 426 the breach of privileges in question arose because, of a pamphlet which was printed and published and which bore the signature of Keshav Singh along with the signatures of other persons. In pursuance of the decision taken by the House later on the same, day, the Speaker directed that Keshav Singh be committed to prison for committing another contempt of the House by his conduct in the House when he was summoned to receive the aforesaid reprimand and for writing a disrespectful fetter to the Speaker of the House earlier.

According to this order, a warrant was issued over the signature of the Speaker of the House, Mr. Verma, directing that Keshav Singh be detained in the District Jail, Lucknow, for a Period of seven days, and in execution of the warrant Keshav Singh was detained in the Jail.

On March 19, 1964, Mr. B. Solomon, an Advocate practising before the Lucknow Bench of the Allahabad High Court, presented a petition to the High Court on behalf of Keshav Singh under section 491 of the Code of Criminal Procedure, 1898, as well as under Article 226 of the Constitution. To this petition were implemented the speaker of the House, the House, the Chief Minister of Uttar Pradesh and the Superintendent of the District Jail, Lucknow, where Keshav Singh was serving the sentence of improvement imposed on him by the House, as respondents 1 to 4 respectively. The petition thus presented on behalf of Keshav Singh alleged that his detention in jail was illegal on several grounds.