'Fundamental Rights Vs. Legislative Privileges' ; Reference Pending Before 7 Judge Bench Since 2005 Should Be Given Some Priority, Says Supreme Court

The Supreme Court, in its judgment delivered on Thursday [Facebook vs. Delhi Assembly], observed that the reference which raises the issue of interplay of fundamental rights and parliamentary privileges, pending before 7-judge bench since 2005 needs to be given some priority.

The larger issue of privileges vis-a-vis the right of free speech, silence, and privacy in the context of Part III of the Constitution is still at large in view of the reference to the larger Bench in N. Ravi vs. Legislative Assembly, the bench headed by Justice Sanjay Kishan Kaul noted.

We find it rather difficult to countenance the plea that the judgment of this Court in MSM Sharma stands whittled down by subsequent judicial pronouncements or that powers, privileges and immunities under Articles 105(3) and 194(3) of the Constitution must give way to the more fundamental right of free speech under Article 19(1)(a) of the Constitution in view of the reference pending before the larger Bench in N. Ravi, the bench also comprising Justices Dinesh Maheshwari and Hrishikesh Roy said.

N. Ravi Reference

In December 2004, the Constitution bench in N. Ravi case had referred the case in view of the conflict between MSM Sharma v. Dr. Shree Sri Krishna Sinha and Special Reference No.1 of 1964. In N. Ravi case, it was contended that, though in Special Reference No.1 of 1964, the court agreed with the majority judgment in MSM Sharma, there are some observations which are in conflict with the law laid down in the said decision. That is why, the bench referred the case to seven judge bench. Journalist N. Ravi and others had approached the Apex Court after the Tamil Nadu assembly ordered the arrest of journalists on charges of breach of privilege and gross contempt.

MSM Sharma

Pandit M. S. M. Sharma, who was the Editor of the English daily newspaper Searchlight of Patna, was called upon by the Secretary of the Patna Legislative Assembly to show cause before the Committee of Privileges of the Assembly why appropriate action should not be taken against him for the breach of privileges of the Speaker and the Assembly for publishing in its entirety a speech delivered in the Assembly by a member thereof, portions of which were directed to be expunged by the Speaker.  This notice was assailed before the Apex Court, contending that the same was a violation of his fundamental right to freedom of speech and expression under Art. 19(1)(a) and of the protection of his personal liberty under Art. 21 of the Constitution, and that, as an editor of a newspaper, he was entitled to all the benefits of the freedom of the Press.

The issue considered by the five judge Constitution bench was whether the privileges of the Legislature under that Article prevail over the fundamental right guaranteed by Art. 19(1)(a)?  The bench (majority) held that that the fundamental right to free speech and expression under Article 19(1)(a) must yield to Article 194. "It would not be correct to contend that Art. 19(1)(a) of the Constitution controlled the latter half of Art. 194(3) or of Art. 105(3) Of the Constitution and that the powers, privileges and immunities conferred by them must yield to the fundamental right of the citizen under Art. 19(1)(a). As Arts. 194(3) and 105(3) stood in the same supreme position as the provisions of Part III of the Constitution and could not be affected by Art. 13, the principle of harmonious construction must be adopted.  So construed, the provisions of Art. 19(1)(a), which were general, must yield to Art. 194(1) and the latter part of its cl. (3), which are special, and Art. 19(1)(a) could be of no avail to the petitioner.", the court had observed.

Special Reference No.1 of 1964

In this case, the U.P. Assembly sentenced one Keshav Singh to be detained in a civil prison for a period of 7 days for having committed a breach of the privileges of Narsingh Narain Pandey, a member of the House. The Allahabad High Court  enlarged him on bail thereafter. The Legislature then passed resolution against the two concerned judges to be brought in custody before the House. A Full Bench of 28 judges consisting of the strength of the Court thereafter assembled to deal with the petitions filed by the two judges against this resolution. The bench restrained the Speaker from issuing a warrant against the judges and the Marshal of the House from executing the warrant. In order to resolve this confrontation, the President of India decided to exercise the power to make a reference to this Court under Art. 143(1) of the Constitution. The reference by the President of India was on the question of the exercise of powers, privileges and immunities of the State legislature vis-à-vis the power of the High Court and the Judges to discharge their duties.

"We have already observed that the majority decision has accepted the contention raised by the Legislature of a State prescribing its powers, privileges and immunities as authorised by the first part of Art. 194(3), it would be subject to Art. 13. Mr. Seervai has attempted to challenge the correctness of this conclusion. He contends that the power conferred on the legislatures by the first part of Art. 194(3) is a constitutional power, and so, if a law is passed in exercise of the said power, it will be outside the scope of Art. 13. We are unable to accept this contention. It is true that the power to make such a law has been conferred on the legislatures by the first part of Art. 194(3), but when the State Legislatures purport to exercise this power, they will undoubtedly be acting under Art. 246 read with Entry 39 of List II. The enactment of such a law cannot be said to be in exercise of a constituent power, and so, such a law will have to be treated as a law within the meaning of Art. 13. That is the view which the majority decision expressed in the case of Pandit Sharma ([1959] Supp. 1 S.C.R. 806), and we are in respectful agreement with that view", the Court had observed in that judgment.

Case: AJIT MOHAN VS. LEGISLATIVE ASSEMBLY NATIONAL CAPITAL TERRITORY OF DELHI [WPC 1088 OF 2020]
Coram: Justices Sanjay Kishan Kaul, Dinesh Maheshwari and Hrishikesh Roy
Citation: LL 2021 SC 288

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