In The Matter Of: Under Article 143 Of The... vs Unknown

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

Court: Supreme Court of India

Case Number: Special Reference No. 1 of 1964

Decision Date: 30 September, 1964

Coram: P.B. Gajendragadkar, A.K. Sarkar, J.C. Shah, K.N. Wanchoo, M. Hidayatullah, N. Rajagopala Ayyangar

In the matter titled “Under Article 143 Of The … versus Unknown” decided on 30 September 1964, the Supreme Court of India, with the bench composed of P B Gajendragadkar, A K Sarkar, J C Shah, K N Wanchoo, M Hidayatullah and N Rajagopala Ayyangar, rendered a judgment authored by Chief Justice Gajendragadkar. The Court noted that this proceeding arose from Special Reference No 1 of 1964, in which the President, exercising the power conferred by Article 143(1) of the Constitution, formulated five questions for the Court’s opinion. Article 143(1) authorises the President to refer questions of law or fact to the Supreme Court when such questions appear to have arisen, are likely to arise, and are of a nature and public importance that justify obtaining the Court’s opinion. The provision further provides that, upon such a reference, the Court may, after a hearing it deems appropriate, report its opinion to the President. In the Order of Reference dated 26 March 1964, the President expressed the view that the legal questions set out therein were of the requisite nature and public importance, and therefore it was expedient to obtain the Supreme Court’s opinion. The Court then recounted the factual background presented to it. On 14 March 1964, the Speaker of the Legislative Assembly of Uttar Pradesh, acting in the name of and under the authority of the Legislative Assembly—hereinafter referred to as “the House”—issued a reprimand to Keshav Singh, a resident of Gorakhpur. The reprimand was based on Singh’s alleged contempt of the House and a breach of the privileges of Narsingh Narain Pandey, a member of the House. The alleged contempt and breach stemmed from a pamphlet that had been printed and published bearing Singh’s signature together with those of other individuals. Later that same day, the House resolved that Singh should be committed to prison for a further contempt of the House arising from his conduct when summoned to receive the reprimand, and also for having written a disrespectful letter to the Speaker earlier. Accordingly, the Speaker issued a warrant, signed by Speaker Mr Verma, directing that Singh be detained in the District Jail at Lucknow for a period of seven days, and the warrant was executed, resulting in Singh’s detention. Subsequently, on 19 March 1964, an advocate practising before the Lucknow Bench of the Allahabad High Court, identified as Mr B Solomon, filed a petition on behalf of Keshav Singh before the High Court. The petition was filed under section 491 of the Code of Criminal Procedure, 1898, and also invoked Article 226 of the Constitution. The petition named, as respondents, the Speaker of the House, the House itself, the Chief Minister of Uttar Pradesh and the Superintendent of the District Jail, Lucknow, where Singh was serving the sentence imposed by the House.

In this matter, the petition filed on behalf of Keshav Singh named four respondents: the Speaker of the House, the House itself, the Chief Minister of Uttar Pradesh, and the Superintendent of the District Jail at Lucknow where Keshav Singh was serving the sentence imposed by the House. The petition asserted that the detention of Keshav Singh was unlawful on several grounds. It claimed that the order for his imprisonment was issued after a reprimand had already been administered, rendering the imprisonment order unauthorized. The petition further contended that Keshav Singh had not been afforded any opportunity to defend himself, that the detention was made in bad faith, and that it violated the principles of natural justice. Moreover, the petition argued that respondents one through three lacked the authority to commit him to the District Jail, thereby making his confinement illegal. After the petition was lodged before the Lucknow Bench of the Allahabad High Court, counsel for both sides appeared before the learned judges at two o’clock in the afternoon and agreed that the matter should be taken up at three o’clock the same day. Counsel for the petitioner represented Keshav Singh, while counsel for the respondents, an assistant government advocate, appeared on behalf of all four respondents. The petition was indeed taken up at three o’clock. At that hearing, the petitioner’s counsel was present, but the respondents’ counsel was absent. The court subsequently issued an order directing that the petitioner be released on bail upon furnishing two sureties of one thousand rupees each and a personal bond of the same amount, to the satisfaction of the District Magistrate of Lucknow. The Deputy Registrar was instructed to implement the order, and the court required the petitioner to be present at every future hearing. Accordingly, the petition was admitted, notice was ordered to be served on the respondents, and the case was directed to be listed for hearing as soon as possible. This order was pronounced on 19 March at three p.m.

On the following day, 20 March 1964, the government advocate wrote to the secretary of the Government of Uttar Pradesh, Judicial Department, in Lucknow, conveying information about the order passed by the High Court regarding Keshav Singh’s application. In the communication, the government advocate explained that the matter had been mentioned to the court at two p.m. and, at the request of the parties, had been adjourned to three p.m. Shortly thereafter, the respondents’ counsel contacted the secretary by telephone; however, while that conversation was ongoing, the court proceeded at three p.m. and issued the order directing the petitioner’s release on the previously specified terms. The government advocate attached three copies of Keshav Singh’s application to the letter and suggested that an appropriate affidavit be prepared by the persons concerned. The advocate further advised that the application was likely to be listed for hearing at a very early date and recommended that necessary arrangements be made accordingly.

In the same period, the Government Advocate advised Mr. Nigam to prepare a suitable affidavit for the persons concerned and informed him that the application was likely to be listed for hearing at a very early date. Instead of complying with the Government Advocate’s request and directing the filing of a return in the application filed by Keshav Singh, the Legislative Assembly took action against the two learned judges who had passed an order on Keshav Singh’s application, as well as against Keshav Singh and his advocate, on 21 March 1964. It appears that two members of the Assembly brought the matter to the notice of the Speaker before the Court in relation to the application made by Keshav Singh. After taking notice of the order passed by the High Court on Keshav Singh’s petition, the Assembly passed a resolution on 21 March 1964. That resolution stated that the Assembly was of the definite view that M/s. G. D. Sahgal, N. U. Beg, Keshav Singh and B. Solomon had committed contempt of the Assembly and consequently ordered that Keshav Singh should be taken into custody immediately and confined in the District Jail, Lucknow, for the balance of his imprisonment term. The resolution further ordered that M/s. N. U. Beg, G. D. Sahgal and B. Solomon be brought into custody before the Assembly. It added that after Keshav Singh completed his term of imprisonment, he should be brought before the Assembly for having again committed contempt of the Assembly on 19 March 1964. The two learned judges learned of this resolution from a radio broadcast on the evening of 21 March and read about it in the morning edition of the Northern India Patrika published on 22 March 1964. Consequently, they hurried to the Allahabad High Court and filed separate petitions under Article 226 of the Constitution. The petitions alleged that the resolution passed by the Assembly was wholly unconstitutional and violated the provisions of Article 211. The petitions contended that the application made by Keshav Singh under Article 226 was competent and that, in granting an order releasing Keshav Singh, the judges were exercising their jurisdiction and authority as High Court judges under Article 226. The petitions further argued that the resolution of the Assembly amounted to contempt of Court, was entirely without jurisdiction, and therefore should be set aside, with an interim order staying its implementation. The respondents impleaded in the petitions were Mr Verma, the Speaker of the Legislative Assembly, Lucknow, the State of Uttar Pradesh and the Marshal of the Legislative Assembly. These petitions were filed on 23 March 1964. Recognising that these developments raised a very serious problem, a Full Bench of the Allahabad High Court comprising twenty‑eight judges took up the petitions on the same day, directed that the petitions be admitted and ordered the issuance of notices against the respondents, thereby restraining the Speaker from issuing any warrant in pursuance of the Assembly’s direction of 21 March 1964 and from executing any such warrant if already issued, and also restraining the Government of Uttar Pradesh and the Marshal of the Assembly from executing the warrant.

In the proceedings, the Court directed that the warrant which had been issued under the authority of the House on 21 March 1964 should not be executed, and that steps should be taken to prevent the Government of Uttar Pradesh and the Marshal of the House from carrying out any such warrant. Shortly thereafter, on 25 March 1964, the counsel representing Keshav Singh filed another petition before the High Court invoking Article 226. In that petition the counsel sought a writ of mandamus on the same grounds that had been raised by the two High Court judges, and additionally urged that the House be ordered to refrain from actions amounting to contempt of the Court. The petition named seven respondents: the Speaker of the House, Mr Verma; the Uttar Pradesh Legislative Assembly; the Marshal of the Assembly; two members of the Assembly, Mr Saran and Mr Ahmad, who had drawn the House’s attention to the orders issued by the two judges; and finally, the State of Uttar Pradesh. The same full bench of twenty‑eight judges of the Allahabad High Court considered this application on the same day, admitted the petition, and thereafter issued an interim order that barred the implementation of the contested resolution whose validity the petitioner challenged. During the preliminary hearing, notice of the application was served upon the Senior Standing Counsel who was present in the courtroom; he informed the bench that, at that moment, he had received no instructions to oppose the petition, a circumstance that led the judges to issue notice of the application and to adopt the orders they deemed appropriate. On that very day the House responded by adopting a clarificatory resolution. The resolution began by expressing a concern that the earlier motion might be interpreted as depriving the affected individuals of a chance to be heard, and it affirmed that the House did not intend to treat a charge of breach of privilege or contempt against a High Court judge differently from a similar charge against any other person. Consequently, the House resolved that any question of contempt should be decided only after the persons named in the original 20 March 1964 resolution were afforded an opportunity to explain themselves, in accordance with the applicable rules. Following this clarificatory resolution, the warrants that had been issued for the arrest of the two judges and of the counsel for Keshav Singh were withdrawn, and the judges and the counsel were consequently required to appear before the House to present their explanations as to why the House should not proceed with contempt proceedings against them. When these rapid series of events, occurring between 19 March and 25 March 1964, culminated in this state of affairs, the President resolved to act.

The President exercised his constitutional authority to refer the dispute to the Supreme Court under Article 143(1) of the Constitution on 26 March 1964. In the Order of Reference the President observed that the events under consideration had created a serious confrontation between a High Court and a State Legislature. This confrontation, according to the President, raised important and complex questions of law concerning the powers and jurisdiction of the High Court and its judges as they relate to the State Legislature and its officers, and also concerning the powers, privileges and immunities of the State Legislature and its members as they relate to the High Court and its judges while they discharge their duties. The President further expressed that he was convinced that the legal questions enumerated in his Order of Reference were of a nature and of such public significance that it was appropriate to obtain the Supreme Court’s opinion on them. This observation formed the basis of the present reference. The reference set out five specific questions for consideration. The first question asked whether, in the facts and circumstances of the case, the Lucknow Bench of the High Court of Uttar Pradesh, composed of the Honorable Mr Justice N. U. Beg and the Honorable Mr Justice G. D. Sahgal, was competent to entertain and decide the petition filed by Mr Keshav Singh that challenged the legality of the imprisonment imposed on him by the Legislative Assembly of Uttar Pradesh for alleged contempt and infringement of its privileges, and whether that bench could also pass orders granting bail to Mr Singh pending disposal of his petition. The second question sought to determine whether, on the facts and circumstances, Mr Keshav Singh, by causing the petition to be presented on his behalf before the High Court, the advocate Mr B. Soloman, by presenting that petition, and the two Honorable Judges, by entertaining the petition and ordering bail for Mr Singh pending its disposal, had committed contempt of the Legislative Assembly of Uttar Pradesh. The third question examined whether, in the facts and circumstances, the Legislative Assembly of Uttar Pradesh was competent to direct that the two Honorable Judges and Mr B. Soloman be produced before it in custody or to summon them to explain themselves for alleged contempt. The fourth question considered whether, given the facts and circumstances, the Full Bench of the High Court of Uttar Pradesh was competent to entertain and decide the petitions of the two Honorable Judges and Mr B. Soloman, and to pass interim orders restraining the Speaker of the Legislative Assembly of Uttar Pradesh and other respondents from carrying out the Assembly’s direction. The fifth question asked whether a High Court judge who entertains or deals with a petition that challenges any order or decision of a Legislature imposing a penalty on the petitioner, or who issues any process against the petitioner for contempt or infringement of legislative privileges and immunities, commits contempt of that Legislature, and whether the Legislature is competent to initiate proceedings against such a judge in the exercise and enforcement of its powers, privileges and immunities.

The court observed that a judge who issues any process against a petitioner for alleged contempt or for alleged infringement of the Legislature’s privileges and immunities, or who passes any order on such a petition, commits contempt of that Legislature. The court further considered whether the Legislature has the competence to initiate proceedings against such a judge in the exercise and enforcement of its powers, privileges and immunities. At the hearing of the reference, counsel for the Advocate‑General of Bihar raised a preliminary objection. He argued that the reference was invalid under Article 143(1) because the questions presented to the court did not correspond to any entry in List I or List III and therefore could not be said to relate to any power, duty or function conferred on the President by the Constitution. The implication of his argument was that the President could frame questions for an advisory opinion only in matters that fall within the President’s constitutional powers, duties or functions as enumerated in those lists. The court rejected this view as wholly misconceived. It held that the language of Article 143(1) is sufficiently wide to empower the President to refer to the Supreme Court any question of law or fact that has arisen or is likely to arise, provided the President is satisfied that the question is of a nature or of such public importance that obtaining the Court’s opinion is expedient. The court noted that even when questions are referred under Article 143(1), the Supreme Court is not obligated to furnish an advisory opinion in every instance. Article 143(1) states that after receiving the President’s formulated questions, the Court may, after such hearing as it deems appropriate, report its opinion to the President. The use of the word “may” contrasts with the word “shall” found in Article 143(2), illustrating that the Court may, in a particular case, decline to express an advisory opinion if it is satisfied that the nature of the questions or other relevant circumstances warrant such refusal. Article 143(2) deals with instances where the President may refer a dispute to the Court notwithstanding the prohibition in the proviso to Article 131, and it mandates that, after a hearing as the Court thinks fit, the Court shall report its opinion to the President. Thus, for references made under Article 143(2) the Court has a constitutional duty to render a report embodying its advisory opinion, whereas for references under Article 143(1) no such mandatory duty exists. In dealing with the latter class of references, the Court retains discretion as to whether it will provide an advisory opinion.

The Court observed that, unlike references made under Article 143(2), a reference under Article 143(1) does not obligate the Court to issue a report to the President. Nevertheless, the Court may at its discretion decide whether to prepare a report containing its advisory opinion on the question that has been referred. The Court then turned to the objection raised by the counsel who had challenged the reference. It held that the validity of that objection must be examined in the light of the text of Article 143(1) itself. The provisions of Article 143(1) are expressed in terms so wide that it would be impossible to accept the narrow test suggested by the counsel in assessing the validity of the reference. According to Article 143(1), the President must be satisfied that a question of law or fact has arisen, or is likely to arise, and that the question is of a nature and of such public importance that obtaining the Court’s opinion is expedient. If, at first glance, the President’s satisfaction on both of these points exists, the reference is justified, and only when the Court determines that giving an advisory opinion would be inadvisable may it respectfully decline to do so. The Court found no doubt that, in the present matter, questions of fact and law have indeed arisen and that they carry considerable public importance. Accordingly, the Court concluded that the preliminary objection advanced by the counsel lacked any substantive basis.

