Dr. Jatish Chandra Ghosh vs Hari Sadhan Mukherjee And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 65 of 1958

Decision Date: 16 January 1961

Coram: Bhuvneshwar P. Sinha, S.K. Das, A.K. Sarkar, N. Rajagopala Ayyangar, J.R. Mudholkar

In the matter titled Dr Jatish Chandra Ghosh versus Hari Sadhan Mukherjee and others, the Supreme Court of India delivered its judgment on 16 January 1961. The judgment was authored by Justice Bhuvneshwar P. Sinha, who also presided as Chief Justice, and was delivered by a bench comprising Justices S. K. Das, A. K. Sarkar, N. Rajagopala Ayyangar, J. R. Mudholkar and Justice Bhuvneshwar P. Sinha. The case is reported in the 1961 volume of the All India Reporter at page 613 and in the Supreme Court Reports, third series, at page 486. The questions presented before the Court concerned the powers and privileges of a member of a State Legislature, the publication of questions that had been disallowed by the Speaker, the criminal prosecution for defamation, the claim of immunity under Article 194 of the Constitution of India, and the application of sections 499 and 500 of the Indian Penal Code, 1860.

The appellant, who held the elected office of member of the West Bengal Legislative Assembly, had given formal notice of his intention to introduce certain questions in the Assembly. When the Speaker disallowed those questions, the appellant proceeded to publish them in a periodical titled “Janamat of Ghatal,” a journal circulated in his own constituency of Ghatal. The first respondent, at that time serving as the Sub‑Divisional Magistrate of Ghatal and whose conduct formed part of the subject‑matter of some of the questions, lodged a criminal complaint against the appellant and two other individuals, namely the editor and the printer‑publisher of the journal, invoking sections 500 and 501 of the Indian Penal Code. The appellant pleaded that he was protected by the privilege and immunity guaranteed under Article 194 of the Constitution, arguing that this provision barred any criminal prosecution against him. Both the trial magistrate and subsequently the Calcutta High Court rejected his claim of privilege. On special leave, the appellant appealed, contending that he enjoyed absolute privilege under Article 194 to publish the disallowed questions and therefore could not be prosecuted. The Supreme Court held that the appellant’s claim of immunity must be rejected. It observed that Clause (1) of Article 194 was inapplicable because the matter fell outside the scope of that clause. Clause (2) likewise did not apply, since the publication was not made under the authority of the Legislative Assembly and did not fall within the expression “anything said or any vote given.” The Court further stated that the publication of a disallowed question by a legislator does not fall within the powers, privileges, and immunities enjoyed by a member of the House of Commons, rendering Clause (3) of Article 194 of no assistance. The immunity accorded to members of the House of Commons, the Court explained, is confined strictly to speeches delivered in Parliament and does not extend to the publication of those speeches or debates outside the legislative chamber. Consequently, a member who publishes his speech separately from the official proceedings becomes liable for defamation if the content is indeed defamatory. The Court referred to the authorities of Abingdon’s case (Espinasse’s Reports, Nisi Prius 1793‑1810, page 228) and Creevey’s case (I Maule and Selwyn’s Reports, King’s Bench, 1813‑1817, page 273) in support of this reasoning.

The Court explained that no absolute privilege attaches to the publication of extracts from the proceedings of the House of Commons. While a Member of Parliament enjoys absolute privilege for any speech made inside the House, that protection does not automatically extend to the same words when they are reproduced in the public press. In such a situation the member may rely only upon a qualified privilege, which is subject to the ordinary defenses available in defamation actions. The Court therefore posed the question whether the publication of parliamentary proceedings that has not been authorised by the House should be treated in the same manner as the publication of proceedings of a court of law. The matter was examined in the context of earlier authorities, including the decision in Wason v. Walter (1868‑69) L.R. 4 Q.B. 73, which was referred to, the case of M. S. M. Sharma v. Sri Krishna Sinha [1959] SUPP. 1 S.C.R. 806, which was distinguished, and the decision in Dr. Suresh Chandra Banerjee v. Punit Goala (1951) 55 C.W.N. 745, which was also referred to.

