Decided on March 25,1993


Referred Judgements :-



- (1.)TWO members of the Kerala Legislative Assembly Sri. B. Raghavan and Sri. S. Sharma, are nominated as members of the Syndicate of the Cochin University under S. 17 of the Cochin University of Science and Technology Act. In accordance with the provisions of the First Statutes the aforesaid two members of the Syndicate were nominated to the Selection Committee for the post of sweeper-cum-cleaner (coming within the category of non-teaching staff) in the cochin University of Science and Technology. They were nominated to the selection Committee in their capacity as members of the Syndicate. An interview for the above post was scheduled to be conducted in the University Guest House on 27-9-1991 and 28-9-1991. When the Selection Committee arrived at the Cochin university premises, a large gathering of local people had arrived at the gate of the University Guest House to protect against the action of the University authorities in not giving the local people due representation in the matter of selection to the post for which recruitment was to take place. The group of people obstructed and damaged the car in which the Pro Vice Chancellor and the members of the Selection Committee were proceeding to the Guest House at about 11. 45 a. m. in the University Campus near the Ship Technology Department. According to the petitioner due to the timely intervention of the police party, all the inmates of the car were rescued and later the Pro Vice Chancellor and the Committee members went to the Mathematics Department which is about 200 meters from the Guest House. It is also reported that the members of the committee were manhandled including the two members of the Legislative Assembly who were members of the Selection Committee. One of them was even injured in the incident which happened on that day. Immediately after the incident the petitioner-Assistant Commissioner of Police reached the spot and the M. L. As. were introduced to him by the Pro-Vice Chancellor. It is said that Sri. Raghavan enquired as to why the petitioner did not reach early in spite of the feet that information was given to the police earlier. He abused Sri. Raghavan and even refused to help the M. L. As. to be taken to the hospital in spite of the fact that Sri. Raghavan was injured. It is alleged against the petitioner that without doing anything in the matter he just went out of the room. These allegations are denied by the petitioner in the O. P. as also in his explanation to the show-cause notices and he has got his own explanation in the matter.
(2.)THE attack on the members of the Legislative Assembly by the mob at the Cochin University Campus caused uproar inside and outside the legislature and it is said in the O. P. that the Govemment denied the allegation of police negligence or police misbehaviour. Respecting the sentiments of the opposition, government ordered an enquiry into the matter and appointed sri. M. S. K. Ramaswamy, Member, Board of Revenue, as one-man commission to report on matters specified in the order of appointment. THE Members of the legislative Assembly also made a demand for referring the mailer regarding the attack on the two members inside the University Campus for an enquiry and action by the Privileges committee of the Legislature. In that discussion sri. B. Raghavan and Sri. S. Sharma who were the victims of the a Hack gave privilege motion notice under R. 156 of the Rules of Business of the Assembly and they made a statement in the Assembly on 8-10-1991 regarding the incident that happened in the Cochin University Campus on 27-9-1991. Ext. P1 is the copy of the statement made by Sri. B. Raghavan and Sri. S. Sharma in the Assembly. On the basis of Exl. P1 statement the Speaker of the Legislative Assembly- 2nd respondent in (his O. P. in exercise of his power under R. 159 of the Rules of Procedure and conduct of Business in the Kerala Legislative Assembly referred the issue for decision by the Privileges Committee of the State Legislature and Ext. P1 (a) is the proceedings of the Speaker in this matter.
