Pandit M. S. M. Sharma
Shri Sri Krishna Sinha and Others
|Citation||1959 Air 395|
|Petitioner:||Pandit M. S. M. Sharma|
|Respondent:||Shri Sri Krishna Sinha And Others|
|Date Of Judgment:||12/12/1958|
|Bench:||Sudhi Ranjan (Cj), Bhagwati, Natwarlal H. Sinha, Bhuvneshwar P.Subbarao, K.Wanchoo|
In the held that the state legislative assembly has the power to regulate the publication of its debates and other proceedings and this will act supersede the right to free speech. In this case the petitioner had published a statement of a member of Bihar Legislative Assembly despite an order of the speaker to expunge certain parts of the statement. It was found that the actions of petitioner did not fall under the provisions for freedom of speech mentioned in Article 19 of the constitution because the State legislative Assembly was granted authority for publication of proceedings under Article 194.
Supreme Court under Article 141 has the power to declare law which is binding to all Courts in the territory of India. Prior to 42nd amendment the privileges of state legislature were similar to that of House of Commons but after the amendment the privileges were to be those at the time of 42nd amendment and these privileges are to be evolved time to time from the house. This means that until house lays down its own privileges the existing ones will apply.
Petitioner M.S.M. Sharma was journalist who used to work with “Searchlight” which was a reputed English daily newspaper having circulation Bihar. Krishna Sinha was the Chief Minister of Bihar and was also the Chairman of the Privileges Committee of the Bihar Legislative Assembly On May 30, 1957, Maheshwar Prasad Narayan Sinha, a member of the Bihar Legislative Assembly delivered a statement in the Bihar Legislative Assembly in which he alleged that Mahesh Prasad Sinha was the one who guided the Chief Minister in the selection process of Ministers and other important decisions like transfer of public servants.
It was alleged that the ministries were not allotted correctly as the people who were in line to become ministers and were capable of becoming so were not considered for the post. Many other instances of encouragement of corruption by the government were also mentioned. He referred to the case of a District Judge who was only transferred but was not discharged as per the advice of the Chief Justice of the High Court of Bihar, bevause Mahesh Prasad Singa intervened in the case. Appointment of Mahesh Prasad Sinha as the chairman of Bihar state Khadi Board was also criticized. It was alleged that he was appointed on this position so that he can stay in Patna where had a procured an accommodation at Bailev road. This address was referred to as “one of the bitterest attacks against the way the Chief Minister was conducting the administration of the state.”
Following this address by Maheshwar Prasad Narayan Sinha a point of order was raised by another member of the assembly to which the speaker said“I have already ruled with reference to whatever has been said about Mahesh Babu that such words would be expunged from the proceedings. But, whatever may be said with reference to the Chairmanship of the State Khadi Board will remain in the proceedings and the Honorable Member has the right to speak on the matter.” By order of speaker of the legislative assembly some part of the statement was expunged. In spite of some parts being expunged Searchlight news paper on May 31,1957 published a report of the speech.
Nawal Kishore Sinha, a member of the Legislative Assembly on June 10, 1957 raised a question regarding breach of privilege of the House in the Legislative Assembly and issued a notice for the same. Consequently the matter was referred to the privileges committee by the legislative assembly. The committee issued a show cause notice to the petitioner calling upon him to explain why appropriate action should not be recommended against the breach of privilege. Petitioner first filed a writ petition under article 226 but this petition was then withdrawn in initial days of hearing and another writ petition was filed in the Supreme Court of India under Article 32 of the constitution. This petition was filed for protection of rights of petitioner granted under Article19 and Article21 of the constitution. It was contended that the notice issued by the privileges committee was in violation of right to freedom of expression under Article 19(1)(a) and the protection of personal liberty under Article 21
The Respondent contended that a State Legislature under Article 194(3) of the constitution enjoys all powers privileges and immunities similar to that of the House of Commons of British Parliament. Thus, “proceedings in the House are not in the ordinary course of business meant to be published at all and that under no circumstances is it permissible to publish parts of speeches which had been directed to be expunged.” [p.11] Consequently, such a publication is a clear breach of the privilege of the Legislative Assembly and it is entitled to protect itself by calling the offender to account.
Petitioner also argued that the provisions mentioned in Article 194(3) are subject to provisions mentioned in Article 19(1) (a).Even if a law is made under entry no39 of the state list then also it would need to fulfill the conditions as mentioned in Article 13 and any provision will be void if it is repugnant to the fundamental right.
- Has the House of the Legislature in India the privilege under Article 194(3) of the Constitution to prohibit entirely the publication of the publicly seen and heard proceedings that took place in the House or even to prohibit the publication of that part of the proceedings which had been directed to be expunged?
- Does the privilege of the House under Article 194(3) prevail over the fundamental right of the petitioner under Article 19(1)(a)?
In Anantha Krishnan v, State of Madras[i] it was held that
“As against this the learned advocate for the petitioner urges that the fundamental rights are under the Constitution in a paramount position, that under Article 13 the Legislatures of the country have no power to abrogate or abridge them, that the power to tax is the power to destroy and that, therefore, part 12 is inoperative in respect of the rights conferred under Part III. I am unable to agree. Article 13 on which this argument is mainly founded does not support such a wide contention. It applies in terms only to laws in force before the commencement of the Constitution and to laws to be enacted by the States, that is, in future. It is only those two classes of laws that are declared void as against the provisions of Part III. It does not apply to the Constitution itself. It does not enact that the other portions of the Constitution should be void as against the provisions in Part III and it would be surprising if it did, seeing that all of them are parts of one organic whole. Article 13, therefore, cannot be read so as to render any portion of the Constitution invalid. This conclusion is also in accordance with the principle adopted in interpretation of statutes that they should be so construed as to give effect and operation to all portions thereof and that a construction which renders any portion of them inoperative should be avoided. For these reasons I must hold that the operation of Part 12 is not cut down by Part III and that the fundamental rights are within the powers of the taxation by the State”.