The judgment that follows was delivered in a criminal appeal, Criminal Appeal No. 65 of 1958, filed by special leave against the order dated 11 April 1956 of the Calcutta High Court in Criminal Revision No. 1584 of 1955. The appeal was heard on 16 January 1961, and the opinion was authored by the Chief Justice, Justice Sinha. Counsel for the appellant comprised three members of the bar, while counsel for the respondents comprised two members of the bar. The appeal challenged the High Court’s determination that the appellant’s claim of absolute privilege, grounded on his position as a member of the Bengal Legislative Assembly, could not be sustained, and consequently allowed the prosecution under section 500 of the Indian Penal Code to proceed. The factual background, which was not disputed, was summarised as follows: the appellant was an Indian citizen, elected to the West Bengal Legislative Assembly, and also a practising medical doctor at Ghatal in the Midnapore district. In January 1954 he gave formal notice of his intention to move certain questions before the Assembly. The Assembly’s procedural rules disallowed those questions, and in February 1954 the appellant received notification of the disallowance. Undeterred, he reproduced the disallowed questions in the February 28 1955 issue of a local journal called Janamat. In July 1955 the first respondent, who was then serving as a Sub‑divisional Magistrate and whose conduct formed the subject‑matter of the questions, lodged a criminal complaint against the appellant and against two other individuals identified as the editor and the printer‑publisher of the journal. The complaint alleged that the appellant had made scandalous and false imputations against the respondent, that the statements were published with the intention of reaching the public, and that they were made either with the knowledge of their falsity or with a reason to believe they would damage the respondent’s reputation, thereby causing him grave mental distress and reputational injury.

The complainant explained that, as a Government servant, he was required to obtain formal permission from the Government before initiating any legal action to defend his personal reputation, and that this procedural requirement was the reason for the delay in filing the criminal complaint. The complaint charged the appellant with an offence under section 500 of the Indian Penal Code, and it charged the second and third accused—identified in this proceeding as respondents 2 and 3—with an offence under section 501 of the Indian Penal Code. After the case had been adjourned several times, the appellant raised a preliminary objection to the criminal prosecution, asserting that he enjoyed absolute privilege and immunity from prosecution on the basis of a constitutional provision. The learned Magistrate, by an order dated 12 October 1955, rejected the appellant’s claim of absolute privilege, holding that any privilege that might exist was not unlimited. In reaching that conclusion, the Magistrate relied upon a judgment of the Calcutta High Court in Dr Suresh Chandra Banerjee v. Punit Goala, (1951) 55 C.W.N. 745, to support the view that the appellant was not entitled to the privilege and immunity he sought. Subsequently, the appellant filed an application before the High Court under Article 228 of the Constitution, seeking to have the case withdrawn to that Court for determination of the constitutional question he raised as a defence. The High Court bench dismissed the application on 9 November 1955, apparently on the ground that the matter did not raise any substantial question of law relating to the interpretation of the Constitution.

Undeterred by the High Court’s dismissal, the appellant again approached the High Court and obtained a rule on several grounds, one of which was the contention that the proceedings were barred by the provisions of Article 194 of the Constitution. The learned Single Judge who entertained the matter observed that, strictly speaking, the constitutional question could not be reopened because of the earlier bench decision. Nevertheless, the Judge examined the issues raised by the appellant, including the question arising under Article 194. The Judge dismissed the appellant’s application, holding that a member of the Legislative Assembly did not enjoy absolute privilege in respect of questions that the member sought to ask when those questions had been disallowed by the Speaker and yet were published by the member. The Judge noted that the questions had never actually been asked on the floor of the House and therefore could not be said to form part of the proceedings of the House. Moreover, the Judge concluded that the publication of the questions in the journal, at the appellant’s initiative, could not be regarded as being done under the authority of the House. Finally, the appellant moved the Judge for a certificate under Article 132(1) of the Constitution, but that application was also refused on the ground that the case did not present any substantial question of law for consideration.

After the High Court declined to recognize a claim of privilege, the appellant approached this Court and secured special leave to appeal the earlier judgment. In addition, the appellant obtained an order staying further proceedings in the magistrate’s court. The Court directed that the appeal be heard on an expedited basis, and the order for expedition was issued on 1 October 1956. Despite the directive for a swift hearing, the matter was not placed before the Court until four years later.

In the present proceedings, the appellant contended that the learned judge of the lower court had erred in interpreting Article 194 of the Constitution. According to the appellant’s submission, a proper construction of the article would lead to two conclusions. First, it was asserted that questions a member of a Legislative Assembly wishes to ask, even if the Speaker disallows them, nevertheless form part of the Assembly’s proceedings; consequently, publishing those questions should not fall within the ambit of the Indian Penal Code. Second, the appellant argued that the provisions of Article 194 should be interpreted liberally in favour of elected members who perform public duties not only by speaking and asking questions in the Assembly but also by publishing the material in the press to inform the public and, in particular, the members’ constituencies about the business of the House. In effect, the appellant claimed that an absolute privilege attached to a member, preventing prosecution for publishing questions that had been disallowed by the Speaker.