The Court further noted that the practice of referring questions to this Court since the Constitution came into force in 1950 demonstrates the inappropriateness of applying the narrow test proposed by the counsel when evaluating the competence or validity of a reference. The first Special Reference, numbered 1 of 1951, sought the Court’s advisory opinion on the validity and constitutionality of the material provisions of the Delhi Laws Act, 1912, the Ajmer‑Merwara (Extension of Laws) Act, 1947, and the Part C States (Laws) Act, 1951 (In re : the Delhi Laws Act, 1912, [1951] S.C.R. 747). The second Special Reference, cited as In re : the Kerala Education Bill, 1957 ([1959] S.C.R. 995), was made in 1958 and concerned the validity of certain provisions of the Kerala Education Bill, 1957, which had been passed by the Kerala Legislative Assembly but reserved by the Governor for the President’s consideration. The third Special Reference, recorded as In re : the Berubari Union, was issued in 1959 and invited the Court’s advisory opinion on the validity of the material provisions of an agreement between the Prime Ministers of India and Pakistan, commonly described as the Indo‑Pakistan Agreement. The fourth Special Reference, identified as In re : the Bill to Amend Sea Customs Act, etc., involved the President forwarding for advisory opinion questions relating to the validity of the relevant provisions of a draft Bill intended to amend certain sections of the Sea Customs Act, 1878, and the Central Excises and Salt Act, 1944. These examples illustrate that the references made under Article 143(1) have consistently involved matters of broad constitutional significance, thereby rendering the narrow test advocated by the counsel unsuitable for determining the validity of the present reference.

In this matter, the Court was asked to consider questions concerning the validity of certain provisions contained in a draft Bill that was intended to be introduced in Parliament for the purpose of amending particular sections of the Sea Customs Act, 1878 and the Central Excises and Salt Act, 1944. The Court observed that the questions forwarded by the President followed a uniform pattern and clearly fell within the broad language employed in Article 143 of the Constitution. It was noted that it was unnecessary to stress further that the legal questions presented to the Court on this occasion possessed a very great constitutional significance. The circumstances that gave rise to the Reference presented a difficult problem, and if the developments ordered by the two eminent authorities were not checked, they were likely to produce a serious and complex situation. Consequently, the President concluded that there existed a proper case for seeking an advisory opinion from the Court. He therefore framed five specific questions and transmitted them for the Court’s consideration. Under Article 143(1) the President is empowered to pose for advisory opinion questions of fact and law relating to the validity of existing statutes, to raise questions regarding the validity of provisions proposed in Bills that are to be placed before the legislatures, and also to present questions of constitutional importance such as those presently before the Court. After receiving the Court’s answers, the President may decide whether the Union Government or a State Government should be asked to undertake any appropriate legislative or executive action in line with the Court’s opinion. On this basis, the Court found no difficulty in holding that the present Reference was constitutionally competent.

The Court further explained that when a Reference is received under Article 143(1), it may, for adequate and satisfactory reasons, decline to furnish a report containing answers to the questions framed by the President. Such a refusal could be justified where the questions are purely socio‑economic or political in nature, bear no connection with any constitutional provision, or otherwise lack constitutional significance. The Constitution deliberately uses the word “may” in Article 143(1) to grant the Court the discretion to refuse answering questions under strong and compelling circumstances, distinguishing this from the mandatory language “shall” used in Article 143(2). After careful consideration, the Court concluded that the questions placed before it for advisory opinion were questions of

The Court observed that the questions presented by the President possessed grave constitutional importance and significance, and that the Court had a duty to prepare a report for the President containing its answers to the questions formulated by him. The matter then proceeded to the merits of the controversy disclosed by the President’s reference, which had been elaborately argued before the Court. The Attorney‑General opened the proceedings, stated the relevant facts that gave rise to the reference, and broadly outlined the rival contentions that the House and the High Court intended to raise, as recorded in the statements of the case filed on their behalf. The learned Advocate‑General of Maharashtra, appearing for the House, presented a very learned, impressive and exhaustive argument before the Court. He was followed by several learned counsel who broadly supported the position taken by the House. Subsequently, the learned counsel appearing for the Judges of the Allahabad High Court addressed the Court with a very able argument marked by characteristic brevity and lucidity, and he was in turn followed by several learned counsel who appeared to support the stance taken by the Judges. During the course of the debate, numerous propositions were canvassed and a very large area of constitutional law was covered. The Court therefore clarified at the outset that, in formulating its answers to the questions framed by the President, it would deal only with those points that, in its opinion, had a direct and material bearing on the problems posed by the questions. The Court noted that it is hardly necessary to emphasize that, when dealing with constitutional matters, it should not decide questions that do not strictly arise, and that such caution is especially necessary in a reference made to the Court under Article 143(1). The Court then set out broadly the main contentions urged on behalf of the House and on behalf of the Judges and the Advocate. The Advocate‑General for the House began his arguments by pointing out that, in a reference under Article 143(1), the Court was not exercising its judicial function. He observed that there were no parties before the Court in such a reference and no lis, and therefore the opinion expressed by the Court was advisory. He further contended that, although he appeared before the Court on behalf of the House, the House did not submit to the jurisdiction of the Court with respect to the area of controversy covered by the questions. In other words, he stated that his appearance was without prejudice to his principal contention that the question of the existence and extent of the powers, privileges and immunities of the House, as well as the question of the exercise of those powers and privileges, were entirely and exclusively within the jurisdiction of the House, and that whatever the Court might say would not pre‑empt the House’s authority to determine those matters for itself.

The Court explained that its advisory opinion would not stop the House from deciding the matters referred to it under the present Reference. The Court’s position rested on the observation that the opinion it rendered was advisory in nature and did not constitute a judicial adjudication between parties before the Court. The same view was expressed by counsel for the House when he addressed Article 194 of the Constitution. Article 194(3) concerns the powers, privileges and immunities of the Legislatures as well as those of their Members and Committees. While the Court would later examine the provisions of that Article in detail, it was sufficient at this stage to note that, according to the counsel, the House possessed the exclusive privilege to interpret the relevant provisions of Article 194(3) and to determine for itself the scope of its own powers, privileges and immunities. Consequently, any advisory opinion issued by the Court on questions relating to the existence and extent of those powers and privileges would not prevent the House from independently arriving at its own conclusions, free from the Court’s views.

Having clarified this position concerning the House’s claim to its powers and privileges, counsel further argued that a similar dualism between the judiciary and Parliament had historically existed in England and remained unresolved. He noted that, on several occasions, disputes between the courts and the House of Commons had become intensely bitter, revealing a complete contradiction in the attitudes of the two venerable institutions. The courts asserted a right to decide questions concerning the existence and extent of parliamentary privileges, whereas the Parliament, during the seventeenth, eighteenth and nineteenth centuries, consistently refused to acknowledge any judicial jurisdiction over such matters. Although Parliament admitted that it could not create new privileges, it maintained that it alone was the ultimate judge of existing privileges, unwilling to relinquish its authority to define them, to address their breach, or to punish offenders. Conversely, the courts insisted on reviewing the validity of parliamentary orders on the ground of alleged breach of privilege, and this persistent dualism continued for many years. Counsel argued that the House he represented adhered to the same stance historically adopted by the House of Commons in analogous controversies, leading him to deny the jurisdiction of the Allahabad High Court to consider the issues raised by Keshav Singh in his writ petition. He reasoned that the filing of the petition by Keshav Singh and his counsel amounted to contempt of the House.

In the case, counsel argued that when the learned judges entertained the petition and issued an interim order, they had committed contempt of the House, a position that the House itself maintained and held to be beyond judicial scrutiny in India. He further asserted that the House’s view regarding its exclusive right to determine the propriety of such actions could not be examined by the courts. Alternatively, counsel presented a slightly different line of reasoning, acknowledging that for more than a hundred years in England a substantial settlement had been reached through an implicit understanding between the judiciary and the House of Commons. According to that understanding, the House of Commons now recognized that courts could examine the existence and scope of parliamentary privilege, and also recognized that when the House exercised its power to punish contempt by issuing a “speaking” warrant, the courts were entitled to consider whether the reasons set out in the warrant actually amounted to contempt. To this limited extent, the courts’ jurisdiction was acknowledged, and for the past century, whenever the House sought to justify an order passed for contempt, a return had consistently been filed in the courts for judicial review.

Nevertheless, counsel emphasized that despite this measured agreement, it was settled law that when the House of Commons issued an unspeaking or general warrant to punish a person guilty of contempt, the courts would treat such a general warrant as conclusive and would not examine the validity of the House’s order. Applying this principle to the present matter, he contended that the resolution passed by the House against the two learned judges and against Mr Solomon was a general resolution, and although the warrants against the judges had subsequently been withdrawn, the original decision and the warrants initially issued under that resolution remained general in nature. Consequently, the court could not inquire into the reasons for which those warrants were issued, because the resolution and the associated warrants were conclusive and must be treated as such. The overarching argument, therefore, was that in answering the question posed by the Reference, the court should give effect to the position that had arisen from the implied agreement between the judiciary and the House of Commons, which held that the exclusive right to determine contempt and to decide the adequacy of its punishment belonged solely to the House, and that a general warrant issued under that exclusive power could not be challenged by the courts.

In this case, the Court observed that the House of Parliament could never be required to explain the origin or reasons for an issued warrant, because such explanation forms an essential component of the parliamentary privileges and powers, a component that, according to the House, was incorporated into India through article 194(3) of the Constitution. The Court further held that even if it possessed jurisdiction to determine the scope and effect of article 194(3), it must nevertheless keep in mind that the authority to issue an unspeaking general warrant and to require the judiciary to treat that warrant as conclusive is itself a privilege referenced in the latter part of article 194(3). On this broad basis, counsel for the petitioner urged that the answers to the questions posed by the Reference be framed in accordance with this understanding. Conversely, counsel for the Judges contended that the dualism that once existed in England between the judiciary and the House of Commons should not be imported into the Indian constitutional scheme. He argued that the construction of article 194(3) falls squarely within the exclusive jurisdiction of this Court and the High Courts, and that the interpretation that these Courts assign to the relevant language will ultimately define the extent and character of the privileges in question. According to this counsel, article 194(3) cannot be read in isolation; it must be read in its broader context, alongside other pivotal constitutional provisions such as articles 32, 211 and 226. When viewed in that context, there appears to be no room for any antinomy, conflict or dualism between the powers of the High Court and those of the House concerning the matters that have given rise to the present reference. He further maintained that it would be unreasonable for the House to adopt the historical stance of the English House of Commons in the seventeenth, eighteenth and nineteenth centuries, when conflicts with the judiciary arose. For more than a hundred years, the English Commons has not claimed that a citizen punished by the House for alleged contempt would incur a further contempt by seeking habeas‑corpus relief from the courts, nor has it pursued lawyers filing such applications or judges entertaining them. Accordingly, the counsel argued that the present dispute should be resolved on the basis of the long‑standing convention that has evolved by mutual agreement between the two august institutions of the judiciary and the legislature. He acknowledged that English courts recognise a convention whereby a general or unspeaking warrant issued by the House is usually treated as conclusive, but stressed that this convention arises from historical comity rather than from an intrinsic privilege of the House, and that such a historical assumption cannot be imported into the present proceedings. Moreover, when addressing the effect of a general warrant, the Court cannot disregard the significance of articles 32, 211 and 226 of the Constitution.

Mr Setalvad observed that English courts recognise a convention whereby a general or unspeaking warrant issued by the House of Commons is normally treated as conclusive. He emphasized that this treatment arises from convention or comity rather than being an essential component of the House’s privilege. The origin of the convention lies in the historical role of the English Parliament, which at one time functioned as the highest court of justice; consequently the House of Commons acquired the status of a superior Court of Record. Mr Setalvad argued that such historical assumptions cannot be transferred to the present case involving the House in question. He further noted that, in determining the effect of a general warrant, the Court must not disregard the importance of Articles 32, 211 and 226 of the Constitution. On the basis of these constitutional provisions, he maintained that the Constitution has settled the problem of dualism in India by granting the High Courts and the Supreme Court the power to entertain claims of citizens whose fundamental rights have been infringed. Accordingly, an application for habeas corpus may be filed before either the High Court or the Supreme Court to test the validity of any order issued by any authority, including the legislature. This position, he submitted, inevitably leads to the conclusion that a general or unspeaking warrant cannot claim the privilege of being conclusive, because the courts retain jurisdiction to examine its legality.

The central dispute, as framed by the five questions posed by the President, was confined to a very narrow scope. The questions asked whether the House alone could determine if contempt had been committed outside its four walls, whether the House alone could decide the punishment to be imposed on a person found guilty of contempt, and whether the High Court could entertain a habeas corpus petition challenging the validity of a detention resulting from a general or unspeaking warrant issued by the House. Counsel for the House, Mr Seervai, contended that the High Court possessed no jurisdiction to scrutinise a general warrant. He asserted that the High Court had acted unlawfully and without jurisdiction when it entertained the petition and ordered the release of Keshav Singh on bail without first examining the warrant, even before the respondents had filed a return. Consequently, he claimed that the High Court judges, the counsel, and the party seeking release were all in contempt of the House.

In the present proceedings, counsel for the House contended that the High Court possessed no authority to grant interim bail in habeas corpus actions of this nature. The opposing counsel, however, did not seriously dispute the proposition that the House retained the power to investigate whether contempt had been committed by any individual, even if that individual was located outside the physical confines of the House, and that the House also possessed the power to impose punishment for such contempt. The opposing counsel argued, nevertheless, that when the Constitution’s material provisions were considered, the House could not assert that a general warrant issued by it should be deemed conclusive in every circumstance. Accordingly, it was submitted that whenever a person had been sentenced by the House for contempt and subsequently detained, that person remained entitled to approach the High Court for appropriate relief under Article 226 of the Constitution. The High Court, according to this submission, was authorised to examine the merits of the petitioner’s contentions even if the warrant describing the detention was general or unspeaking. Counsel for the House further maintained that, because the High Court held jurisdiction to entertain a writ of habeas corpus under Article 226, it likewise possessed the power to order interim bail. Consequently, the core of the dispute centred on whether the High Court could entertain a habeas corpus petition and grant interim bail when the House had issued a general or speaking warrant directing the detention of a party for contempt. The Court observed that although the ultimate answer to the questions presented lay within a relatively narrow field, it was necessary to consider several broader aspects of the problem that arose incidentally, as resolution of those aspects would aid in answering the reference questions. The entire issue had to be examined in the light of the provisions contained in Article 194(3) of the Constitution, making the interpretation of that clause the pivotal point of the analysis. At this juncture, it was essential to read Article 194 in its entirety. Article 194 states: “(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State. (2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes, or proceedings. (3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature 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”. This textual framework formed the basis for determining the extent of the High Court’s jurisdiction in the matters before it.