Thereafter, the petitioner received Ext. P2 communication dated 11-10-1991 from the Secretary, Kerala Legislature stating that a complaint has been raised by Sri. B. Raghavan M. L. A. in the State legislative Assembly about the conduct of the petitioner. at Cochin University Campus on 27-9-1991. The notice further stated that the conduct of the petitioner establishes a prima facie case of breach of privilege and the matter has been referred to the Privileges Committee as per R. 159 and that if he has any explanation it should be made within 7 days from the date of receipt of ext. P2. On receipt of Ext. P2, the petitioner filed a detailed reply evidenced by Ext. P3 dated 17-10-1991 denying the allegations made against him and also tendering an unconditional apology in case it is felt that he has committed contempt of the House or breach of its privilege. In that explanation he has narrated in detail his version of what happened at the Cochin University Campus on that day and he denied the allegation that he abused the M. L. As. or committed any act which would be a breach of privilege of the Legislature. Thereafter, by Ext. P4 communication dated 24-10-1991 petitioner was informed by the 1st respondent to produce the list of witnesses as the Privileges Committee which met on 24-10-91 had decided to take additional evidence in the matter. In pursuance to that the petitioner gave a list of witnesses to the 1st respondent. Thereafter by Ext. P5 dated 30-10-1991 the petitioner was directed by the 1st respondent to appear before the Privileges Committee on 11-11-1991. Accordingly he appeared before the Privileges Committee and gave evidence and examined witnesses. It is alleged by the petitioner that though the Privileges committee met on few occasions prior to 30-10-1991 and examined witnesses of the complainants in support of the allegation of breach of privilege, petitioner was not given an opportunity to take part in the examination of the witnesses nor was he given an opportunity to cross-examine them. It is stated by the petitioner that he was not even given an opportunity to peruse their depositions. According to the petitioner the entire proceedings of the privilege Committee which took evidence behind the back of the petitioner are in utter disregard of the principles of natural justice. Thereafter, nothing further was informed to the petitioner but he happened to come across a report in a newspaper 'desabhimani' dated 13-2-1993 stating that the Privileges committee of the Legislature found the petitioner guilty of the charge of breach of privilege as alleged by the two members of the Legislative Assembly, sri. B. Raghavan and Sri. S. Sharma. It is further mentioned in the said paper report that the report of the Privilege Committee is placed before the Assembly and in terms of the recommendation of the Privilege Committee the petitioner will be reprimanded in the presence of the two M. L. As. Sri. B. Raghavan and sri. S. Sharma in the Chamber of the Speaker as punishment for breach of privilege. Petitioner has produced copy of the report as Ext. P6. Petitioner is challenging the decision of the 2nd respondent to refer the matter to the Privilege committee and has prayed for a declaration that it is illegal and totally lacking in jurisdiction. He has also prayed for the issuance of a writ of mandamus directing the 2nd respondent not to proceed further with the report of the enquiry submitted by the Privilege Committee pursuant to Ext. P1 (a ). The grounds urged by the petitioner are that the two M. L. As. came to the Cochin university Campus on 27-1-1991 in their capacity as members of the Selection committee for interviewing the candidates for selection to the post of sweeper-cum-cleaner in the University and that it was not in their capacity as m. L. As. that they happened to be present there. It is submitted by the petitioner that under these circumstances there cannot be any case of breach of privilege nor are they entitled to claim any privilege as they came to the university campus only in the capacity as members of the Syndicate and not in the capacity as members of the Assembly. It is contended that in such circumstances there is no question of breach of privilege of the Legislature or members of the Legislative Assembly. It is further contended that under Art. 194 of the Constitution of India privileges and immunities of the members of the legislature are exercisable only in respect of proceedings of a House of legislature or a Committee thereof and not outside the same. It is contended that the action of the 2nd respondent in referring the matter to the Privileges committee itself is in utter disregard of the jurisdiction vested in him and that there is patent lack of jurisdiction for taking any action against the petitioner on the basis of the alleged incident. It is further contended that even assuming that the staternent of the petitioner to the M. L. As. on 27-9-91 as stated by them in the Assembly is correct, it may not amount to disrespect and insolent behaviour towards the two M. L. As. by the petitioner so long as the said statement took place outside the Legislature or any Committee thereof and not during the course of discharge of their legislative function. It is contended by him that the remedy, if any, of the M. L. As. is to resort to the ordinary remedy of a suit or criminal complaint available to a citizen and not to resort to privilege and proceed accordingly. It is further contended by the petitioner that the proceedings of the Privileges Committee in taking evidence behind the back of the petitioner and without giving him an opportunity to cross-examine the witness or even to peruse the depositions made by the witnesses are in flagrant violation of the principles of natural justice.

At my request the Additional Advocate General Sri. Beeran placed the legal position in the matter. It is to be-said that Mr. Beeran was not appearing on behalf of any party but was only assisting the Court at the request by Court.