The Court then examined whether Article 194 supports the appellant’s contentions. The first clause of Article 194 was deemed inapplicable because the case did not raise any issue concerning freedom of speech within a State legislature. Clause 2 of the article, however, contains two distinct provisions. The first part bars any civil or criminal proceedings against a member of a State legislature in respect of anything said or any vote cast by the member in the legislature or any of its committees. The second part provides that no person shall be liable in a civil or criminal proceeding for publishing any report, paper, vote or proceedings that are issued under the authority of the legislature’s house. The appellant did not argue that the publication at issue was made under the authority of the West Bengal Legislative Assembly; therefore, the second part of clause 2 could not be invoked in support of the appellant’s position. The remaining question concerned the first part of clause 2: whether the publication that formed the basis of the prosecution could be characterised as “anything said or any vote given” by a member of the Legislative Assembly. The Court indicated that the answer to this query must be negative.

In response to the question, the Court held that the answer must be negative. Consequently, it was clear that clause (2) of Article 194 offered no aid to the appellant. Because of this, the parties had, during the arguments before this Court, relied upon the provisions of clause (3) of Article 194. The Court then examined whether the publication of a question that had been disallowed by a member of a State Assembly could be regarded as falling within the powers, privileges and immunities enjoyed by members of the House of Commons of the United Kingdom at the time the Constitution came into force. To determine this, the Court referred to the earlier decision in M. S. M. Sharma v. Shri Sri Krishna Sinha, which had examined in detail the privileges relating to the publication of a portion of a speech that the Speaker had ordered to be struck out from the official records of the House. That judgment concluded that publishing such a portion of the proceedings did not fall within the privilege that protects a faithful report of the proceedings of a State Legislature. The Sharma case, however, dealt solely with the powers of an Assembly to punish for contempt of the House and did not involve the country’s criminal statutes; therefore, it did not assist in resolving the present issue. Turning to English law concerning the House of Commons, the Court observed that a member of that House enjoys immunity only for speeches delivered inside Parliament and that the immunity does not extend to publishing the debate outside the House. Accordingly, if a Member of the House of Commons publishes his speech separately from the rest of the official proceedings, he may be liable for defamation should the speech contain defamatory material. The Court then cited the celebrated case of R. v. Lord Abingdon, in which Lord Kenyon held that a speech made in the House of Lords was not privileged when published independently of the rest of the debate. The Court also referred to the sixteenth edition of May’s Parliamentary Practice by Lord Campion, which discusses the two well‑known cases of Abingdon and Creevey. In Abingdon’s case, an information for libel was filed against Lord Abingdon after he accused his attorney of improper professional conduct in a speech delivered in the House of Lords and later printed that speech in several newspapers at his own expense. Lord Abingdon defended himself in the Court of King’s Bench, asserting a right to publish the speech under the law.

In the earlier decision, Lord Kenyon acknowledged that a member of Parliament possessed a clear entitlement to address the House and to publish the words that had been spoken there. However, he emphasized that such a publication could not be used as a means of slandering any individual, and that when the published speech contained defamatory material it amounted to libel. Accordingly, the Court ordered that the member, referred to as “his lordship,” be committed to imprisonment for a period of three months, be required to pay a fine of one hundred pounds, and be placed under a security for good behaviour.

In the subsequent case involving Mr. Creevey, a member of the House of Commons in 1813, the facts were that Mr. Creevey had made an accusation against a private person during a debate in the House. Subsequent newspaper reports presented his remarks inaccurately. To correct the record, Mr. Creevey forwarded an accurate transcript of his speech to the editor of a newspaper and asked that the correct version be printed. An information was then filed against him, and a jury returned a verdict of libel. The King’s Bench declined a request for a new trial, as noted in Lord Ellenborough’s judgment in Rex v. Creevey (2). After being fined one hundred pounds, Mr. Creevey appealed to the House of Commons, alleging that the proceedings of the King’s Bench infringed upon parliamentary privilege; the House, however, refused to accept that its privilege had been violated.