Clause (4) of Article 194 stated that the provisions contained in clauses (1), (2) and (3) were to apply to any person who, by virtue of this Constitution, possessed the right to speak in, and otherwise take part in, the proceedings of a State Legislature or any of its committees, in the same way that those provisions applied to members of the Parliament of the United Kingdom and to its members and committees at the commencement of this Constitution. The Court observed that the first three material clauses of Article 194 each dealt with a distinct subject. Clause (1) expressly declared that the freedom of speech enjoyed by members of every State Legislature was subject to two limits: first, the provisions of the Constitution itself, and second, the rules and standing orders that regulated the procedure of the Legislature. While interpreting this clause, the Court stressed that the constitutional provisions referred to were not the general provisions of the Constitution but only those provisions that related to the regulation of legislative procedure. The Court noted that the rules and standing orders could regulate legislative procedure and that certain constitutional provisions, such as Articles 208 and 211, also dealt with procedural regulation. Consequently, the adjectival phrase “regulating the procedure of the Legislature” qualified both the reference to “the provisions of the Constitution” and the reference to “the rules and standing orders.” The Court concluded that clause (1) therefore granted legislators a specific right of freedom of speech, but that right was limited by the procedural constraints mentioned in its first part. The Court further reasoned that by limiting the clause to the specified procedural provisions of the Constitution, the framers intended to provide legislators with a freedom of speech that was distinct and, in a sense, independent of the general freedom of speech and expression guaranteed by Article 19(1)(a). If the only freedom available to legislators had been the general right under Article 19(1)(a), there would have been no need to articulate the same right again in the specific terms of Article 194(1). Hence, the Court found it appropriate to conclude that Article 19(1)(a) was not one of the constitutional provisions controlling the first part of clause (1) of Article 194.

Clause (2) of Article 194, according to the Court, emphasized that the freedom of speech granted to legislators was intended to be absolute and without restriction. The same absolute protection extended to the votes cast by legislators in the Legislature or any of its committees. The Court explained that even if a legislator exercised his freedom of speech in a manner that violated a procedural rule such as Article 211, the legislator would not be liable to any court action. In a similar vein, if a legislator’s speech or vote was alleged to have infringed any of the fundamental rights enumerated in Part III of the Constitution within the Legislative Assembly, the legislator would not be answerable to any court for that alleged contravention.

For a legislator who commits such a contravention, the Constitution provides that no civil or criminal action may be instituted against him in any court. If the impugned speech amounts to libel or otherwise becomes actionable or indictable under any other statutory provision, the clause nevertheless confers immunity on the legislator from any judicial proceeding. The legislator, however, may still be held accountable to the legislative House for that speech, and the Speaker of the House may take appropriate disciplinary action against him; this aspect falls outside the scope of judicial immunity. The Court observed that the framers of the Constitution placed great importance on ensuring absolute freedom of debate within legislative chambers. Accordingly, they deemed it necessary to grant legislators complete immunity from any court action concerning speeches delivered in the chambers, using the broad language set out in clause (2). In effect, clause (1) grants legislators the right to speak freely within the legislative chamber, while clause (2) makes clear that this freedom is intended to be literal, absolute, and without restriction.

Turning to clause (3), the first part of the provision empowers the legislatures of the States to enact laws that define their own powers, privileges, and immunities. The latter part of the clause provides that, until such State laws are enacted, each State legislature shall enjoy the same powers, privileges, and immunities that the House of Commons possessed at the commencement of the Constitution. The Constitution‑makers appear to have anticipated that State legislatures would require a period of time before they could frame comprehensive statutes concerning their own powers, privileges, and immunities. During that interim, it was essential to vest them with the necessary powers, privileges, and immunities to enable their effective functioning. The Court noted that the powers, privileges, and immunities contemplated by clause (3) are essentially incidental rights that every legislature must possess in order to operate efficiently, which explains why the latter portion of clause (3) supplies a temporary safeguard.

Clause (3) also imposes a requirement that any power, privilege, or immunity claimed by a legislature must be shown to have existed at the moment the Constitution came into force, namely 26 January 1950. The Court recalled that, historically, the House of Commons had asserted a large number of privileges and powers during its protracted struggle for recognition. Over time, some of those privileges were voluntarily surrendered, while others lapsed through desuetude. Consequently, whenever a legislature claims a particular privilege, it is necessary to investigate whether that privilege was in actual existence at the relevant historical moment. Moreover, the claimed privilege must not only have been asserted by the House of Commons but also must have been recognised by the English courts. The Court rejected the notion that a privilege could be upheld merely because the House of Commons claimed it, if the English courts never acknowledged it. In other words, the inquiry mandated by the Constitution requires a factual demonstration that the power, privilege, or immunity was both claimed by the House of Commons and legally recognised at the Constitution’s commencement.

In this part of the judgment, the Court explained that the inquiry under the relevant clause required a determination of whether the power in question had been shown or proved to have existed in the House of Commons at the relevant time. The Court then noted that clause (4) extended the provision set out in the three preceding clauses to certain persons described therein. The Court observed that all four clauses of Article 194 were not expressed as being subject to the provisions contained in Part III of the Constitution. In particular, clause (2) was framed in very broad terms, so that when legislators exercised the rights granted by clause (1), even if their speeches contravened any of the fundamental rights guaranteed by Part III, they would not be liable to any suit in any court. The Court added, however, that for other valid reasons it might appear that the substance of clause (3) did not exclude the applicability of certain relevant constitutional provisions, and it would therefore be unreasonable to suggest that those provisions should be ignored merely because clause (3) did not begin with the words “subject to the other provisions of the Constitution.” The Court further explained that whenever a conflict seemed to arise between the provisions of clause (3) of Article 194 and the provisions relating to fundamental rights, the conflict should be resolved by applying the rule of harmonious construction. The Court stated that it would consider the consequences of applying that rule at a later stage, and it would refer to the decision of this Court in Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha & Others ([1959] Supp. 1 S.C.R. 806). The Court then turned to the implications of the first part of clause (3). It posed the question whether a law made by a State Legislature that prescribed its powers, privileges and immunities would be subject to Article 13. The Court recalled that Article 13 declared that any law inconsistent with or in derogation of the fundamental rights would be void. Clause (1) of Article 13 referred to laws in force in the territory of India immediately before the commencement of the Constitution, while clause (2) referred to laws that the State might make in the future. The Court observed that, on its face, a law made by a State Legislature under the authority conferred by clause (2) of Article 13 would be void if it contravened or abridged the fundamental rights guaranteed by Part III. The Court indicated that this principle was affirmed by the decision in Pandit Sharma’s case. Finally, the Court cautioned that it should not be assumed as settled that a law enacted under the purported exercise of the power conferred by the first part of clause (3) would automatically have to satisfy the test prescribed.

In this case, the Court observed that the Constitution guarantees fundamental rights, and therefore it must be examined whether the framers intended the limitations imposed by those rights to be disregarded when interpreting the latter portion of clause (3) that allows a State Legislature to prescribe its powers, privileges and immunities. The Court noted that the same question could be framed differently: if any of the powers, privileges or immunities claimed by the House conflict with the Constitution‑guaranteed fundamental rights, the Court must decide how such a conflict should be resolved. It further asked whether the Constitution intended to elevate the powers, privileges and immunities mentioned in the second part of clause (3) above the law that a State Legislature might later enact under that authority. The Court explained that, for the purpose of construing clause (3), the reference in its first part to future laws that must comply with fundamental rights may be significant for interpreting the second part of the same clause. The Court summarized that this interpretation reflects the position expressed in the first three substantive provisions of Article 194. The next issue before the Court arose from a preliminary contention raised by counsel for the House, who argued that by appearing on behalf of the House the House had not consented to the Court’s jurisdiction to interpret Article 194(3) in a manner that would bind it. Counsel for the House maintained that, with respect to privileges, the House alone acted as the exclusive judge at every stage. The Court acknowledged that, technically, the advisory opinion it gave in response to the President’s Reference might not constitute a formal judicial adjudication, and because no formal parties were before the Court in that Reference, its answers might not be binding on anyone. Nonetheless, the Court stated that beyond this technical point, it was necessary to determine whether, even concerning privileges, the Constitution granted the House the sole and exclusive jurisdiction claimed by counsel for the House. The Court observed that it is undisputed that the powers in question must be found in Article 194(3), which is the sole source of those powers, and that no power not expressly included in that provision can be claimed by the House. Consequently, at the very outset of its analysis, the Court affirmed that it must resolve this foundational question. In addressing this question, the Court emphasized a fundamental feature of a federal constitution: unlike the doctrine of Parliamentary sovereignty in England, where Parliament may make or unmake any law and no body can override it, a federal system distributes limited executive, legislative and judicial authority among co‑ordinate bodies that are independent of one another.

The Court explained that, under the doctrine of parliamentary sovereignty as described by Dicey, the right to override or set aside the legislation of Parliament belongs exclusively to Parliament, and that such right or power extends to every part of the Queen’s dominions. By contrast, the essential characteristic of federalism is the distribution of limited executive, legislative and judicial authority among bodies that are co‑ordinate and independent of each other. The supremacy of the Constitution is therefore fundamental to the existence of a federal State because it prevents either the legislature of the federal unit or the legislatures of the member States from destroying or impairing the delicate balance of power that satisfies the particular requirements of States that desire union but are not prepared to surrender their individuality. This constitutional supremacy is protected by an independent judicial body that acts as the interpreter of the scheme of distribution of powers. Moreover, the Constitution cannot be altered by the ordinary process of federal or State legislation, as noted in the cited authority. Consequently, the dominant characteristic of the British Constitution, namely absolute parliamentary sovereignty, cannot be claimed by a federal Constitution such as that of India.

The Court further observed that the legislatures of the Union and the States unquestionably possess plenary powers, but those powers are circumscribed by the basic concepts of the written Constitution and may be exercised only within the legislative fields allocated to them by the three Lists in the Seventh Schedule. Legislatures cannot act beyond those Lists. While they may legitimately exercise their plenary legislative authority by virtue of the powers conferred on them by the relevant constitutional provisions, the source of that authority is the Constitution itself. In addition, the legislative supremacy of the Parliament and the State legislatures is ordinarily regulated by the provisions contained in Part III of the Constitution. If a legislature steps beyond the fields assigned to it, or if it intrudes upon fundamental rights of citizens in a manner not justified by the relevant article, its actions are liable to be struck down by the courts. Hence, although the legislatures have plenary powers, they must operate within the limits prescribed by the material and relevant provisions of the Constitution. The Court also noted that, in a democratic country governed by a written Constitution, the Constitution is supreme and sovereign. The Constitution may be amended by Parliament, but such amendment is possible only because Article 368 provides a specific procedure for amendment, and any amendment must follow that procedure. This demonstrates that even when Parliament seeks to amend the Constitution, it must comply with the Constitution’s own mandate. Legislators, ministers and judges all take an oath of allegiance to the Constitution, because it is the Constitution that confers their authority and to which they owe their allegiance.

The Court observed that all officers of the State obtain their authority and jurisdiction from the constitutional provisions, and that they owe their allegiance to those same provisions; consequently, the absolute sovereignty that the Parliament of England may claim cannot be asserted by any Indian legislature in a literal, unlimited sense. The Court further explained that, although the Indian Constitution may not impose a rigid, formal separation of powers, it undeniably entrusts the nation’s Judicature with the responsibility of interpreting constitutional provisions and safeguarding the fundamental rights of the citizens. Accordingly, whenever a statute is challenged on the basis that it was enacted without proper legislative authority or that it unlawfully infringes upon fundamental rights, the question of the statute’s validity is to be decided by the courts, not by the legislature that passed it. In the same manner that the legislatures are vested with legislative functions, the executive is vested with executive functions, and the judiciary is vested with adjudicative functions, the jurisdiction and authority of this country’s courts are confined to the domain of adjudication. When the validity of any law is brought before a court, the Court emphasized that it is never appropriate to allow the legislature itself to determine whether its own authority has been exceeded or whether fundamental rights have been violated; such material questions are exclusively the province of the judiciary. Accordingly, the Court found no difficulty in holding that the construction of Article 194(3) must rest solely with the nation’s courts, and therefore rejected the submission advanced by Mr Seervai that the determination of the nature, scope and effect of the powers of the House does not lie exclusively within this Court’s jurisdiction. While the Court affirmed that the advisory opinion issued in the present reference proceedings does not constitute a proper adjudication and therefore binds no parties, this clarification does not affect the earlier conclusion regarding judicial exclusive jurisdiction over the matter. In reaching the conclusion that the content of Article 194(3) must ultimately be determined by the courts rather than by the legislatures, the Court was mindful of the grandeur and majesty of the task assigned to the legislatures by the Constitution. The Court noted that all legislative chambers in the country are actively engaged in pursuing the constitutional ideal of a welfare State, a role that naturally accords them a distinguished place in the nation’s contemporary history. Likewise, the High Courts are required to play an equally important role in the development of the rule of law, and there can be little doubt that the effective functioning of the rule of law constitutes the basic foundation of the democratic way of life. In this

The Court observed that the prestige, dignity and significance of the Legislature and the Judicature are primarily derived from the constitutional mandates that assign specific responsibilities to each body. It further explained that the Executive, which forms the third essential component of a democratic State, must also respect its constitutionally defined role. The Court emphasized that these three institutions should not operate in opposition or hostility toward one another. Rather, they must function rationally, cooperatively and with mutual understanding within the limits of their respective jurisdictions. According to the Court, such harmonious interaction among the Legislature, the Judicature and the Executive is essential for the peaceful development, steady growth and long‑term stability of the democratic way of life in the country. The Court therefore underscored that the constitutional framework intends for the three branches to complement each other, each contributing to the overall governance while preserving their distinct constitutional functions.

When a dispute arises between the House of Parliament and a High Court, the Court stated that it must be examined with complete objectivity and detachment. The Court warned against allowing emotion or strong language to influence the discussion, insisting that the matter should be approached calmly and without prejudice. Although the reference presented difficult questions concerning the jurisdiction, dignity and independence of two eminent constitutional bodies, the Court affirmed its commitment to seek the best possible answers. In keeping with the detached and objective character that defines judicial inquiry, the Court declared that it would render its advisory opinion based solely on legal reasoning. The Court also noted that if the position advocated by counsel for the High Court proved to be incorrect, the Court would not hesitate to reject it. Conversely, if the contention presented on behalf of the House of Parliament proved untenable, the Court would likewise deliver a contrary verdict. Throughout this process, the Court insisted on performing its duties without fear, favour, affection or ill‑will, while remaining fully conscious of its solemn obligation to uphold the Constitution and the law.