(3.)AS stated earlier, the two points raised by the counsel for the petitioner against the proceedings taken by the 2nd respondent are that the alleged incident happened outside the State Legislature and that the two M. L. AS. were not discharging any legislative function at the time of the incident but they were only members of the Selection Committee nominated in accordance with the Statutes of the Cochin University . The contention of the petitioner is that they were nominated to the Syndicate of the Cochin University under S. 17 of the Cochin university of Science and Technology Act and they were co-opted to the selection Committee only in that capacity. The case of the petitioner is that in such circumstances there cannot be any breach of the privilege of the legislature or any member thereof. In support of the above contention counsel for the petitioner placed reliance on the following passages from various texts on Parliamentary Privileges: "the privilege against assault or molestation is available to a member only when he is obstructed or in any way molested while discharging his duties as Member of Parliament. In cases when members were assaulted while they were not performing any parliamentary duty it was held that no breach of privilege or contempt of the House had been committed. " "in order to constitute a breach of privilege, however, a libel upon a member of Parliament must concern his character or conduct in his capacity as a member of the House and must be "based on matters arising in the actual transaction of the business of the House". Reflections upon members otherwise than in their capacity as members do not, therefore, involve any breach of privilege or contempt of the House. Similarly, speeches or writings containing vague charges against members or criticising their parliamentary conduct in a strong language particularly in the heat of a public controversy, without, however, imputing any mala fides, are not treated by the House as a contempt or breach of privilege. (Practice and Procedure of Parliament by M. N. Kauland s. 1. Shakdher, Vol. 1 (pages 230, 224) ). "the assault on the members of Parliament does not constitute a breach of privilege or contempt of the House when they are made when the members are not on parliamentary duties. The Privileges Committee dropped several complaints of the member of assaults made on them while they were not on parliamentary duty. For instance, Phool Chand Verma, a member of the Lok Sabha, alleged in the House that he was dragged into a police truck, beaten by the police, and his shirt was torn, and got blood-stained due to injuries received by him, while he was participating in a demonstration at gopalpur, District Dewas, Madhya Pradesh on 13 April 1973 (Phool Chand Verma case, Fifth Lok Sabha, Eighth Report of Privileges Committee, presented on 19 april 1974, pp. 1-6 ). In reply to the enquiry by Privileges Committee, the district Magistrate of Dewas contradicted the allegations of the member and stated that "in the process some scuffle may have taken place in which shri Phool Chand Verma fell down". Although the Committee expressed distress over the incident and observed that the police officers should show proper decency and courtesy while dealing with peaceful demonstrators, particularly members of Parliament, it held that no breach of privilege or contempt of the House was involved in the matter, because at the time of the incident the member was not performing any parliamentary duty. In another case, Niren Ghosh, (Niren Ghosh Case, Rajya sabha, Sixteenth Report of Privileges Committee, presented on 14 May 1975, pp. 1-7) a member of the Rajya Sabha, was assaulted by the police while it arrested him on 2 February, 1974. He brought the matter to the notice of the house and it was referred to the Privileges Committee for examination. On the basis of facts produced before it, the Committee found that the incident had taken place when the member was taking to workers near the Alliance Jute Mills in the Jagatpal area; therefore he was not performing any parliamentary duty at the time of the incident, and the assault on him could not be considered a breach of privilege or contempt of the House. " (Parliamentary Privileges in India by Dr. Ranjana Arora, page 95-96) "in the same way reflections on the conduct of the speaker have been ruled as not constituting breaches of privilege as long as they did not relate to his actions connected with his duties as the Speaker or as a Member of the House. On May 1,1963 (H. C. Debates, Vol. 676, cc. 1071-72) a member drew attention of the House to a passage in the Daily Express under the caption, "heath and Harry go a-wooing", containing the following expression: "the British cabinet in a big "wooing the germans' campaign, has decided to send the Speaker of the House of Commons, sir. Harry Hylton-Foster, on a official visit to Bonn . And Dr. Augen Gersten/naier, the speaker of the Bundestag-Lower House- is to pay a reciprocal official visit to London . . . The exchange fits in with other plans to build up a close Anglo-German association. . . " The Speaker next day ruled as below "i have, naturally, given the most careful consideration to the Hon. Gentleman's complaint. In the light of precedent and other guidance available to me. Having regard to the conclusion which I have reached, I do not think it is desirable that I should pay anything about the article. The conclusion that I have reached is that the Hon. Gentleman's complaint does not raise, prima facie, a case of breach of privilege of this house. . . " It is apparent that the ground on which this publication was not treated as a breach of privilege was that it did not relate to any of his acts in his capacity as the Speaker. On July 18, 1963, a member raised a question of privilege on account of a report in the Sunday Standard to the effect that a garden fete was to be held on the 27th July the proceeds of which were to go the conservative Party and the Speaker of the House of Commons had promised to make a gift on the occasion. The Speaker next day gave the fallowing ruling- "i have considered the complaint raised by the hon'ble Member of Leeds West (Mr. C. Pannell) arising out of an article in wednesday's Evening Standard. Speech or writing which could cast doubt upon the strict impartiality of the