The Court observed that English law concerning the privileges and immunities of the House of Commons does not confer an absolute privilege on the publication of extracts from parliamentary proceedings. A member enjoys absolute privilege for words spoken within the walls of the House, as established in the 1794 case reported in Esp. 226; 170 E.R. 337, and reaffirmed in the 1813 decision cited at 1 M. & S. 273; 195 E.R. 502. Nonetheless, when a member causes his own speech to be published in the public press, only a qualified privilege attaches to that publication. The publication of parliamentary proceedings without the authority of the House is treated in the same manner as the publication of court proceedings. This principle was articulated by Chief Justice Cockburn in Wason v. Walter (1), who explained that the analogy between reports of court proceedings and reports of parliamentary proceedings is complete; therefore, the same limitations designed to prevent injustice to individuals apply to both. A garbled, partial, or detached report published with the intent to harm an individual is likewise denied protection. The Court further noted that until Parliament enacts specific legislation to define the legal position, the privileges, powers, and immunities of a State Legislature or its members remain equivalent to those of the House of Commons as outlined above. In the case presently before the Court, the appellant had sought …

In this case, the Court observed that the appellant attempted to introduce certain questions that related to the conduct of the complainant, who was the first respondent. The Court explained that, under rule 27 of the Assembly Procedural Rules, a question may be admitted only if it satisfies a number of prescribed conditions. Among those conditions, the rule requires that a question must not contain any imputation or imply a charge of a personal character against any individual. The Court further noted that rule 29 of the same procedural framework empowers the Speaker to determine the admissibility of a question by reference to the provisions of the rules, and expressly provides that the Speaker “shall disallow any question when, in his opinion, it is an abuse of the right of questioning, or is in contravention of those provisions.” Having already concluded that no absolute privilege existed – even for a member of the Legislature – in respect of a publication that consists of extracts rather than the entire proceedings (63 (1) (1868) L.R. 4 Q.B. 73, 94), the Court held that it was unnecessary to decide whether disallowed questions could be treated as part of the official proceedings of a legislative house. The Court also pointed out that the present matter involved a criminal defamation prosecution. Defamation offences are governed by sections 499 and 500 of the Indian Penal Code. Section 499 enumerates several exceptions that define what does not constitute defamation. The fourth exception provides that it is not defamation to publish a substantially true report of the proceedings of a court of justice, but the statute does not extend a similar concession to reports of the proceedings of a legislative house or Parliament. The Court acknowledged that a question might arise concerning the applicability of the rule stated in Wason’s case (1) to criminal prosecutions in India; however, because that issue was not raised by counsel, the Court did not address it, noting that it was not necessary for the resolution of the present case. The Court affirmed the well‑settled legal position that, unless the appellant can demonstrate an absolute privilege in his own favour concerning the publication that forms the basis of the charge, the prosecution cannot be set aside. Since the Court had already held, in conformity with the High Court, that the appellant possessed no such absolute privilege, it directed that the appellant must stand trial and present whatever defence he may have. Because the evidentiary record was incomplete, the arguments before the Court were necessarily confined to the legal question of whether an absolute privilege existed. The Court expressly refrained from commenting on the merits of the underlying controversy, which would now be examined by the learned Magistrate who had been dealing with the matter for many years. Consequently, for the reasons set out above, the Court concluded that there was

The judgment recorded that the Court considered the arguments raised by the appellant to be entirely without substance and therefore concluded that the appeal had no merit. On that basis the Court directed that the appeal be dismissed in its entirety. The Court further noted that the criminal prosecution against the respondent had been suspended for an unusually long duration and that this unnecessary delay could no longer be permitted. Accordingly, the Court ordered that the prosecution be resumed immediately and that the trial be conducted without any further avoidable postponement. The Court emphasized that the authorities responsible for managing the case must take all necessary steps to ensure that the proceedings move forward promptly and that no additional deferrals be allowed. In reaffirming this directive, the Court stated that the primary objective was to bring the pending case to a swift conclusion, thereby preventing any further prejudice to the parties involved. The Court made it clear that by dismissing the appeal, no further legal impediment remained to the continuation of the criminal proceeding, and that the parties should therefore prepare for the trial to commence without further hindrance. The expectation articulated by the Court was that the prosecution, which had remained dormant for an extended period, would now be actively pursued, and that the judicial system would avoid any superfluous postponements. As a result of these observations, the appeal was formally dismissed. The order concluded with a citation to a prior authority, identified as (1) (1868) L.R. 4 Q.B, 73.