Be cautious, be circumspect

Three cases decided by constitution benches of the Supreme Court of India (in 1952, 1958 and 1965) have laid down the contours of the law concerning parliamentary and legislative privilege in India and their impact on press freedom. But they have not been uniformly consistent. In the first instance, in March 1952, when a journalist Homi Mistry was arrested in Bombay and taken in custody to Lucknow, to be produced before the Speaker of the Uttar Pradesh Legislative Assembly to answer a charge of breach of privilege, a constitution bench of the Supreme Court set him free since it was a breach of one of his fundamental rights: Article 22(2), that no person shall be detained in custody (beyond a period of 24 hours) without the authority of a magistrate. Fundamental rights, the bench of five judges said, would override legislative privilege.

But when some years later (December, 1958), one M.S.M. Sharma, editor of an English language newspaper, Searchlight, was called upon by the Speaker of the UP Legislative Assembly to show cause why he should not be proceeded in contempt of the House for publishing expunged portions of a member’s speech, a constitution bench of five judges (by majority 4:1) refused to interfere. This was the second incident. Sharma first invoked the precedent of the earlier constitution bench decision in Mistry’s case (1952), but the court said that this decision was not a binding precedent, since it was based on a concession. He then invoked his fundamental right under Article 19(1)(a) — right to freedom of speech and expression — but the court said that Article 194(3) — privileges of a state legislature — took precedence over Article 19(1)(a). Ultimately, Sharma relied on Article 21 of the constitution which provides that “no person shall be deprived of his life or personal liberty except according to the procedure established by law”. But the court was not impressed. The editor had been deprived of his personal liberty as a result of proceedings properly conducted before the committee of privileges, and such deprivation was therefore in accordance with procedure established by law. It must be left to the House itself (the court said) “to determine whether there has in fact been any breach of its privilege”. On this occasion parliamentary/legislative privilege triumphed over freedom of speech and of the Press — but not without a spirited dissent by Justice Subba Rao, (later to become India’s Chief Justice).

In the third case — in Keshav Singh (1965) — a special constitution bench of seven judges of the Supreme Court (in a presidential reference) reaffirmed the view expressed in the Searchlight Case (1959) — that Article 19(1)(a) could not be invoked when there was a contempt of the legislature. But the court then went on to say (by a majority of 6:1) that though Article 105(3) and Article 194(3) of the constitution conferred upon the Houses of Parliament and state legislatures, the same jurisdiction with respect to their privileges as that of the House of Commons, they definitely did not incorporate the rule that the legislatures were also to be the final judges of those privileges: courts in India could and would scrutinise their decision under Article 21, especially since neither Parliament nor state legislatures in India were possessed of the power that was enjoyed by ancient usage by the British House of Commons, that of a “High Court of Parliament”.

However, none of the three decisions of the Supreme Court have answered the question recently raised in the case concerning contempt proceedings initiated by the State Legislative Assembly of Chennai — where a state legislature has decided, after observing all procedural rules, that a person (not its member) has insulted or lowered the dignity of the House, and imposed punishment on him, could the decision and sentence be subjected to the scrutiny of a Writ Court, on merits? It is submitted that the court’s scrutiny is not excluded for the following reasons: one, no authority in India, whether executive or legislative, can claim immunity from scrutiny of its decisions by the higher judiciary except as provided in the constitution. Whilst the constitution does provide (Articles 122(1) and 212(1)) that the validity of any proceeding in Parliament or a state legislature shall not be called in question (in any court) this injunction is limited to a specific ground viz. for an alleged irregularity of procedure. As held by the constitution bench of seven judges in Keshav Singh’s case (1965) none of the legislative bodies created under the Constitution of India (Parliament or state legislatures) are courts of record nor can they exercise the judicial power of the state: their function and authority is to “make laws”.

Two, in three different provisions of our constitution the decision of the specified authority named therein has been declared to be “final” — in Article 217(3), Article 311(3), and in Paragraph 7 of the Tenth Schedule (the anti-defection code). Despite this, the Supreme Court has held not once, but on three different occasions, that the concept of finality — whether statutory or constitutional — does not detract from or abrogate the power of judicial review, and that even a decision or order, which is declared by the constitution to be “final”, can be inquired into and set aside by the court on grounds of perversity and arbitrariness.

Three, unlike the constitutions of the United States and of Australia, the Constitution of India 1950 does not separately define judicial power or specifically entrust it to the judicature. Yet, the constitution’s silence as to the vesting of judicial power is wholly consistent with its remaining with the judicature, where it has always been for more than a century, ever since 1862 when high courts were originally established in British India.

The first Constitution of Ceylon (like the Constitution of India) was based on the Westminister model, and like India’s Constitution, it did not provide for any express vesting of judicial power in the courts. And yet the Privy Council held (in Liyanage’s case, 1966) that once it was manifest, in a written constitution, that the judiciary should be free from political, legislative and executive control, it was clear that judicial power could not be shared by the executive or by the legislature. The observations and dicta in Liyanage’s case have been often cited with approval in decisions of the Supreme Court.

Even in England, where the House of Commons and the House of Lords were together regarded as functioning as the “High Court of Parliament”, and where the causes of committal for contempt by warrants of either House could not be enquired into by courts of law, there were always exceptions. It had long been held in a series of cases — that if the ground of commitment was “palpably and evidently arbitrary and unjust” courts in England must look at it and act upon it “as justice may require from whatever body it may profess to have proceeded.”

In Keshav Singh’s case (1965) the Supreme Court had likened the legislative power of committing for contempt with the power of the higher judiciary to punish for contempt of court. The judges said: “We ought never to forget that the power to punish for contempt large as it is, must always be exercised cautiously, wisely and with circumspection… We venture to think that what is true of the Judicature is equally true of the Legislatures.” The italicised words are well-chosen: they emphasise that where the power is not so exercised, scrutiny and correction by the courts is warranted.