Speaker is unquestionably to be regretted, but I cannot find any precedent in any way parallel to this case. " It must be remembered that in ascertaining what constitutes a contempt it is usually necessary for me to collect from the journals some precedent which would give effect to the belief that in some parallel case in the past the House has pronounced that a contempt has been committed. I have now had studied all the cases of speeches and writings reflecting on the character of the Speaker or making accusations of partiality in the discharge of his duty. In every instance, the reflections related to the speaker's conduct in the Chair, to his partiality in the exercise of his duties in the House, or to his prejudicial approach to matters before the House. They all in essence relate to the execution of the Speaker's duties. There is in them nothing resembling the situation in this case when the report is of the person concerned describing her own initiative in a a party matter and only remotely linking the Speaker with the matter in hand by reference not to a fact but to an expectation. My conclusion must be that the matter is not so clearly a contempt of the House as would justify me in finding that it constitutes prima facie a breach of privilege. " Explaining to the House how this report came to be published, he observed ". . . . I must in fairness to all concerned make it plain that the article is accurate in so far as it is based upon a conversation which I had with Mrs. Butler when we were fellow guests on an official occasion from which a fitting and agreeable element of frivolity was not entirely lacking. It is true that I told her that I would let her have a old hat, having failed at that moment- I am sure that the fault is entirely mine-to realise that an element of support for political party funds might be involved. I have contributed no hat. " The aforesaid instances clearly establish that as long as an attack or reflection on a member is clearly not on his actions as a member of the House, it will not be taken as an improper influence on his conduct so as to constitute a breach, of privilege. " (The Law of Parliamentary Privileges in U. K. and in India by P. S. Pachauri, page 126-127 ).
Counsel also contended that the procedure adopted by the Privileges Committee in examining witnesses behind the back of the petitioner and without giving an opportunity to cross-examine or even to peruse the depositions given by the witnesses is against the principles of natural justice. In such circumstances, if the report the Privileges Committee is accepted, it will offend the fundamental right of the petitioner under Arts. 14 and 21 of the Constitution of India and on that ground also the entire proceedings are liable to be quashed. In this connection counsel relied on the following passage from the Law of Parliamentary Privileges in India by V. G. Ramachandran, page 139: "it has to be remembered that the fundamental principle is that all citizens including members of Parliament have to be treated equally in the eye of law. Unless so specified in the Constitution or in any other law a member of Parliament cannot claim any higher privilege than those enjoyed by any other citizen in the matter of application of Laws. " Counsel for the petitioner also relied on the decision of a Full Bench of this Court reported in State of Kerala v. Sudarsan Babu (1983 KLT 764)wherein this Court held as follows: "a petition under Art. 226 of the Constitution of india would be maintainable even against the Legislature of the State as such legislature is within the definition of the term "state' in Art. 12 of the constitution. The freedom of speech in the Legislature of every State is absolute and it is not controlled by Art. 19 (1) (a) of the Constitution. It is unfettered or absolute subject to the limitation in Art. 211 of the constitution, which provision insulates judges of the High Courts and Supreme court acting in the discharge of their duties, against discussion by the legislature. The law made by the legislature under Art. 194 (3) of the constitution defining the powers, privilege and immunities of a House of the legislature, of the members and the Committees of the House of such Legislature cannot contravene fundamental rights. It is open to the court to examine the validity of a plea that such laws are void to the extent they infringe the fundamental rights of the citizens. The rules framed under Art. 208 of the Constitution for regulating the procedure of a House of the Legislature and the conduct of its business are liable to judicial review if there is a case of infringement of the fundamental rights. Till the Legislature frames laws to define powers, privileges and immunities those asserted and recognised in the House of Commons in the United Kingdom as on the 26th January,1950 will be in force. In regard to such powers, privileges and immunities as are mentioned above it cannot be said that whenever there is a conflict between them and the fundamental rights in Part III of the Constitution the latter will yield to the former. An examination may be called for in respect of each of such fundamental rights asserted to determine whether it will survive against such powers, privileges and immunities. The fundamental rights guaranteed under Art. 19 (1) (a) of the constitution will not survive, but fundamental rights secured to citizens under arts. 20 and 21, will survive. The immunity envisaged in Art. 212 (a) of the constitution is restricted to a case where the complaint is no more than that the procedure was irregular. If the impugned proceedings are challenged as illegal or unconstitutional such proceedings would be open to scrutiny in a court of law. It would be futile to contend that a citizen cannot move the High courts or the Supreme Court to invoke their jurisdiction in cases where his fundamental rights have been violated. The existence of judicial power in that behalf must necessarily and inevitably postulate the existence of a right in the citizen to move the court in that behalf. " On the basis of the above legal position the counsel for the petitioner contended that he is entitled to relief against the initiation of proceedings by the 2nd respondent which is totally lacking in jurisdiction.


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