The Court recalled that Article 194(3) of the Constitution contains two distinct provisions. The first provision empowers Parliament to define, by legislation, its own powers, privileges and immunities at any time. The second provision provides that, until Parliament chooses to define such powers, its powers, privileges and immunities are deemed to be those of the House of Commons of the United Kingdom Parliament and of its members and committees, as they existed at the commencement of the Constitution. Counsel for the petitioner argued that the second part of Article 194(3) expressly transfers to the House of Parliament all powers that were vested in the House of Commons at the relevant historical moment. The Court, however, held that this broad interpretation could not be accepted in its entirety, because certain powers historically enjoyed by the House of Commons are not capable of being claimed by the Indian House of Parliament.

In this discussion, the Court observed that there are certain powers that the House of Commons could not realistically claim as its own privileges. The Court illustrated this point by citing the privilege of freedom of access, which the House of Commons exercises through its Speaker to “at all times have the right to petition, counsel, or remonstrate with their Sovereign through their chosen representative and to have a favourable construction placed on his words.” This privilege is recorded in Sir T. Erskine May’s Parliamentary Practice, sixteenth edition, page 86, and was regarded by the Commons as a fundamental privilege. The Court noted that it is unnecessary to argue that the House can claim this particular privilege, because it clearly does not. In the same vein, the Court stated that the privileges of passing an act of attainder and of carrying out an impeachment also cannot be asserted by the House. The Court further examined the privileges the House of Commons claims in relation to its own Constitution. Those privileges are expressed in three distinct ways: first, the power to issue new writs to fill vacancies that arise in the Commons during a Parliament; second, the authority to try contested elections; and third, the capacity to determine the qualification of its members when doubts arise, as discussed on page 175 of the same source. The Court acknowledged that even these constitutional‑related privileges cannot be claimed by the House. Consequently, the Court concluded that it would be incorrect to assert that every power and privilege possessed by the House of Commons at the relevant historical moment may be claimed by the present House.

The Court then turned to the task of interpreting Article 194(3) in light of the Court’s earlier decision in Pandit Sharma’s case, reported in the Supplement to the Supreme Court Reports, 1959, page 806. The Court recalled the essential findings of the majority opinion in that case. In the earlier matter, the editor of the English daily newspaper Search Light of Patna had been summoned by the Secretary of the Patna Legislative Assembly to appear before the Committee of Privileges and to show cause why disciplinary action should not be taken against him. The alleged breach involved the editor’s publication of the full speech delivered in the Assembly by a member, including portions that the Speaker had ordered to be expunged. The editor, invoking Article 32 of the Constitution, contended that the notice and the proposed action of the Committee violated his fundamental right to freedom of speech and expression under Article 19(1)(a) and also infringed upon the personal liberty guaranteed by Article 21. On these grounds, the editor challenged the validity of the notice. The House defended its position by relying on Article 194(3). Two principal questions emerged: whether the privilege claimed by the House was a subsisting privilege in England at the relevant time, and what effect Articles 19(1)(a) and 21 would have on the provisions contained in the latter part of Article 194(3). The majority held that the privilege in question …

The Court held that the privilege in question existed at the relevant time and therefore had to be treated as part of the latter portion of Article 194(3). The Court further concluded that Article 19(1)(a) did not apply because, under the rule of harmonious construction, when Article 19(1)(a) directly conflicted with Article 194(3), the specific provision in Article 194(3) prevailed over the general provision in Article 19(1)(a). The Court also observed that although Article 21 was applicable, it had not been infringed. 47. The minority view, however, maintained that the privilege had not been established as a fact. The minority added that, assuming the privilege did exist and was therefore covered by the latter part of Article 194(3), it must be governed by Article 19(1)(a) and by Part III of the Constitution, which were of paramount importance and should prevail over any provision in Article 194(3) that might be inconsistent with them. 48. At this point, the Court summarized the principal points decided by both the majority and the minority. The petitioner argued that, although Article 194(3) had not been expressly made subject to the Constitution, this did not automatically exclude it from constitutional control, and that the various clauses of Article 194 should not be regarded as separate and independent but should be subject to the constitutional provisions, including Article 19(1)(a). Both the majority and the minority rejected this argument. 49. The petitioner next contended that Article 194(1) effectively limited the fundamental right to freedom of speech guaranteed by Article 19(1)(a) when that right was exercised in State Legislatures, whereas Article 194(3) did not claim to be an exception to Article 19(1)(a). The majority rejected this contention, stating that clause (1) of Article 194 indeed makes its substantive provisions subject to the Constitution, but that the Constitution does not incorporate Article 19(1)(a) in that context because Article 19(1)(a) does not regulate legislative procedure; only those constitutional provisions that govern legislative procedure fall within the first part of Article 194(1). 50. The petitioner further argued that Article 19 expressed a transcendental principle that should dominate the provisions of Article 194(3), especially since the latter were of a transitory nature. The majority again rejected this reasoning, while the minority upheld it. 51. The petitioner’s fourth argument was that any law enacted by the legislature defining its powers, privileges and immunities would be subject to Article 13 of the Constitution and would become void to the extent that it violated the fundamental rights enshrined in Part III.

The Court noted that the argument that a law could be declared void to the extent it violated the fundamental rights protected in Part III of the Constitution had been accepted by both the majority and the minority opinions. The Court then turned to a further point concerning observations made in an earlier decision of this Court, Gunupati Keshavram Reddy v. Nafisul Hasan and the State of U.P. The majority judgment in the present case commented on that earlier decision, observing that the earlier judgment had been based entirely on a concession and therefore could not be regarded as a considered decision of the Court. The Court explained that the earlier decision had examined the applicability of Article 22(2) to a situation falling within the latter part of Article 194(3). By contrast, the minority opinion in the present case treated the earlier decision as a considered and binding precedent of this Court. The Court added that the majority view in the present case held that Article 21 was applicable, but, after examining the merits, concluded that the alleged violation of Article 21 had not been established. The minority view, however, found it unnecessary to decide whether Article 21 applied at all, because it treated every fundamental right guaranteed by Part III as paramount, meaning each such right would control the provisions of Article 194(3).

The Court further observed that, in the earlier case of Pandit Sharma ([1959] Supp. 1 S.C.R. 806), the petitioner had raised only the specific contention that Articles 19(1)(a) and 21 were infringed, and had not raised a general issue concerning the relevance or applicability of all fundamental rights in Part III. Consequently, it was unnecessary for the Court to address a broader question of whether the latter part of Article 194(3) was generally subject to the entire body of fundamental rights. Even under the majority view, the Court could not say that the judgment excluded the application of all fundamental rights, because Article 21 was expressly held to be applicable and the petitioner's alleged breach of that right had been examined and rejected on its merits. Accordingly, the Court declined to read the majority judgment as establishing a sweeping rule that, whenever a conflict arose between the provisions of the latter part of Article 194(3) and any fundamental right in Part III, the latter part would always defeat the former. Instead, the Court concluded that the majority decision settled the specific point that Article 19(1)(a) did not apply, whereas Article 21 did. Having reached this conclusion, the majority judgment also referred incidentally to the Gunupati Keshavram Reddy case. While there was no dispute about the applicability of Article 22 in that case, the Court respectfully noted that the earlier comment by the majority judgment regarding that decision was partly inaccurate.

In that earlier case, a Constitution Bench of the Supreme Court examined the detention of Mr Mistry, which had been ordered by the Speaker of the Uttar Pradesh Legislative Assembly on the ground that Mr Mistry had breached the privilege of that Assembly. The validity of the detention was contested on the basis that it violated Article 22(2) of the Constitution. The factual allegations supporting the petition were expressly admitted by the Attorney‑General, and on the basis of those admitted facts the Court concluded that Mr Mistry’s detention was plainly invalid. Referring to this earlier decision, the majority judgment observed that the decision “proceeded entirely on a concession of counsel and cannot be regarded as a considered opinion on the subject.” The Court noted that the first part of this observation was inaccurate because the concession made by the Attorney‑General concerned a factual issue rather than a legal question that the Court had decided, and therefore the statement could not be strictly justified. The Court further acknowledged that the majority judgment was correct in noting that there was no substantive discussion of the merits of the contention raised on behalf of Mr Mistry, and consequently it might have been permissible for the majority to describe the earlier decision as not representing a considered opinion of the Court. However, the Court also pointed out that it was hardly necessary for the majority judgment to address the applicability of Article 22(2), since that point had not arisen in the proceedings before the Court in Pandit Sharma’s case (1959 Supp. 1 S.C.R. 806). Accordingly, the Court clarified that the obiter observations made in the majority judgment concerning the validity or correctness of the earlier decision in Gunupati Keshavram Reddy’s case should not be read as a definitive ruling on that issue. In other words, the question of whether Article 22(2) would apply to such a situation may have to be considered by this Court only if it becomes necessary in a future case. Before concluding the discussion of Pandit Sharma’s case, the Court turned to another point. It had already observed that the majority decision accepted the contention that any power, privilege or immunity prescribed by a State legislature under the first part of Article 194(3) would be subject to Article 13. Mr Seervai attempted to challenge that conclusion, arguing that the power conferred on legislatures by the first part of Article 194(3) is a constitutional power and therefore any law made pursuant to that power would lie outside the scope of Article 13. The Court was unable to accept Mr Seervai’s submission. While it acknowledged that the power to enact such a law is indeed conferred on legislatures by the first part of Article 194(3), the Court affirmed that when State legislatures exercise that power they do so under Article 246 read with Entry 39 of List II, and such enactments cannot be characterised as exercises of constituent power; consequently, they fall within the definition of a law for the purposes of Article 13.

In the present discussion, the Court observed that when a State Legislature claims to exercise the authority granted by the first part of Article 194(3), that Legislature is in fact operating under Article 246 together with Entry 39 of List II. Consequently, any enactment that results from such a claim cannot be characterized as an exercise of constituent power. Because the law is therefore an ordinary legislative enactment, it falls within the definition of “law” as employed in Article 13. The majority judgment in Pandit Sharma ([1959] Supp. 1 S.C.R. 806) had adopted this same view, and the Court expressed respectful agreement with that position. Counsel for the petitioner attempted to buttress his argument by citing observations of Justice Venkatarama Aiyar in Ananthakrishnan v. State of Madras (I.L.R. Mad. 933, 951). In that decision, the learned judge had remarked that Article 13 applied only to laws that existed before the Constitution commenced and to laws that states would enact in the future; only those two categories could be declared void under Part III. The judge further explained that Article 13 did not apply to the Constitution itself, nor did it render other constitutional provisions void, and that such a result would be surprising because the Constitution is an organic whole. The Court considered this principle to be unquestionably correct. However, that principle could have been invoked only if it had been argued that either the first or the second part of Article 194(3) was itself invalid because it conflicted with the fundamental‑rights provisions of Part III. Such an argument was not advanced by Mr Setalvad, nor was it raised in Pandit Sharma. The actual contention, both then and now, was that a law made by a legislature under the authority of the first part of Article 194(3) is a “law” within the meaning of Article 13, and this contention rested upon the language of Article 13(2). Article 13(2) directs that the State shall not make any law that takes away or abridges the rights guaranteed by Part III, and that any law made in contravention of this provision shall, to the extent of the contravention, be void. The statute under consideration does not seek to amend the Constitution, and therefore it does not become a part of the Constitution when enacted. Like other statutes passed by legislatures in the exercise of their constitutionally conferred legislative powers, this statute also qualifies as a “law” under Article 13. Accordingly, the Court found it unreasonable to suggest that the view expressed in Pandit Sharma—namely, that such a statute is subject to the fundamental‑rights guarantees and falls within the scope of Article 13(2)—should be reconsidered. The Court therefore concluded that, for the purposes of resolving the present dispute, the applicable law is that the statute is subject to Article 13 and must be examined for consistency with the fundamental rights guaranteed in Part III.

The Court proceeded on the basis that the latter part of Article 194(3) does not fall within the ambit of Article 19(1)(a) but is instead subject to the protection of Article 21. The next issue for consideration was whether the Constitution intended to perpetuate the dualism that had historically disturbed public life in England during the seventeenth, eighteenth and nineteenth centuries. The framers of the Constitution were aware of several undesirable situations that had arisen from the clash between the judicature and the Houses of Parliament, and they recognised that such clashes threatened to create a deadlock in the public life of England. When they enacted Article 194(3), the question was whether they intended to leave that conflict unresolved or whether they deliberately adopted a scheme of constitutional provisions designed to resolve it. The answer to this question, the Court observed, necessarily depends on a harmonious construction of the relevant constitutional provisions. Turning first to Article 226, the Court noted that this article confers very wide powers on each High Court throughout the territories over which it exercises jurisdiction. Under Article 226 a High Court may issue to any person or authority, including, where appropriate, any Government within those territories, directions, orders or writs—including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari, or any combination thereof—for the enforcement of any right conferred by Part III and for any other purpose. The Court emphasized that the language of Article 226 is deliberately expansive. Because Article 12 defines “State” to include the Legislature of the State, the power conferred on a High Court by Article 226(1) can, in appropriate cases, be exercised even against the Legislature itself. Consequently, if an application is made to a High Court for the issue of a writ of habeas corpus, the House is not competent to raise a preliminary objection that the High Court lacks jurisdiction merely because the detention is by an order of the House. Article 226(1), read in isolation, does not permit such a defence. The Court further observed that Article 32, which deals with the jurisdiction of this Court, places the matter on an even higher pedestal; the right to move this Court by appropriate proceedings for the enforcement of fundamental rights is itself a guaranteed fundamental right. Hence, the observations made regarding Article 226(1) are even more applicable to Article 32(1). While considering these aspects, the Court emphasized that the conflict which has arisen between the High Court and the House is, strictly speaking, not a conflict between the two institutions as such, but rather a conflict between the House and a citizen of the country. The citizen, Keshav Singh, asserts that certain fundamental rights guaranteed by the Constitution have been violated and therefore seeks to approach the High Court under Article 226 to obtain relief.

In this matter, Keshav Singh asserted that his fundamental rights had been illegally violated. The High Court, invoking its authority under Article 226(1), proceeded to examine the substantive merits of Singh’s allegations and consequently issued an interim order. This interim order gave rise to the present dispute. Subsequently, the Uttar Pradesh Legislative Assembly passed a resolution requiring the judges to appear before the Bar of the House to explain their conduct. That resolution transformed the dispute into a confrontation between the High Court and the Assembly, but the underlying controversy remained fundamentally a clash between a private citizen of Uttar Pradesh and the Uttar Pradesh Legislative Assembly. Because the High Court, while performing its statutory duties, had intervened to investigate the citizen’s claims, the judges found themselves drawn into the arena. Hence, when assessing the extent of the Assembly’s powers to address contempt that occurs outside its chambers, the constitutional provisions contained in Articles 226 and 32 acquire particular relevance. The Court also referred to the decision in Pandit Sharma ([1959] Supp. 1 S.C.R. 806), wherein it was held that Article 21 applies to actions taken by the legislature under the latter part of Article 194(3). Consequently, if a citizen approaches the High Court on the ground that his fundamental right under Article 21 has been infringed, the High Court is entitled to scrutinise the claim, thereby imposing a limitation on the scope of the Assembly’s powers in the present proceedings.

