A vital privilege exercised by the British House of Commons is the power to punish members and/or non-members for contempt/ breach of privilege. It is expedient to mention that the House of Commons claims superiority over Common Law Courts in the field of parliamentary privileges, and accordingly, refutes any interference in its exercise of privileges and the power to punish for contempt of the same. This power is also accessible by the Parliament & State Legislatures however, it is debatable whether there is conflict between the Parliament's exercise of power to punish for contempt qua the fundamental rights guaranteed under Article 19 & Article 21.

It would not be out of place to mention that the Hon'ble Supreme Court in a recent case titled Sita Soren v. Union of India, Criminal Appeal No. 451/2019 has held that firstly, Parliament or the state legislature is not the sole judge of what privileges it enjoys and secondly, Parliament or legislature may only claim privileges which are essential and necessary for the functioning of the House.

Part – I: Privileges Under The Constitution Of India

I(A). Article 105 and 194 (erstwhile Art. 169) of the Constitution of India

That framers of the Constitution of India were conscious of foregoing powers and privileges of the British House of Commons, while drafting the Article 105 and 194 (erstwhile Art. 169) of the Constitution of India.

That Articles 105 & 194 have already been quoted in extenso, accordingly, the subject-matter of its four clauses is enunciated below for ease of reference:

Clause (1) confers on the members freedom of speech in the legislature (subject to the provisions of the Constitution regulating the procedure in Part VI including Articles 208 and 211, and Part V including Articles 118 and 121), subject, of course, to certain provisions therein referred to.

Clause (2) gives immunity to the members or any person authorised by the House to publish any report etc. from legal proceedings.

Clause (3) confers certain powers, privileges and immunities on the House of the Legislature of a State and on the members and the committees thereof; and

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 committee thereof.

In light of the above it is contemplated that clause (1) has been expressly made subject to the provisions of the Constitution, whereas clauses (2) to (4) are not subject to the provisions of the Constitution, indicating the consciousness and intention of the framers of the Constitution. Further, to appreciate the consciousness and intent of the Constitution framers, relevant Constituent Assembly Debates (“C.A.D.”) are enunciated hereinafter for ease of reference of this Hon'ble Court.

That the C.A.D. discussed privileges of British House of Commons; on 3 June 1949, Article 169 (now Art. 194 of the Constitution) was debated, whereby, Dr. B. R. Ambedkar, the Chairman of the Drafting Committee, pointed out/ clarified the scope of privileges into two different classes:

        The privileges of the individual members of the House, such as freedom of speech and immunity from arrest while discharging duty in the Parliament.

        The privileges of the Parliament are much wider and extend to the rights of the Parliament against the public and also against the members of Parliament including the privilege/power to:

        “convict any citizen for contempt of Parliament and when such privilege is exercised the jurisdiction of the Court is ousted”.^[1]

In light of the foregoing in the CAD on Art. 169(3) (Art. 194(3)), it is clear that the framers of our Constitution were well aware that it was a privilege of the British House of Commons to commit for contempt by an unspeaking warrant of the Speaker and without interference by the Courts, accordingly, the framers desired to don/confer on Indian Legislatures.

In fact, during the debate, Dr. Ambedkar also expressed difficulties to codify or restrict the privileges of the Parliament; accordingly, the three courses available to the Drafting Committee in this regard were as under:

    First, to enumerate and set out in detail the privileges and immunities of the Parliament and its members. This exercise was considered as futile;

    Second, to adopt the Government of India Act, 1935; however, the same was rejected as the Act of 1935 did not confer any privileges and immunities on the Parliament and its members, except freedom of speech and immunity from prosecution for anything said inside the Parliament.

    Third, to adopt privileges of the House of Commons.

In light of the above it is argued that the Drafting Committee consciously adopted the third course as it was the only possible way, and no other alternative was open for the Parliament to don its privileges.^[2]

I(B). Effect of the 44^th Amendment qua Articles 105(3) and 194(3) of the Constitution:

The original provisions of Article 105(3) and 194(3) vis-à-vis amended articles thereof vide the Constitution (Forty-Fourth Amendment) Act, 1978 (“44^th Amendment Act”) are tabulated for ease of reference:

It is to be noted that the amendments made to Articles 105 and 194 by 44th Amendment are merely "cosmetic". As enunciated above, 44^th Amendment deleted/ omitted only words 'House of Commons', however, even today privileges of Parliament and State Legislatures are pari passu to House of Commons. The present argument is derived from the language of Art. 105 and Art. 194, as amended the privileges shall be those “of that House” and of its members and committees immediately before the coming into force of the 44th Amendment Act. Accordingly, one must turn to the privileges of the House of Commons to ascertain the privileges of our Parliament and the State Legislatures.^[3] It is a matter of record that neither Parliament nor any State Legislature has passed during any law defining its privileges court.

I(C). Parliamentary privileges & the doctrine of basic structure:

In light of the aforesaid, it is evident that the law laid down in Pandit M.S.M. Sharma v. Sri Krishna Sinha, 1959 Supp. (1) SCR 806 [“M.S.M. Sharma”] still holds the filed as the said law does not abrogate basic structure of the Constitution.