Article 19(1)(a) and Article 194(3) have to be reconciled and the only way of reconciling the same is to read Article 19(1)(a) as subject to the latter part of Article 194(3), just as Article 31 has been read as subject to Article 265 in the cases of Ramjilal v. Income Tax Officer, Mahindergarh30 and Laxmanappa Hanumantappa v.Union of India31, where this Court has held that Article 31(1) has to be read as referring to deprivation of property otherwise than by way of taxation.[ii]
In Romesh Thappar v. State of Madras[iii], this Court ruled that freedom of speech and expression includes freedom of propagation of ideas and that freedom is ensured by
the freedom of circulation. This freedom is, therefore, comprehensive enough to take in the freedom of the press. The said view is accepted and followed in Brij Bhushan v. State of Delhi[iv]. To the same effect is the decision of this Court in Express Newspaper Ltd. v. Union of India[v], where Bhagwati J. delivering the judgment of the Court, held that freedom of speech and expression includes within its scope the freedom of the Press. In Srinivasan v. State of Madras[vi] it was held, on the basis of the view
expressed by this Court, that the terms freedom of speech and expression “would include the liberty to propagate not only one’s own views but also the right to print matters which are not one’s own views but have either been borrowed from someone else or are printed under the direction of that person.
Majority opinion was given by Chief Justice Sudhi Ranjan Das
The Court said that the since legislature of Bihar had not passed any law with reference to the powers privileges and immunities of the legislative assembly as mentioned in schedule 7 list-II entry list number 39. Hence the Legislative assembly of Bihar will enjoy similar powers privileges and immunities as that of House of Commons at the time of commencement of the constitution as mentioned in Article 194(3). Hence all the powers privileges and immunities were examined by the Court. In 1641, “the House of Commons of the Long Parliament framed standing order ‘that no member shall either give a copy or publish in print anything that he shall speak in the House’ and ‘that all the members of the House are enjoined to deliver out no copy or notes of anything that is brought into the House, or that is propounded or agitated in the House’.” [vii]
The above mentioned order had not been abrogated or repealed and was still in existence and applicable. Various other resolutions passed by the house of commons were also considered and the conclusion was that at the time of commencement of the constitution “the House of Commons had at the time of commencement of the Constitution the power or privilege of prohibiting the publication of even a true and faithful report of the debates or proceedings that [took] place within the House. A fortiori the House had at the relevant time the power or privilege of prohibiting the publication of an inaccurate or garbled version of such debates or proceedings.” [viii]
Hence the court held that as per Article 194(3) of the constitution the Bihar state assembly had similar powers, privileges and immunities as that of house of common at the commencement of the constitution. Hence the assembly had the power to prohibit the petitioner from publishing any part of debate which was by order of speaker expunged.
The Petitioner argued that Article 19(1)(a) of the Constitution prevailed over Article 194(3) of the Constitution which means that Article 194(3) is subject to Article 19(1)(a).
The Court rejected this argument on the basis that the language of Article 194 subjected only “clause (1) expressly to other provisions of the Constitution”. [ix]On the other hand, “clause (2) to (4) [of Article 194] had not been stated to be so subject. Hence it can be assumed that Constitutional makers did not intend to subject those clauses to other provisions of the Constitution.” [x]Therefore, Article 194(3) was not subject to Article 19(1)(a) of the Constitution. Hence, the Petitioner failed in contending that the privileges of the Bihar Legislative Assembly were subject to his fundamental right to free speech and expression.
The Petitioner contended that Article 194(3) is in violation of his fundamental right to free speech under Article 19(1)(a) of the Constitution. The Court held that a law passed by a “State Legislature in pursuance of earlier part of Article 194(3) will not be a law in exercise of constituent power, but will be one made in exercise of its ordinary legislative powers. Consequently, if such a law takes away or abridges any of the fundamental rights, it will contravene the provisions of Article 13 and it will be void.” [xi]
However, the powers, privileges or immunities of Legislative Assembly provided by the latter part of Article 194(3) would not be void even if it is repugnant to fundamental rights because “Article 194(3) is part of the Constitution and as supreme as Part III of the Constitution.” [xii]In light of the conflict between the Article 19(1)(a) and Article 194(3) of the Constitution, the Court held that the “principle of harmonious construction must be adopted and so construed, the provisions of Article 19(1)(a), which are general, must yield to Article 194(3) which are special”. [xiii]
This case was a clear example of rule of harmonious construction. Main issue that was raised in this case whether Article 194(3) would supersede Article 19(1) (a) which is a fundamental right mentioned in part-III of the constitution. The Court cleared the ambiguity with regards to any law which would be made as per entry no32 list-II schedule 7 of the constitution. Thus, the Court came to the conclusion that notice and proposed action by the Committee of Privileges of the Bihar Legislative Assembly was proper and hence dismissed the petition.
[i] AIR (1952) Mad 395, 405
[ii] 1959 AIR 395
[iii] (1950) SCR 594
[iv] (1950) SCR 605
[v] AIR (1958) SC 578, 614
[vi] AIR (1951) Mad 70