Two additional constitutional articles were examined. Article 208(1) empowers a State Legislature to formulate rules governing its procedure and the conduct of its business, subject to the Constitution. This clause makes clear that any rules the Assembly enacts in exercise of the powers granted by the latter part of Article 194(3) must conform to the fundamental rights enumerated in Part III. Similarly, Article 212(1) provides that the validity of any legislative proceeding cannot be challenged on the basis of alleged procedural irregularities, while Article 212(2) grants immunity to legislators and officers exercising procedural or disciplinary powers from the jurisdiction of any court. Nevertheless, Article 212(1) does not preclude a citizen from contesting the legality of a proceeding that is not merely irregular but unlawful; such an unlawful procedure may be examined by a competent court. Finally, Article 211 establishes an absolute prohibition on any discussion within a State Legislature concerning the conduct of a judge of the Supreme Court or a High Court in the performance of judicial duties, thereby shielding judicial officers from legislative scrutiny of their official actions.

In this part of the judgment, the Court considered whether a challenge to legislative proceedings could be based on an illegality rather than merely on an irregularity of procedure. The Court explained that if the procedure challenged was illegal and unconstitutional, a court of law could examine it, whereas a challenge founded only on procedural irregularity could not be entertained. This observation, the Court said, helped to clarify the extent of the powers that the House possessed under the latter part of Article 194(3). The Court then turned to Article 211, which provides that no discussion shall take place in a State Legislature concerning the conduct of any Judge of the Supreme Court or of a High Court in the performance of his duties. The provision creates an absolute constitutional bar on any such discussion. Counsel for the judges, identified in the record as Mr Setalvad, based his argument largely on this article. He contended that the unqualified and absolute language of the prohibition in Article 211 unmistakably meant that the conduct of a Judge while performing judicial functions could never become the subject of any action taken by the House in the exercise of the powers or privileges conferred by the latter part of Article 194(3). He further observed that if a Judge, while discharging his duties, committed contempt of the House, the only remedy available would be that provided by Article 121. Article 121 allows discussion in Parliament about the conduct of a Judge only when a motion is moved to address the President with a request for the Judge’s removal. By reading Articles 121 and 211 together, the Court noted two points: first, the Constitution‑makers attached great importance to the independence of the judiciary, placing judges beyond ordinary controversy except through the procedure laid down in Article 121; and second, if the judicial conduct of a Judge could not be discussed in the House, it was inconceivable that the same conduct could be legitimately acted upon by the House under Article 194(3). This formed the principal argument advanced by Mr Setalvad. On the other side, counsel for the opposing party, identified as Mr Seervai, argued that the effect of Article 211 should not be overstated. He pointed out that Article 211 appears in Chapter III, which deals with State Legislatures and is situated under the heading “General Procedure”, indicating that its sole purpose was to regulate the internal procedure of the legislative chamber. He also relied on Article 194(2), which expressly forbids any action against a member of the Legislature for anything said or any vote cast by that member within the Legislature. Consequently, even if a member violated the absolute prohibition of Article 211, no court could take action against him, a point that, according to Mr Seervai, demonstrated that the significance of the prohibition in Article 211 should not be exaggerated. Moreover, Mr Seervai suggested that a failure to comply with the prohibition contained in Article 211 could not give rise to any constitutional consequence, and he supported this view by referring to the decision of this Court in State of U.P. v. Manbodhan Lal Srivastava, where the Court examined the effect of the provisions of Article 320.

Mr. Seervai further relied on the provisions of Article 194(2), which expressly forbid any legal action against a legislator for anything said or any vote cast by that legislator in the legislative assembly. In his view, if a legislator violated the absolute prohibition stated in Article 211, the prohibition in Article 194(2) would bar any court from entertaining an action against that legislator, indicating that the importance of the prohibition in Article 211 should not be exaggerated. Moreover, Mr. Seervai argued that a failure to observe the prohibition in Article 211 could not create any constitutional consequence. To support this construction, he cited the Supreme Court’s decision in State of U.P. v. Manbodhan Lal Srivastava, [1958] S.C.R. 533. In that case, the Court examined the effect of Article 320, which outlines the functions of the Public Service Commissions and, by clause 3(c), requires consultation with the Union or State Public Service Commission on all disciplinary matters involving a civil servant, including related petitions. The Court held that the consultation requirement was not mandatory and did not create a vested right; consequently, the absence of consultation or any irregularity in the process did not give rise to a cause of action in any court. Mr. Seervai contended that the language of Article 211 should be interpreted in the same manner, rendering the prohibition on which Mr. Setalvad relied merely directory and not compulsory. The Court, however, was not persuaded by Mr. Seervai’s arguments. The mere placement of Article 211 under a heading concerning “Procedure Generally” did not demonstrate that its prohibition was non‑mandatory. The Court emphasized that Articles 211 and 121 must be read together to appreciate the full import of the prohibition. While Article 194(2) indeed provides immunity from court action for speeches made or votes cast by a member in the Legislative Assembly, the provision itself underscores the Constitution’s intention to protect full freedom of speech and expression within the legislative chamber. Consequently, the Constitution made an explicit safeguard that even a breach of the constitutional prohibition in Article 211 would not give rise to court action. The Court recognized that the Speaker would ordinarily prevent a member from contravening Article 211, but if, inadvertently or otherwise, a speech inside the legislative chamber violated Article 211, the Constitution‑makers had nonetheless protected such speech from judicial scrutiny.

In this case, the Court observed that the legislative House itself could, and inevitably would, initiate proceedings against a member who violated the constitutional prohibition. The Court further explained that whenever a doubt arises as to whether a particular speech falls within the scope of Article 211, the responsibility to decide rests with the Speaker of the House. In making such a determination, the Speaker may need to examine whether the remarks proposed by the member relate to the conduct of a Judge while performing judicial duties. The Court emphasized that this assessment belongs to the Speaker’s jurisdiction, yet it underscored that the constitutional framers limited the guarantee of unfettered speech in the chamber by enacting Article 194(2). Article 194(2) thus represents the outermost boundary of the Constitution’s effort to secure absolute freedom of speech and expression within the four walls of the legislature. The Court noted that the subsequent provision, Article 194(3), contains no comparable exception, and therefore it follows logically that while a speech breaching Article 211 enjoys immunity from judicial proceedings under Article 194(2), no similar shield exists under Article 194(3). Consequently, if a Judge, while discharging his duties, issues an order or makes comments that the House deems contemptuous and the House proceeds to institute action against that Judge, such action cannot be justified or protected by any specific provision of Article 194(3). The Court interpreted the deliberate omission of such a safeguard in Article 194(3), especially when contrasted with the explicit protection granted in Article 194(2), as a meaningful legislative choice. This contrast, the Court held, indicates that the framers intended the provision in Article 194(2) to be the sole measure ensuring comprehensive freedom of speech inside the legislative chamber, and nothing further. Accordingly, the conduct of a Judge in the performance of his judicial functions cannot be the subject of legitimate discussion within the House, and even if such discussion occurs, the Constitution provides no avenue for judicial relief. Moreover, the Court stressed that the same conduct cannot be pursued as the basis of any proceeding under the powers and privileges outlined in Article 194(3); otherwise Article 211 would become a meaningless declaration, contrary to constitutional intent. Regarding the interpretation of Article 211, the Court acknowledged that counsel for the petitioner, Mr. Seervai, could rely upon the decision of the Court in State of U. P. v. Manbodhan Lal Srivastava ([1958] S.C.R. ’533). However, the Court observed that the earlier judgment arrived at its conclusion after examining certain additional facts that informed the construction of the provision.

In this discussion, the Court observed that the provision contained in Article 320(3)(c) was not mandatory and that the Court had examined additional facts to reach that interpretation. Nevertheless, the Court adopted the principle established by the Privy Council in Montreal Street Railway Company v. Normandin (L.R. [1917] A.C. 170), where the Privy Council explained that determining whether a statutory provision is directory or imperative is a question that arises frequently, and that no universal rule can be applied; instead, each case requires an examination of the statute’s purpose. The Privy Council further stated that the classification of a provision as mandatory or directory depends on the legislature’s intention rather than on the specific wording used. It required that the legislature’s meaning and intention be discerned not only from the language of the provision but also from its nature, design, and the consequences that would result from interpreting it one way or the other. This reasoning was cited from People v. De Renna (2 N.Y.S.) (2) 694, 166 Misc. (582) as quoted in Crawford, Statutory Construction page 516. The Court said that these principles clearly contradicted the construction advanced by Mr. Seervai. The Court noted that it was unnecessary to refer to other Judicature provisions, because the existence of a fearless and independent judiciary formed the essential foundation of India’s constitutional structure. Consequently, the Court found it untenable to argue that the absolute prohibition set out in Article 211 should be interpreted as merely directory and thereby reduced to a meaningless declaration that would allow the House to act against a Judge for conduct related to his duties. Accordingly, the Court agreed with Mr. Setalvad’s assertion that, irrespective of the scope of powers and privileges granted to the House by the latter part of Article 194(3), the power to initiate action against a Judge for alleged contempt arising from his official acts could not be included within those powers. The Court explained that, according to Mr. Setalvad, the combined effect of Articles 226 and 211 meant that judicial conduct could never become the subject of contempt proceedings under the latter part of Article 194(3), even if such conduct might be subject to contempt proceedings under the powers and privileges of the House of Commons in England. In contrast, Mr. Seervai challenged Mr. Setalvad’s view regarding the effect of Articles 226 and 211 on the latter part of Article 194(3) and argued that even if Mr. Setalvad were correct on that point, he would still not be entitled to dispute the validity of the power and privilege claimed by the House of Commons.

The Court observed that the House of Commons asserts a claim—that no court may proceed beyond the terms of a general or unspeaking warrant—which the House may now invoke in these proceedings. To assess the competing claims, the Court found it necessary to examine briefly the status of this specific power and privilege at the moment the Constitution came into force, while also referring broadly to the overall powers, privileges and immunities that are vested in both Houses of the Parliament of England. In reviewing the powers, privileges and immunities of the English Parliament, the Court considered it appropriate to rely on the authoritative statements contained in May’s Parliamentary Practice, a work that has attained the character of an exposition of parliamentary practice. The Court concluded that attempting to address the issue without reference to May would be futile. According to May, parliamentary privilege comprises the unique rights enjoyed collectively by each House as a component of the High Court of Parliament and individually by members of each House. Consequently, privilege forms part of the law of the land but operates to some extent as an exemption from ordinary law. May defines the particular privileges of the House of Commons as “the sum of the fundamental rights of the House and of its individual Members as against the prerogatives of the Crown; the authority of the ordinary courts of law and the special rights of the House of Lords.” Although a distinction between privilege and function exists, it is not always clear; nevertheless, it is generally convenient to reserve the term “privilege” for those fundamental rights of each House that are widely accepted as essential for performing its constitutional functions. A distinctive feature of a privilege is its ancillary character. The privileges of Parliament are rights that are “absolutely necessary for the due execution of its powers.” These rights are enjoyed by individual members because the House cannot fulfil its functions without the unhindered participation of its members, and they are also enjoyed by each House for the purpose of protecting its members and safeguarding its own authority and dignity, as set out in May’s Parliamentary Practice pages 42‑43. May further notes that, with one exception, the surviving privileges of both the House of Lords and the House of Commons are justified on the same necessity ground that underlies the privileges of legislative assemblies in self‑governing Dominions and certain British colonies, being a legal incident of their legislative authority under common law. The single exception is the power to punish for contempt. Following the Privy Council’s decision in Kielley v. Carson (4 Moore P. C. 63), it has been held that this power is inherent in both the House of Lords and the House of Commons, not because they are legislative bodies, but as a distinct authority.

In this discussion the Court noted that the House of Commons is regarded as a descendant of the High Court of Parliament and, by virtue of the lex et consuetudo parliamenti, claimed its privileges (May"s Parliamentary Practice pp. 42-43). Historically, when the Commons was the weaker body, it engaged in a fiercer and more prolonged struggle to assert its own privileges, initially against the King. Those claims began to be asserted by the Commons as customary rights, and, through repeated efforts, some of those claims hardened into legally recognised “privileges”. May observes that the militant struggle by the Commons produced privilege claims that were established in the late fifteenth and sixteenth centuries, were employed against the King in the seventeenth century, and were arbitrarily applied against the people in the eighteenth century. The Court further observed that it was not until the nineteenth century that a stable equilibrium was reached and that the limits of privilege were prescribed and accepted by Parliament, the Crown and the Courts (May"s Parliamentary Practice, p. 44). Consequently, the two Houses now possess equal authority in administering a common body of privileges. Each House, as a constituent part of Parliament, exercises its own privileges independently of the other, yet those privileges are not derived from separate rights peculiar to each House but exist solely by virtue of the law and custom of Parliament. In general, all properly termed privileges appertain equally to both Houses; each House declares and expounds the privileges, and each adjudicates and censures breaches, but the underlying law of Parliament remains the governing authority.

The Court also emphasized that, although either House may expound the law of Parliament and vindicate its own privileges, it is universally accepted that no new privilege may be created. This principle arose from a historic resolution passed by the House of Lords in 1704, which declared that “neither House of Parliament have power, by any vote or declaration, to create to themselves new privileges, not warranted by the known laws and customs of Parliament.” The resolution was communicated by the Lords to the Commons and affirmed by the latter (May"s Parliamentary Practice, p. 47). Accordingly, there can be no doubt that, by its own resolutions, the House of Commons cannot add to the list of its privileges and powers. At this stage, the Court listed the principal privileges claimed by the Commons. Freedom of speech, regarded as essential to any free council or legislature, is claimed by both Houses as a basic privilege. From 1541, this privilege was incorporated by established practice into the petition of the Commons to the King at the commencement of each Parliament. Despite repeated recognition, the Crown and the Commons were not always in agreement on the limits of this privilege. Ultimately, the privilege received final statutory recognition after the Revolution of 1688.

In the judgment, it was noted that the ninth article of the Bill of Rights declared that “the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament” (Ibid., p. 52). The Court then listed other privileges that have historically been claimed by the House of Commons, namely the right to exclude strangers, the right to control the publication of debates and proceedings, the right to exclusive cognizance of parliamentary proceedings, the authority of each House to be the sole judge of the lawfulness of its own proceedings, and the implied right to punish its own members for conduct within Parliament (Ibid., pp. 52‑53). In addition, both Houses were said to possess the privilege of freedom from arrest or molestation and from being impleaded, a privilege that the Commons asserted on the basis of prescription. Although this privilege received early royal and statutory recognition, its enforcement depended on the Lords and the King, who were not always willing to uphold it, as illustrated by the case of Sir Thomas Thorpe, the Speaker of the House of Commons, who was imprisoned in 1452 under a decree of the Court of Exchequer at the suit of the Duke of York. The Court pointed out that the dominance of the House of Lords in that matter was evident when the Commons, rather than contesting the decision, simply elected a new Speaker, thereby acquiescing to Thorpe’s continued detention (May’s Parliamentary Practice, p. 70). May further observed that certain privileges have, over time, fallen into disuse; for example, the freedom from being impleaded has been largely discontinued, and the Parliamentary Privilege Act of 1770 imposed a significant limitation on the freedom from arrest. A comparable development occurred with respect to exemption from jury service (Ibid., pp. 75‑77). The Court explained that the early list of privileges claimed by the Commons was extensive and reflected an inclination to assert a wide range of rights for the House and its members. However, many of those privileges have either become obsolete or have been regulated by legislation, while the core privileges essential for the effective functioning of the House have persisted. Finally, the judgment emphasized that to understand the nature of these privileges, especially the privilege to punish for contempt, one must consider their historical origin. May highlighted that the modern Parliament originated from judicial functions, noting that recent research has underscored the importance of these judicial elements. Maitland, in his introduction to the Parliament Roll of 1305, was the first to stress that Parliament at that time acted as the King’s “great court” and served as the highest court of royal justice, a view that remains widely accepted.