The Article 194 is subject to Article 19(1)(a) overlooks the provisions of clause (2) of article 194. The right conferred on a citizen under Article 19(1)(a) is subject to Art. 19(2), however, clause (2) of Article 194 categorically lays down that no member of the Legislature is to be made liable to any proceedings in any Court in respect of anything said or any vote given by him in the Legislature or in committees thereof, and that no person will be liable in respect of the publication by or under authority of the House of such a Legislature of any report, paper or proceedings. The provisions of clause (2) of Article 194, therefore, indicate that the freedom of speech referred to in clause (1) is different from the freedom of speech and expression guaranteed under Article 19(1)(a) and cannot be cut down in any way by any law contemplated by clause (2) of Article 19.^[4]

If the intention of clause (1) of Article 194 was only to indicate that it was an abridgement of the freedom of speech which would have been available to a member of the Legislature as a citizen under Article 19(1)(a), then it would have been easier to say in clause (1) that the freedom of speech conferred by Article 19(1)(a) when exercised in the Legislature of a State. There would have been no necessity for conferring “there shall be freedom of speech in the Legislature of every State”, dehors Article 19(2) of the Constitution.

Further, M.S.M. Sharma's Case followed the reasoning provided by Dixon C.J. in Queen vs Richards^[5] to hold that in a conflict between fundamental rights and privileges of the Legislature, harmonious construction required that the general rights must give way to the special privileges of the Legislatures. Thus, it is evident from the above that it was the intention of framers of the Constitution to exclude the court's interference in cases of contempt committed inside or outside the Legislature, and to distinguish power, privileges and immunities of the Legislatures conferred under Article 105(3) and 194(3) of the Constitution from fundamental rights under the Constitution.

Moreover, it must not be overlooked that the provisions of Article 105(3) and Article 194(3) are constitutional laws and not ordinary laws made by Parliament or the State Legislatures, therefore, they are as supreme as the provisions of Part III. Further, quite conceivably the Constitution makers, not knowing what powers, privileges and immunities Parliament or the Legislature of a State may arrogate and claim for its Houses, members or committees, thought fit not to take any risks to make such laws subject to the provisions of Article 13^[6]; though being satisfied with reasonableness of powers, privileges and immunities of the House of Commons at the commencement of the Constitution, they did not, in their wisdom, think fit to make such powers, privileges and immunities subject to the fundamental right conferred by Article 19(1)(a).^[7] The cardinal rules of construction ascertains the intention of the Constitution-makers from the language in the said Articles.

Accordingly, applying the principle of harmonious construction the provisions of Article 19(1)(a), which are general, must yield to Article 194(1) and the latter part of its clause (3) which are special law.

Part–II: Powers, Privileges and Immunities of State Legislatures: In re, 1964 (“Special Reference of 1964”)

II(A). Special Reference 1964 is NOT a precedent or law laid down under Article 141 of the Constitution:

That the Hon'ble Supreme Court while considering the Special Reference of 1964^[8] was exercising the jurisdiction under Article 143 of the Constitution i.e., the advisory jurisdiction, against the questions referred by the then Hon'ble President of India.

The scope of Art. 143 was considered fully in In re Kerala Education Bill, 1957^[9], wherein, it was held that the court would deal with a President's Reference bearing the principles laid down by the Judicial Committee and the Federal Court as valuable guides to the approach to be adopted by the Court. Further, such an opinion is not technically binding on the courts, and the courts giving the opinion could itself, in a contested litigation, be asked to reconsider it. This follows from the fact that an advisory opinion involves no lis binds nobody because it affects nobody's rights, and, therefore, lacks all the essential characteristics of a judicial function.

II(B). Special Reference 1964 limited to the questions raised therein:

Even if the Opinion of this Hon'ble Court in the Special Reference of 1964 were unanimous, the laying down principles of law, would not be binding precedent, for the questions are limited to the facts and circumstances of the case as set out in the President's Reference, so that if the facts were different, the law might have to be opined differently.

II(C). Special Reference 1964 is per incurium qua power to commit for contempt by unspeaking warrant:

That the opinion of the Hon'ble Supreme Court in Special Reference of 1964 is per incurium, as the same was opined by the majority without considering writings of the British jurists of highest distinction such as Maitland, Anson, Dicey and Keir & Lawson, on the issue of right of the British House of Commons to commit for contempt by an unspeaking warrant without interference of the Courts. Further, it is also noteworthy to mention that the precedents & decisions of the Privy Council were also not considered on the said issue.

Moreover, it would not be out place to mention that the aforesaid argument finds support in the minority opinion of Hon'ble Justice Sarkar, who has referred to the above authorities, namely Maitland, Anson, Dicey and Keir & Lawson to conclude that the “there is no dispute as to the nature of the recognised privileges of the [British House of] Commons”,^[10] and that the power to commit by a general warrant with the consequent deprivation of the Court's jurisdiction to adjudicate on the legality of the imprisonment, is a matter of privilege of the House and is not a right possessed by a superior court.^[11]

In light of the foregoing discussion, it is evident that “principle of harmonious construction the provisions of Article 19(1)(a), which are general in nature, must yield to Article 194(1) and the latter part of its clause (3) which are special”^[12] as laid down by the Constitutional Bench of the Hon'ble Supreme Court in M.S.M. Sharma.

In the alternative, a general rule the privileges of the House would prevail over a fundamental right, however, there may be exceptions to this rule,^[13] such as “when the facts displayed in the return could by no reasonable interpretation be considered as contempt” as opined by Hon'ble Justice Sarkar in Special Reference of 1964.^[14]

Views are personal.

[1] C.A.D. Vol. VIII, p. 582