Decided on July 11,1958

Harendra Nath Barua Appellant
Dev Kanta Barua And Ors. Respondents

Referred Judgements :-


Cited Judgements :-



Sarjoo Prosad, C.J. - (1.)THE Petitioner Sri Harendra Nath Barua has moved this Court for a writ of certiorari, prohibition and/or any other appropriate writ against the Speaker, the Secretary, and the Members of the Committee of Privileges of the Assam Legislative Assembly.
(2.)THE relevant facts as mentioned in his application may be stated. The Petitioner is the Editor of "Natun Assamiya", an Assamese daily newspaper, published from Gauhati. It is claimed that this is the only Assamese daily with a large circulation throughout the State. Sometime in April, 1958, there appeared a news item in the press announcing the decision of the Chief Minister of Assam to undergo a voluntary cut in his salary from Rs. 1,500/ - to Rs. 1,000/ - per month.
At about the same time, there was another news item in the local press, which stated that there was a move by the members of' the Assam Legislative Assembly to raise their salary to Rs. 250/ - per month (excluding allowances), in place of Rs. 150 per month. The Petitioner as the Editor of the daily, wrote an editorial in the issue of his paper of 25 -4 -1958, commenting upon the aforesaid news items under the caption, "Tyag Aru Bhog" (Renunciation or Enjoyment).

The substance of the article was that the move for increase of salary of the members of the Assembly at the present juncture, when the people in general were labouring under economic hardship and distress, was neither fair nor proper and that in this matter the members had not taken the wholesome lead given by their Leader. A copy of this article together with an English translation thereof forms an annexure to the petition.

In the counter -affidavit filed by the Secretary of the Legislative Assembly, there is another English translation of the article, which appears to be somewhat different from the translation supplied by the Petitioner; but that is of no consequence for the purposes of this application, nor does it appear that the difference is so substantial as to deserve any special notice.

The Petitioner claims that the aforesaid article was in the nature of a legitimate and fair comment on a matter of public importance and had not in any manner affected the prestige or dignity of the House or the integrity and character of the members of the said Legislative Assembly in the discharge of their functions in the course of any proceeding pending in the Assembly. The comment, according to the Petitioner, was a bona fide comment made in due discharge of his duties as the Editor of a responsible daily and consistent with the right of freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution.

It appears that the article in question attracted the notice of the Speaker, the Respondent No. 1 to this application, and oft the morning of 28 -4 -1958, he passed an order giving a direction to the Secretary of the Assembly that a messenger from the Secretariat might be sent that noon to Gauhati to summon the Editor and the Printer of "Natun Assamiya" to appear before the Privileges Committee.

According to the Petitioner, this order was immediately followed by a statement made by the Speaker in the Legislative Assembly on the subject, wherein the Speaker informed the House that his attention had been drawn to the editorial concerned. According to the Speaker, the writing prima facie cast reflections on the members of the House, which constituted contempt and breach of privileges of the Hon'ble Members and affected the dignity of the House.

The Speaker, therefore, by virtue of the authority vested in him under the relevant Rules of Procedure and Conduct of Business in the Assam Legislative Assembly, deemed it necessary to refer the matter to the Committee of Privileges, which was directed to submit its report by 30 -4 -1958. The Speaker further informed the House that he thereby directed the Editor and the Printer of the offending daily to appear before the Privileges Committee by 4 -30 P.M. on 29 -4 -1958.

The above facts are not disputed by the Respondents, but there is difference as to the sequence in which the events happened. According to the Respondents, actually the Speaker gave the direction to the Secretary for summoning the Petitioner and the printer of the paper after having made a statement on the floor of the House and after taking the House in confidence. At about 4 P.M. on the afternoon of 28 -4 -1958, the Petitioner received a notice from the Secretary through a messenger of the Secretariat which directed him to appear before the Privileges Committee, as stated earlier, and show cause in explanation or exculpation why the article should not be regarded "as a breach of privilege of the House."

The printer of the paper was also served with a similar notice. The Petitioner then informed the Secretary by a letter sent on that very day that it was not possible for him within that short notice to move to Shillong and adding that he was quite clear in his mind that the article in question had nothing to do with the privileges of the House. It appears that the Committee of Privileges then fixed 6 -6 -1958, for the hearing of the matter, but in the meantime the Petitioner obtained a Rule nisi from this Court and ad interim stay of further proceedings.