In that early period the Parliament operated as the King’s “great court” and consequently, among other things, functioned as the highest court of royal justice. Contemporary scholarship now generally agrees that the earliest Parliaments displayed a strong judicial character, and that even during the reign of Edward III, although Parliaments devoted a considerable portion of their time to political and economic matters, the administration of justice continued to be regarded by the King’s subjects as one of their principal functions (May’s Parliamentary Practice, pp. 3‑4). It is well‑known that the Parliament of the United Kingdom consists of three distinct components: the Sovereign, the House of Lords and the House of Commons. These several powers together constitute the Legislature;land, and, as separate elements of the constitution, each exercises functions and enjoys privileges that are peculiar to it. The House of Lords, comprising both Spiritual and Temporal members, sit together and jointly form the House of Lords (Ibid, pp. 8‑9). The precise date when the Commons obtained a separate place within the legislature has long been disputed; however, it is accepted that the Commons often met apart for deliberation, and that the particular venues in which they assembled do not by themselves determine whether such separation at any given time was temporary or permanent. When the Commons deliberated separately, they assembled in the chapter house or the refectory of the Abbot of Westminster, and they continued to sit in those locations after their eventual permanent separation (Ibid, p. 12). The House of Lords possesses a judicature and exercises several judicial capacities. It has the authority to sit as a court during periods of prorogation and dissolution, and a Court of Appeal is constituted by the House of Lords, with final appellate jurisdiction vested in it (Ibid, pp. 38‑39). May also refers to the parliamentary power claimed in relation to acts of attainder and impeachments, describing the manner in which this privilege was exercised by both the House of Lords and the House of Commons (Ibid, p. 40). He observes, “In impeachments, the Commons are but accusers and advocates; while the Lords alone are judges of the crime. On the other hand, in passing bills of attainder, the Commons commit themselves by no accusation, nor are their powers directed against the offender; but they are judges of equal jurisdiction, and with the same responsibility, as the Lords; and the accused can only be condemned by the united judgment of the Crown, the Lords, and the Commons” (Ibid, p. 41). This aspect of the privilege illustrates a typical feature of the historical development of constitutional law in England. Accordingly, a portion of the jurisdiction claimed by both the House of Lords and the House of Commons can be distinctly traced to the historical origin of the modern Parliament, which, as previously indicated, consisted in the judicial functions of Parliament. The differences in the punishments imposed by the Lords and the Commons also acquire significance in this context.

In this discussion, the author May observed that, although both Houses of Parliament treated identical offences as breaches of privilege, they differed in the ways they punished such offences. May explained that the House of Lords asserted that it was a court of record and, on that basis, possessed the authority not only to imprison but also to levy fines. The Lords' method of commitment involved setting a fixed term of imprisonment, requiring the offender to provide security for good behaviour, and typically using attachment as the mode of commitment. In contrast, the House of Commons did not specify a period for commitment and, during the preceding two centuries, had not imposed monetary fines. May affirmed that there was no doubt that the House of Lords, when acting in its judicial capacity, functioned as a court of record; however, Lord Kenyon had observed that when the Lords exercised a legislative function, they ceased to be a court of record. The question of whether the House of Commons could be regarded, in law, as a court of record remained unresolved, because the Commons’ earlier firm claim to such status had been largely abandoned in later practice, though it had never been expressly repudiated (Ibid., p. 90). May later noted that this observation would become crucial when assessing whether the privilege asserted by Mr Seervai—that a general warrant was beyond judicial review—derived from the privilege itself or from a convention developed between the courts and the House of Commons. Turning to the Commons’ power of commitment, May described it as “the keystone of parliamentary privilege.” He quoted a 1593 statement from the Commons stating that the House possessed privilege, jurisdiction, and the power of coercion and compulsion, without which jurisdiction would be meaningless. May argued that this power of commitment originated in the medieval view of Parliament as the “High Court of Parliament,” a primarily judicial institution. Accordingly, the House of Lords, as a judicial body, had long possessed the authority to commit offenders, comparable to any court in Westminster Hall. By contrast, the Commons, being newer participants in Parliament, could not claim an ancient right to commit, as early as 1399 they protested that they were merely petitioners, not judges of Parliamentary judgments. Their claim to the right of commitment was therefore contested on the ground of lack of immemorial antiquity, and was defended through arguments that aimed to separate legislative authority from judicial authority, ultimately allowing the Commons to assert a right to commit offenders on terms similar to those of the Lords.

In this discussion, the Court explained that the origin of the privilege claimed by the House of Commons to commit persons lay in the same historical development that gave the Lords a similar power. The Commons had to fight a hard battle to obtain acknowledgment of this right from the King, from the House of Lords, and often from the public as well. The Lords formally recognized the Commons’ commitment power during a conference between the two Houses, as reflected in the decision of Ashby v. White reported in the 1704 Law Journal, and the power has subsequently been affirmed repeatedly by the courts. The authority of the monarch also hinted at this power; the statute of James I, chapter 13, section 3, stated that nothing in that enactment should “extend to the diminishing of any punishment to be hereafter, by censure in Parliament, inflicted upon any person,” thereby virtually acknowledging the Commons’ right to impose punishment. The Court then turned to the commentary of May on the difficult question of which body, the courts or Parliament, could decide matters of privilege. May observed that a full treatise would be required to treat adequately the constitutional issues that arise whenever parliamentary privilege is invoked. He noted that, from the seventeenth through the nineteenth centuries, many puzzling cases illustrated how hard it was to draw a line between the competence of the courts and the exclusive jurisdiction of each House. Both the Houses and the courts agreed that privilege depended on the “known laws and customs of Parliament” rather than on the mere assertion of either House. The central dispute centered on whether the law of Parliament formed part of the common law in its broad sense, and, if so, whether it stood as a higher law that could override ordinary common law. A further controversy emerged concerning who should adjudicate a claim of privilege: should the House to which the privilege belonged decide the matter even when third‑party rights were implicated, or could the courts decide in certain circumstances, and if they could, what types of cases would permit such judicial determination. The positions of Parliament and the judiciary appeared irreconcilable at first, because the courts claimed the authority to determine, in cases before them, the existence and scope of parliamentary privileges, whereas each House maintained that it alone was the proper judge of its own privileges. Over time, however, practice produced a compromise that satisfied both sides. The courts ultimately affirmed, in principle, their right to decide all questions of privilege that arose during litigation, while respecting the limited exceptions that preserved the exclusive jurisdiction of each House over its internal proceedings and its power to commit for contempt.

In this discussion the Court noted that, while the general rule is that questions of privilege are adjudicated by the courts, there are two significant exceptions that favor parliamentary jurisdiction. The first exception is the exclusive authority of each House to regulate its own internal proceedings, and the second exception is the power of either House to commit a person for contempt and to impose a punishment for that contempt. The Court cited May’s observation that, although it cannot be said that either House has formally consented to the courts assuming this jurisdiction, the fact that no conflict has arisen for more than a hundred years may suggest a tacit acceptance of the arrangement (Ibid., p. 152). Consequently, the question of whether a privilege exists and how far it extends is usually treated as a justiciable issue whenever it becomes relevant to the resolution of a dispute before the courts.

With respect to the power to punish for contempt, the Court explained that a comparable process of mutual accommodation by convention has developed over time, leading to a broad area of practical agreement. The House of Commons maintains, in theory, that it possesses an inherent right to determine the existence and scope of parliamentary privileges, and it has never expressly relinquished that claim. Conversely, the courts regard parliamentary privileges as part of the law of the land and therefore take judicial notice of them. The courts consider it their duty to decide any question of privilege that arises directly or indirectly in a case falling within their jurisdiction, applying their own interpretation of the law (Ibid., p. 172). As a result of this dualistic approach, the decisions of the courts are not regarded as binding by the House on matters of privilege, and the House’s decisions are not treated as binding by the courts. May observes that, on a theoretical level, this old dualism remains unresolved.

Nevertheless, the Court highlighted that, in practice, there is considerably more consensus on the nature and principles of privilege than the theoretical deadlock over jurisdiction would suggest. May summarised the prevailing view in several points. First, it is recognised that, for adjudicating questions of privilege, neither House can claim supreme authority over the ordinary courts of justice, a authority formerly held by the undivided High Court of Parliament. The supremacy of Parliament, comprising the King and the two Houses, is legislative in nature and does not extend to the privilege jurisdiction of a single House acting alone. Second, both Houses accept that, because neither can unilaterally add to the law, neither can by its own declaration create a new privilege; therefore privilege is an objective matter whose extent can be ascertained and is known to the courts. Third, each House’s control over its internal proceedings is absolute and cannot be interfered with by the courts. Fourth, the power of a House to commit a person for contempt is, in practice, an exclusive jurisdiction, since the factual basis of the alleged contempt need not be stated on the warrant of committal.

The Court noted that the warrant of committal was described in May’s Parliamentary Practice on page 173, and then reflected on the English capacity to devise practical, ad‑hoc solutions to conflicts that seem irreconcilable by employing a conventional give‑and‑take approach. According to May, the outcome of this method has been that for the past one hundred years the House of Commons has consistently declined to submit its privileges to any external determination of their existence or scope. Conversely, the judiciary, at least when acting as a court of last resort, has uniformly refrained from interfering with the exercise by the House of any privileges that it recognises, as recorded on pages 173‑174 of the same work. In broad terms, this describes the scope of powers and privileges that the House of Commons claims. The remaining issue for examination is the specific privilege concerning the House’s authority to decide whether a contempt has occurred, to impose punishment for such contempt, and to assert that a general order or warrant sentencing a person for contempt is not subject to judicial review. The Court framed the question as whether this particular right, argued by counsel for the House, forms an intrinsic part of the privileges vested in the House of Commons, or whether it arises from a convention‑based agreement between the courts and the House, from the doctrine of comity, or from a legal presumption. The Court then indicated that, even while focusing on this narrow point, it was necessary to consider the complex historical development of the law on this matter as it emerged through English judicial decisions. While the analysis of parliamentary privileges relied principally on May’s commentary, the evolution of the specific doctrine would be traced through case law. Both counsel for the petitioner and counsel for the respondent cited numerous English decisions to support their respective positions, and the Court found it appropriate to refer to several representative cases in order to illustrate how the doctrine of privilege and its ancillary principles have gradually been shaped in England. For the Court’s purpose, the narrative begins in 1677 with the Court of King’s Bench’s consideration of a portion of the problem in the Earl of Shaftesbury case (86 E.R. 792). The matter developed incrementally as various aspects of parliamentary privilege were presented before the courts of Westminster, continuing until the 1884 decision in Bradlaugh v. Gossett (L.R. 12 Q.B.D. 721). Accordingly, the Court commenced its review with the Shaftesbury case, wherein the Earl of Shaftesbury was committed to the Tower of London under an order of the House of Lords that directed the constable…

The House of Lords had directed the constable of the Tower of London to receive the Earl of Shaftesbury and to keep him in safe custody “during the pleasure of the House for high contempts committed against this House; and this shall be a sufficient warrant on that behalf.” The Earl challenged that order by filing a writ of habeas corpus in the Court of King’s Bench, contending that his commitment was unlawful because the allegation of “high contempts” was so vague that the court could not sustain it. He further submitted that the jurisdiction of the Lords was subject to the limits imposed by common law and therefore could be examined by the courts. The Court unanimously rejected this submission, holding that it could not question a judgment of the House of Lords, which was regarded as a superior court. Rainford C.J. declared that “this Court hath no jurisdiction of the cause, and therefore, the form of the return is not considerable.” The Chief Justice explained that the commitment was carried out in execution of a judgment pronounced by the Lords for contempt, and that releasing the Earl on bail would defeat that execution because a contempt in facie curiae did not produce any other judgment for execution. Consequently, the decision affirmed the principle that the House of Lords possessed the authority to issue a warrant for contempt and that a commitment made under such a warrant could not be scrutinised by the King’s Bench Division.

Five years later, a man named Jay petitioned the King’s Bench Division for release from arrest and instituted an action against Topham, the Serjeant‑at‑Arms, alleging unlawful arrest and detention. Topham contended that the court lacked jurisdiction to hear the matter, but the court dismissed his argument and ruled in favour of Jay. Seven years after that judgment, the House of Commons declared the decision “illegal, a violation of the privileges of Parliament, and pernicious to the rights of Parliament.” Acting on that view, the two judges involved were summoned to appear before the Bar of the House to explain their conduct. When Sir Francis Pemberton appeared, he told the House that he had been absent from the bench for more than six years and could not recall the details of the case. He expressed surprise at being summoned without adequate notice of the charges and urged that, had the defendant pleaded that his arrest was made under the command of the House, the King's Bench ought to have overridden that plea. Pemberton therefore requested time to examine the court records before making further submissions. Ultimately, the House ordered the two judges to be imprisoned.

In that report, the Court observed that the incident had been strongly condemned by every leading constitutional scholar in England and was widely regarded as an unfortunate and regrettable chapter in the history of the House of Commons. The Court found it ironic that an event occurring in 1689 was being invoked by the House in the present proceedings, even though fourteen years had passed since the nation had become accustomed to a democratic system of government based on a written Constitution. Before concluding the present case, the Court thought it important to briefly indicate how later judges had evaluated the conduct of the House of Commons in that earlier episode. In the case of Sir Francis Burdett v. Abbot, reported in the English Reports at volume 104, page 501, paragraph 541, Lord Ellenborough, Chief Justice, remarked that it was astonishing, when one examined the record, that a judge had been questioned by the House of Commons and committed to prison for delivering a judgment that no other judge sitting in that court could have disagreed with. He added that the Attorney‑General who had appeared for the Crown in Burdett had conceded that the matter probably had not been well understood at the time. Lord Ellenborough therefore observed that, because the incident occurred after the Revolution, such a commitment for that reason was somewhat alarming. He also noted that the judge involved, Sir Francis Pemberton, had been at a disadvantage because he had been one of the judges who sat on the trial of Lord Russell, and consequently his popularity had suffered after the Revolution, especially when Parliament had recently reversed the judgment and attainder in that case. In a later decision, Stockdale v. Hansard, reported in the English Reports at volume 112, page 1112, paragraph 1163, Chief Justice Denman expressed that respect and gratitude toward the Convention Parliament should not blind the judiciary to the fact that the sentence of imprisonment imposed in the earlier episode was as unjust and tyrannical as any act of arbitrary power that had previously led to the removal of King James from the throne. The Court then referred to another authority, Ashby v. White, reported in the year 1703‑04 at volume 92, page 126 of the English Reports. In that case, the plaintiff, a burgess of Aylesbury, claimed the right to cast two votes for Members of Parliament. When the returning officers of the borough refused to receive his vote, the plaintiff sued them for malicious and fraudulent denial of his voting rights, and a jury awarded him damages. The defendants later sought to arrest the judgment in the Queen’s Bench, arguing that the plaintiff’s claim was not maintainable. The majority of the judges, led by Chief Justice Holt, allowed the arrest, while Justice Gould dissented, holding that the action against the returning officers was not maintainable.

In support of his conclusion, the judge enumerated four reasons. First, he said that the defendants were acting as judges, and therefore the dispute involved a judicial function. Second, he observed that the subject matter concerned a property or profit, and that any obstruction to it amounted only to damage without legal injury, expressed in the Latin term damnum sine injuria. Third, he noted that the issue was public in nature, and fourth, he described it as a popular offence, citing the reports at page 129 of the ninety‑second English Reports (92 E.R. 126, 129).

Holt C.J. dissented from the majority opinion and articulated his disagreement in forceful terms. He referred to his colleagues’ view that the Court could not adjudicate the matter because it was a parliamentary question, and he responded, “O! by all means be very tender of that. Besides, it is intricate, and there may be contrariety of opinions. But this matter can never come in question in Parliament; for it is agreed that the persons for whom the plaintiff voted were elected; so that the action is brought for being deprived of his vote” (Ibid., 137). Holt acknowledged that the Court should not overstep or enlarge its jurisdiction, yet he argued that when the case arose before the Court on the basis of a royal charter, a custom, or a prescription, the Court could decide without infringing on parliamentary privilege. He concluded that whenever a matter fell within the Court’s jurisdiction, “we are bound by our oaths to judge of it” (Ibid., 138). He emphasized that this particular decision did not address the issue of contempt.

The subsequent case considered the question of contempt of the House of Commons and was reported as R. v. Paty (1704) 92 E.R. 232. In that case, Paty and four other individuals were committed to Newgate Prison pursuant to a warrant issued by the Speaker of the House. The warrant was a speaking warrant, indicating that the detainees had committed contempt of the House’s jurisdiction and had openly breached known privileges of the House. The detainees challenged the validity of the warrant on the ground that it contained numerous infirmities.

The majority held that the ordinary courts possessed no jurisdiction to entertain the challenge, because the House of Commons itself was the proper judge of its own privileges. Justice Powys, in reaching this conclusion, referred to the earlier decision in The Earl of Shaftesbury’s case (86 E.R. 792). He remarked, “If all commitments for contempts, even those by this Court, should come to be scanned, they would not hold water. Our warrants here in such cases are short, as for a contempt, or for a contempt in such a cause. So in Chancery the commitments for contempt are for a contempt in not fully answering, etc., and would not this commitment be sufficient?” He further asserted that the House of Commons functioned as a great court, and that all acts performed by it were intended to be regarded as proper judicial acts; consequently, the warrant need not recite the details of the offence with great specificity, just as the Court sometimes commits persons by a rule of court without an elaborate description.

In the earlier case, the court observed that a short general warrant issued for committing a person for contempt was valid because the purpose of such a warrant was to convey the intended action, and the courts should understand the meaning of the commitment. The majority concluded that the House of Commons functioned as a great Court, comparable to the superior courts at Westminster, and therefore possessed the authority to issue a brief general warrant for contempt. The majority further held that if such a warrant were issued and subsequently challenged before the courts at Westminster, the challenge must be met with the same respect that the courts accord to similar warrants issued by the superior courts. Holt C.J. did not accept the argument that the imprisonment in question was an act to which every freeman of England ought to be bound. He observed that a legal act could not be rendered illegal merely by a vote of the House of Commons, and that neither House of Parliament, nor both Houses together, could dispose of a subject’s liberty or property without the participation of the Crown. He emphasized that the concurrence of the sovereign with the Houses was essential for safeguarding the liberty of the subject. Consequently, the case recognised that it would be improper for the Westminster courts to examine the validity of a general warrant issued by the House of Commons. This principle was reiterated in Murray’s case (95 E.R. 629, 1750), where the House of Commons committed Murray to prison for refusing to kneel before the Bar of the House, describing his refusal as a “most dangerous contempt of privilege.” When a petition for habeas corpus was presented, the court rejected it on the ground that the House of Commons was undeniably a High Court, universally acknowledged to have the power to determine its own privileges, and that the court could not judge the nature of the contempt even if it were known. Justice Wright added that the House of Commons was superior to his own court and that his court could not grant bail to a person committed for contempt by any other court sitting in Westminster Hall. Dennison J. concurred, stating that the Westminster court was inferior to the House of Commons in matters of judging privileges and contempts. The reasoning in this case again rested on the view that the House of Commons was a superior court whose warrants could not be scrutinised by the ordinary courts. The subsequent relevant authority involved Lord Mayor and Member of the House of Commons, Brass Crosby, who, as a magistrate, faced similar questions concerning the interaction between the House’s authority and the courts.

In that case the Lord Mayor of London, who also acted as a magistrate, admitted bail for a prisoner who had been detained under a warrant that had been issued by the Speaker of the House of Commons on the direction of the House itself. The House subsequently held that the Lord Mayor had committed a breach of its privilege, and on that finding it ordered that he be committed to the Tower of London. Brass Crosby challenged the legality of that order. The challenge was rejected because the House of Commons, when it determines that a person has committed a contempt or a breach of privilege, is effectively rendering a conviction, and the subsequent commitment functions as the execution of that conviction. Lord Chief Justice de Grey explained that no other court possessed the power to release or bail a person who was already in execution pursuant to the judgment of another competent court. He therefore concluded that, since the House of Commons has the authority to commit persons and such commitment constitutes an execution, the question for this Court was what it could do in the circumstance. He answered that the Court could do nothing when a person is already in execution under the judgment of a court that has proper jurisdiction, and that, in such a situation, this Court was not a court of appeal. Blackstone J. agreed with that reasoning and described the House of Commons as a Supreme Court. He warned that allowing every court within Westminster Hall to examine the commitments made by the other courts would create extreme confusion, and therefore each court’s judgment and commitment for contempt must be final and beyond external control.

The decision was therefore based on the established principle that the House of Commons was a superior court with the power to punish individuals it found guilty of contempt. A general warrant issued by the House in respect of such a contempt was treated as having the same status as a similar warrant issued by any other superior court situated in Westminster Hall. Before concluding the discussion of this matter, the judgment noted a comment made by Lord Denman C.J. on the decision. Lord Denman observed that, historically, the House of Commons had acted in concert with the Crown to attack the legitimate rights of the people, yet the learned judge Blackstone had expressed an unwavering commitment to uphold the House even when it might have exercised its power abusively, as discussed in Stockdale v. Hansard (112 E.R. 1112, 1158). Following this, the Court referred to the subsequent important authority of Sir Francis Burdett’s case (104 E.R. 501). That case arose from a trespass action brought by Sir Francis Burdett against the Speaker of the House of Commons for forcibly entering his residence and imprisoning him in the Tower. The defence pleaded that the defendant’s conduct was justified because it had been carried out under an order of the House that had adjudicated Burdett guilty of contempt for publishing a libellous and scandalous pamphlet concerning the rights and privileges of the House.

In that case the House ordered the committal of Sir Francis Burdett after it had determined that he had committed a contempt of the House by publishing a libellous and scandalous pamphlet that criticised the rights and privileges of the House. The matter was argued at length, and the legal commentator May observed that the case serves as one of the principal authorities for the power of the House of Commons to commit a person for contempt, comparable to the authority recognized for the House of Lords in the case of Lord Shaftesbury. The warrant issued by the House was a speaking warrant, and the contempt alleged was contempt of the House of Commons itself. Burdett’s plea in defence of the warrant was rejected, and the reasons for that rejection were given considerable importance. Lord Ellenborough, Chief Justice, examined the issue exhaustively. He noted that, based on earlier parliamentary precedents, statutory recognition and the consistent acknowledgment by the judiciary, there was ample authority to settle the question of whether the House of Commons possessed the power to commit a person for contempt of its privileges, and he concluded that the House certainly did possess such power. Acting on that conclusion, Lord Ellenborough held that the publication was deemed libellous and, by analogy with the judgments of a court of law, asserted that the decisions of either House of Parliament could not be treated as less authoritative than those of ordinary courts; consequently, the House should be regarded as having decided any question that might later arise before another court. The next issue he considered was whether the warrant itself set out a sufficient ground for commitment and an order to the House officers to carry out the commitment. It was argued before the Court that if the warrant appeared on its face to be unjustified, illegal or extravagant, the Court would be entitled to entertain a petition for a writ of habeas corpus and to grant relief to the detained party. Lord Ellenborough responded that where a commitment was made expressly for a contempt of the House, neither that Court nor any other superior court would examine the matter further. However, if the warrant did not expressly commit the person for contempt but instead rested on a ground that could not reasonably be intended as a contempt and was manifestly arbitrary, unjust and contrary to the principles of positive law and national justice, then the Court must scrutinise the warrant and grant relief as required by justice.

In the discussion of the authority of a general warrant issued by the House of Commons, the Court noted that, although it would generally be improper for a court to scrutinise such a warrant, Lord Ellenborough had expressly declared an important limitation to that principle. He explained that the rule against examining a general parliamentary warrant could not be applied when the return or any other evidence showed that the commitment made under the warrant was plainly and unmistakably unjust. In those circumstances, the Court retained the power to grant relief to the aggrieved party, despite the general rule that a parliamentary warrant ought not to be questioned.

The matter subsequently proceeded to an appeal before the Court of Exchequer, where the original decision was upheld. Prior to the pronouncement of the appellate judgment, Lord Eldon suggested to the other judges that the counsel representing the defendants should be postponed until the judges could consider a specific question he formulated. The question put to the judges was whether, in a situation where the Court of Common Pleas had found an act to be contempt of court and had ordered a commitment for that contempt by means of a warrant that merely stated the finding of contempt in general terms without detailing the particular facts, the Court of King’s Bench, when faced with a habeas corpus petition that set out the warrant and the general adjudication, would be required to release the prisoner because the warrant did not contain the specific facts giving rise to the contempt. After brief deliberation, Lord Chancellor Baron Richards delivered a unanimous opinion that the Court of King’s Bench would not discharge the prisoner under those circumstances. This opinion was adopted, and the appeal brought by Burdett was dismissed without the respondent being called to answer. In delivering the judgment, Lord Erskine observed that the House of Commons, irrespective of whether it was regarded as a court, possessed the same authority as any other tribunal to protect itself against obstruction and insult and to preserve its dignity and character. He stressed that the preservation of the law’s dignity was essential, likening its loss to a setting sun that could never rise again, and he affirmed his complete agreement with the judges’ opinion.

The judgments in these cases collectively established the principle that a warrant issued by the House of Commons was to be treated as if it were issued by a superior court, thereby preventing the courts situated in Westminster Hall from probing its validity. In the years 1836‑37, a series of cases arose involving John Joseph Stockdale, which ultimately resulted in the arrest and imprisonment of the Sheriffs of Middlesex. One of the prison‑inspector reports, published under the direction of the House of Commons, described Stockdale in a manner that was alleged to be libellous. Consequently, Stockdale instituted legal proceedings against Messrs. Hansard in 1836. In response, Hansard pleaded privilege and argued that the reports had been published pursuant to the authority of the House of Commons.

In this case the material that had been published was said to have been issued under the directives of the House of Commons. The Court examined that claim and concluded that an order from the House did not constitute a legal defence to the suit that had been brought. Nevertheless, the jury returned a verdict that was unfavourable to Stockdale on the issue of justification, apparently deciding that the description of Stockdale that was alleged to be libellous was in fact correct. At the time of the trial, the Lord Chief Justice, Sir James Denman, expressed observations that were critical of the claim of parliamentary privilege asserted by Hansard. He remarked that the mere fact that the House of Commons had instructed Messrs. Hansard to print all parliamentary reports could not be used as a justification for either the printers or any bookseller who published a parliamentary report that contained a libel against an individual, citing May’s Parliamentary Practice, page 159. It is also noteworthy that, as a consequence of this controversy, Parliament later enacted the Parliamentary Papers Act of 1840, which expressly rejected the view expressed by the Lord Chief Justice.

Undeterred by the adverse jury verdict on the merits, Stockdale instituted a second suit. Before that suit was filed, the House of Commons had, in 1837, passed a resolution reaffirming its privileges and stating that any court which attempted to adjudicate matters of privilege contrary to the determination of either House would be acting against the law of Parliament. In the second action, the defendants again raised the defence of parliamentary privilege, but the Court rejected that defence and issued a decree ordering the payment of damages and costs. Although the decree required payment, the House of Commons did not enforce its own resolution by publishing the names of Stockdale or his legal advisers for having taken the matter to a court; instead, it permitted the ordered damages and costs to be paid given the special circumstances surrounding the case.

Encouraged by the outcome of the second suit, Stockdale commenced a third action concerning another publication of the same report. In this third proceeding Messrs. Hansard made no defence, and consequently the judgment was entered against them by default. A jury in the Sheriff’s Court assessed damages of six hundred dollars. The Sheriffs of Middlesex, who were responsible for collecting that sum, received copies of the House’s resolutions, which made them cautious. As a result they postponed payment to Stockdale for as long as possible, but eventually the amount was released to Stockdale by way of attachment. At that point the House of Commons intervened again, committing Stockdale to the custody of the Serjeant and demanding that the Sheriffs refund the money they had paid. When the Sheriffs refused, they themselves were committed for contempt of the House. The Sheriffs consequently applied for a writ of habeas corpus seeking release, but those proceedings were unsuccessful. The final effect of these events is reflected in the decision reported in the Case of the Sheriff of Middlesex, reported at 113 E.R. 419. The commentary that follows notes that counsel for the petitioner, Mr. Seervai, placed considerable emphasis on this decision.

Mr. Seervai laid considerable emphasis on the earlier decision and he specifically pointed out that the Court had found itself powerless to protect the Sheriffs of Middlesex from imprisonment, even though the conduct that led to contempt of the House was, in effect, the result of an order issued by the Court.