It is this Rule which has now come up for final hearing. The Petitioner submits that the order of the Speaker and the consequential steps taken by him or the Committee of Privileges contravened Article 19(1)(a) of the Constitution, inasmuch as they are calculated to stifle the freedom of the press and are thus illegal, inoperative and void. It is argued that the Speaker had no power to summon the Petitioner without a resolution of the House on the subject or without a prior determination of the question of breach of privileges by the Privileges Committee. It is also complained that the steps taken by the Speaker are not sanctioned by the Rules of Procedure and Conduct of Business in the Assam Legislative Assembly and that on the merits of the case, it is stoutly asserted by the Petitioner that the article in question did not constitute any libel of any member or members of the House concerning their conduct and integrity, nor did the article insult or lower the prestige and dignity of the House so as to amount to a breach of its privileges. The questions, therefore, which arise for our determination are:

(1) Whether this Court has any power to interfere with the action taken by the Speaker as the highest functionary of the State Legislative and purporting to do so in protection or vindication of its rights and privileges?;

(2) Whether under the Rules of Procedure and Conduct of Business in the Assam Legislative Assembly, the Speaker and the Secretary of the Legislative Assembly, in the absence of any resolution of the House, had authority to summon the Petitioner to appear before the Privileges Committee?; and

(3) Whether any legal right of the Petitioner has been infringed by the issue of the order in question asking him to appear before the Privileges Committee on a particular date?

(3.)THE first question raises a question of great constitutional importance; and although we would have preferred to rest our decision on the other two narrower questions, in view of the stand taken by Sri P.K. Goswami, the learned Counsel for the Petitioner, and the learned Advocate -General for the Speaker, we feel strongly pressed to express our views on some salient aspects of the matter. At the same time, we acknowledge with gratitude the able assistance which we have received from the learned Counsel of either parties.
To appreciate the extent of the powers, privileges and immunities of State Legislatures and their members and the constitutional limitation imposed on Courts to inquire into proceedings of the Legislatures, a reference to two pertinent provisions of the Constitution is necessary. Article 194 of the Constitution embodies the powers, privileges, etc., of the Houses of Legislatures and of the members and committees thereof.

Clause (3) of that Article, which has a relevant bearing on the subject of discourse, provides that these powers, privileges and immunities.

shall be such as may from time to time be defined by the Legislature by law and until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom and of its members and committees, at the commencement of this Constitution.

Article 212 prohibits the validity of any proceedings in the Legislature of a State from being "called in question on the ground of any alleged irregularity of procedure" and Clause (2) of that Article specifically enjoins that

no officer or member of the Legislature of at State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any Court in respect of the exercise by him of those powers.

The learned Advocate -General has in particular laid stress upon this part of Article 212 and claimed immunity for the impugned act of the Speaker and the Secretary of the Legislative Assembly, in whom powers are vested by or under the Constitution from being subjected to the jurisdiction of this Court in the exercise of those Constitutional powers.

Article 194 of the Constitution, therefore, vouchsafes to the State Legislatures, their members and their committees, in the absence of any legislation on the point, the same powers, privileges and immunities, as those of the House of Commons of the Parliament of the United Kingdom and of its members and committees. The corresponding provisions in respect of the Houses of Parliament of India are to be found under Articles 105 and 122 of the Constitution.

The language of Articles 105 and 194 of the Indian Constitution is substantially identical to that of Section 49 of the Australian Constitution Act, where also it is provided that.

the powers, privileges and immunities, of the Senate and of the House of Representatives, and of the members and the committees of each House shall be such as are declared by the Parliament and until declared, shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.

This similarity in the language of Section 49 of the Australian Constitution is relevant in order to appreciate the decisions cited on the point. At the same time, it is significant to remember that these provisions did not exist in the Government of India Act, 1935; and there the privileges of the Legislature, were far more limited as defined in Section 71 of the Act.

Both sides, therefore, are agreed that we have to look to the precedents of the House of Commons of the Parliament in the United Kingdom and the authorities bearing on them in order to determine the scope and limitations of those powers, privileges and immunities, which flow from the above constitutional provisions. May's "Parliamentary Practice" and several English and Australian decisions have, therefore, been cited at the Bar in support of the respective contention of either side.

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