Lord Denman C.J., who had previously discussed at length the question of the House of Commons’ claim to privileges in the case of Stockdale v. Hansard and had disputed that claim, participated in this decision. He opened his judgment by stating that his earlier judgment delivered in Stockdale v. Hansard was correct in every respect. Nevertheless, the plea raised by the Sheriffs required a response because their commitment was sustained by a legal warrant. Lord Denman then examined the three grounds on which the validity of that warrant was challenged and concluded that none of those pleas contained any substance.

The learned Chief Justice considered the earlier authorities concerning the issue and observed that the test formulated by Lord Eldon in Burdett v. Abbot was applicable. That test proceeds on the assumption that, like the general warrants for commitment issued by superior courts, the general warrants issued by the House of Commons on the ground of contempt should not be examined in habeas‑corpus proceedings.

Littledale J., concurring with Lord Denman, explained that when a warrant declares the grounds of adjudication, this Court will examine the validity of those grounds; but when a warrant does not declare such grounds, the Court cannot conduct such an inquiry. In the present case, the Court must presume that the House adjudicated with sufficient reason and that it acted as the proper judge.

Justice Williams, also concurring, added that if the return in a case of this kind showed a frivolous cause of commitment—for example, a complaint that a person was wearing a particular dress—he would agree with the opinion expressed by Lord Ellenborough in Burdett v. Abbot, which distinguishes between a commitment that states contempt in general and one that appears to be based on grounds that are plainly unjust and absurd.

Coleridge J. preferred to base his conclusion on the proposition that the right of the House of Commons to adjudicate in this general form in contempt cases is not founded on privilege, but rests on the same basis on which this Court or the Court of Common Pleas might commit a person for contempt without stating a cause in the commitment. He found it necessary to clarify that the right to demand that a general warrant be respected when its validity is challenged in habeas‑corpus proceedings has now become part of the privilege itself, as a result of a convention by which such warrants issued by superior courts or

In the judgment, the Court observed that records of this kind were ordinarily respected, and it noted that the decision pronounced in 1840 represented a landmark in the development of the law on this subject. The Court further explained that this earlier decision did not support Mr Seervai’s argument that the privilege of the House required a general warrant issued by it to be treated as conclusive and beyond judicial examination. The Court then turned to the case of Howard v. Sir William Gosset (116 E.R. 139). In that case a majority held that a warrant issued by the Speaker of the House against Howard was invalid because of certain infirmities discovered in the warrant, while Williams J was the sole dissenter. The warrant in question was a general warrant, and Williams J maintained that technical objections to its validity could not be entertained, on the basis that a general warrant should be regarded as conclusive proof that the person against whom it was issued had been properly adjudged guilty of contempt. The judgment had been given in favour of the plaintiff Howard, and the matter was consequently taken on appeal, where the Court of Exchequer reversed the majority decision. Parke B considered the various arguments advanced against the validity of the warrant and rejected them. The Court of Exchequer summed up its reasoning in the following passage: “We are clearly of opinion that at least as much respect is to be shewn, and as much authority to be attributed, to these mandates of the House as to those of the highest Courts in the country; and, if the officers of the ordinary Courts are bound to obey the process delivered to them, and are therefore protected by it, the officer of the House of Commons is as much bound and equally protected. The House of Commons is a part of the High Court of Parliament, which is without question not merely a Superior but the Supreme Court in this country, and higher than the ordinary courts of law.” From this reasoning, the Court concluded that because the House of Commons formed part of the High Court of Parliament, it functioned as a superior court and the general warrants it issued could not be subjected to close scrutiny, just as similar warrants issued by other superior courts of record were exempt from such examination. The Court also noted that the observation that the House of Commons, as part of the High Court of Parliament, was a Supreme Court higher than ordinary courts recalled the original judicial character of the Parliament in its early history and emphasized that the House of Lords, also a component of Parliament, continued to serve as the highest court of law in England.

In England, the Court also considered the earlier decision of the Queen’s Bench Division in Bradlaugh v. Gossett ((1884) L.R. 12 Q.B.D. 271). Although that decision was not directly applicable to the present matter, counsel relied on several legal statements made by Justice Stephen, and therefore the Court found it necessary to refer to that case briefly. In Bradlaugh, the Court was asked to determine whether a legal action could be brought against the Serjeant‑at‑Arms of the House of Commons for removing a Member from the Chamber in compliance with a resolution of the House directing such removal. The Court answered in the negative, holding that no such action could lie. The resolution of the House had been challenged on the ground that it contravened existing law, and the Queen’s Bench initially examined the claim on the premise that the resolution might not align with the true effect of the relevant legal provision. However, the Court concluded that the dispute concerned the internal management and procedural affairs of the House of Commons, matters over which the Court possessed no jurisdiction to intervene. When the argument was advanced that the resolution plainly violated the applicable law, Justice Stephen rejected it, observing that the House’s authority over its internal affairs stood in the same relationship as judges stand to the laws they interpret and apply. He explained that the House is bound by the solemn obligations that bind any person to conduct themselves according to the law as they understand it. Justice Stephen added that even if the House were to misunderstand or willfully disregard the law, it would resemble a mistaken or unjust judge, yet there is, in his view, no appeal from the House’s decision. He noted that no precedent exists in which any Court has interfered with the internal affairs of either House of Parliament, although many cases exist where Courts have defined the limits of their own powers outside the Houses. He therefore affirmed his conclusion as recorded at Ibid., 286. Counsel for the petitioner argued that the resolution in Bradlaugh appeared to breach the Parliamentary Oaths Act, yet the Court denied relief to Bradlaugh, and suggested that the same approach should be adopted in the present dispute. The Court found this contention misplaced because the present proceedings do not involve any question relating to the internal

In the present proceedings the Court observed that the issue was not one of internal management of the House. The question before the Court concerned the authority of the House to punish individuals for contempt that was alleged to have been committed outside the four walls of the House. The Court pointed out that this situation raised considerations that were different from those that arise in disputes concerning the internal affairs of the legislative body.

The Court then explained that after examining the decisions that were relevant to the point, it could be said with accuracy that the right claimed by the House of Commons not to have its general warrants examined in habeas‑corpus proceedings was based principally on the view that the House of Commons occupied a position comparable to that of a superior court of record. In that capacity, the House, like other superior courts of record, possessed the power to issue a general warrant for the commitment of persons who were found guilty of contempt. Accordingly, the Court held that general warrants issued by the House of Commons in circumstances analogous to those in which superior courts issue such warrants should be treated in the same manner. On that basis, the general warrants issued by the House of Commons had historically been placed beyond the scrutiny of the courts in habeas‑corpus proceedings. The Court added, however, that even while recognizing the validity of such general warrants, judges had often observed that when they were satisfied that a warrant had been issued for frivolous or extravagant reasons, they retained the authority to examine the warrant’s validity.

The Court further noted that the position revealed by the decisions examined up to that point did not strongly support the claim advanced by the appellant that the conclusive character of the general warrants formed an intrinsic part of the privilege itself. The appellant’s counsel relied heavily on decisions of the Privy Council that appeared to support that contention, and the Court therefore turned to those authorities. The first authority considered was the case of the Speaker of the Legislative Assembly of Victoria v. Hugh Glass ([1869‑71] 3 L.R.P.C. 560). In that case the Constitution Act for the Colony of Victoria had granted the Legislative Assembly the power to commit a person by a general warrant for contempt and breach of privilege of the Assembly. Exercising that power, the Assembly declared Mr Glass to have committed contempt and, under a general warrant issued by the Speaker, ordered his commitment to jail. A habeas‑corpus petition filed on his behalf was granted by the Chief Justice of the Supreme Court of the Colony on the ground that the Constitution Statute and the Colonial Act did not give the Legislative Assembly the same powers, privileges and immunities that were possessed by the House of Commons. On appeal by the Speaker, the Privy Council reversed the colonial Supreme Court’s decision, holding that the relevant statute and the Act conferred on the Legislative Assembly the same powers and privileges that the House of Commons enjoyed at the time the Acts were passed.

Having concluded that the Legislative Assembly of Victoria possessed the same powers as the House of Commons, the Privy Council turned its attention to the precise nature and scope of those powers. Lord Cairns, who delivered the judgment, affirmed that one of the most important privileges of the House of Commons is the authority to commit a person for contempt. He explained that, as a matter of established practice in this country, the House of Commons is entitled to act as the sole judge of what constitutes contempt and may issue a warrant of commitment that merely states the commitment is for contempt of the House in general, without describing the specific character of the contempt. This observation was quoted verbatim, emphasizing that the privilege includes the power to determine contempt and to order confinement by a general warrant.

Lord Cairns then examined the argument that the Constitution Act did not grant the Victorian Legislative Assembly the incidental power to issue such a general warrant. He rejected that contention, stating that there is a fundamental distinction between two kinds of contempt‑commitment privileges. The first, likened to the privilege of an inferior court, requires the body to first define the contempt, to set out the nature of the contempt on the warrant, and then to submit that warrant to review by a superior tribunal, leaving the outcome dependent on that higher court’s agreement or disagreement. The second privilege, which he described as higher and more important, allows a body to determine contempt for itself, without any external review, and to commit a person for that contempt on a warrant that does not specify the character or nature of the contempt. Lord Cairns observed that it would be strange if, in transferring the entire range of privileges of the House of Commons, only a comparatively insignificant portion of that power were conveyed. Consequently, the Privy Council held that the power to issue a general warrant and to treat that warrant as conclusive is an integral part of the House’s privilege. Moreover, the Council highlighted that this power reflects the status of the Legislative Assembly as a superior court, and therefore the Constitution Act was intended to confer upon it the full, superior‑court‑like privilege, encompassing both the authority to determine contempt and to issue an unconditional warrant.

In discussing the scope of the power, the Court noted that Lord Cairns apparently did not consider it necessary to refer to the earlier English decisions that had repeatedly examined the question of the extent and nature of that power. The Court observed that this omission was made with respect, but it was nonetheless a factual observation about the manner in which Lord Cairns approached the issue.

The next authority that was relied upon by counsel for the petitioner, identified in the record as paragraph 112, was the Privy Council case of Fielding and Others v. Thomas ([1896] L.R.A.C. 600). In that case the Privy Council was called upon to determine the limits of the authority conferred upon the Nova Scotia House of Assembly. The Council held that the Assembly possessed a statutory power to rule that a deliberate refusal to comply with an order to attend—a refusal that was related to a libel concerning its members—constituted a breach of privilege and contempt. The Council further held that the Assembly could punish such a breach by imposing imprisonment. The Court clarified that, for the present purpose, it was unnecessary to set out the specific statutory provisions that formed the basis of the argument in that case, nor was it required to recount the factual circumstances that gave rise to the proceedings. What was essential, the Court said, was a single observation made by Lord Halsbury in that judgment. Lord Halsbury was quoted as saying: “The authorities summed up in Burdett v. Abbot (104 E.R. 501), and followed in the Case of The Sheriff of Middlesex (113 E.R. 419), establish beyond all possibility of controversy the right of the House of Commons of the United Kingdom to protect itself against insult and violence by its own process without appealing to the ordinary courts of law and without having its process interfered with by those courts.” (cited at [1896] L.R.A.C. 600, 609). The Court indicated that the concluding portion of this quotation provided some assistance to the petitioner's argument. However, the Court also explained that this observation was based on two earlier decisions that had already been examined, and that it did not reconcile easily with the reservations expressed by several judges who had previously considered the question of whether courts could review the validity of a petitioner's imprisonment when the warrant issued by the House of Commons appeared, on the return of the House, to be patently frivolous or founded on extravagant or fanciful reasons.

The final authority cited by counsel for the petitioner, marked as paragraph 113, was the case of The Queen v. Richards (92 C.L.R. 157). In that matter the High Court of Australia was asked to interpret section 49 of the Australian Constitution, a provision that is analogous to article 194(3) of the Constitution under review. Section 49 was reproduced in full: “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.” The Court noted that one of the key points for consideration in that case related to the nature and extent of the powers, privileges, and immunities that section 49 conferred upon the Australian Senate and House of Representatives. (Paragraph 114 follows with further discussion.)

In this matter, the Court examined the question concerning the nature and scope of the powers, privileges, and immunities that s. 49 of the Constitution confers on the Senate and the House of Representatives in Australia. The Court observed that, in the precedent case of The Queen v. Richards (92 C.L.R. 157), the individuals named Fitzpatrick and Browne were taken into custody by Edward Richards pursuant to warrants issued by the Speaker of the House of Representatives of the Commonwealth Parliament. Those warrants were of a general character and instructed Richards to receive the two persons into his custody. On 10 June 1955, Fitzpatrick and Browne, acting as prosecutors, applied to the Supreme Court of the Australian Capital Territory, where Justice Simpson granted an order nisi for two writs of habeas corpus directed against Edward Richards. Five days later, on 15 June 1955, Justice Simpson, exercising authority under s. 13 of the Australian Capital Territory Supreme Court Act, ordered that the case be referred for argument before a Full Court of the High Court of Australia, and the matter consequently proceeded to that High Court. The High Court subsequently held that s. 49 functions independently of s. 50 and must not be narrowly interpreted by reference to the broader constitutional structure or the doctrine of separation of powers. By construing s. 49 apart from s. 50, the Court determined that the powers, privileges, and immunities of the British House of Commons at the time of the Commonwealth’s establishment were transferred to the Australian Parliament, and because Parliament had not made a declaration within the meaning of the section, it was necessary to ascertain what the Commons’ powers were at that historical moment in order to decide whether Parliament could issue a general warrant. Accordingly, the High Court concluded that, under s. 49, the Australian Parliament could assert the privilege of defining contempt and of committing individuals for that contempt, and that a Speaker’s warrant, if on its face consistent with a recognized breach of privilege, is conclusive even when the breach is described in general terms. The Court noted that this reasoning supports Mr. Seervai’s contention that a general warrant issued by the House in the present case is not subject to scrutiny by the High Court. In assessing the import of this decision, the Court pointed out that Australian jurisprudence had already been firmly established by the Privy Council decisions in Dill v. Murphy (15 E.R. 784; (1864) 1 Moo P.C. (N.S.) 487) and in Hugh Glass, with Dixon C.J. expressly referring to that aspect of the matter and relying on Lord Cairns’ observations in Hugh Glass when deciding the issue before the High Court of Australia.

Having adopted this approach, the learned Chief Justice considered it unnecessary to discuss at length the situation in England, because the English position had already been conclusively determined for the guidance of Australian courts by the observations made by Lord Cairns in Hugh Glass ([1869‑71] 3 L.R.P.C. 560). Nevertheless, he noted that the question concerning the powers, privileges and immunities of the House of Commons is one that the courts of law in England have treated as a matter for their own decision. He added that the courts in England arrived at that position after a long series of judicial decisions that were not free from political controversy, and that the law in England was finally settled about the year 1840. This observation clearly refers to the Case of the Sheriff of Middlesex (113 E.R. 419). To quote the words of the learned Chief Justice: “Stated shortly, it is this: it is for the courts to judge of the existence in either House of Parliament of a privilege, but, given an undoubted privilege, it is for the House to judge of the occasion and of the manner of its exercise. This judgment of the House is expressed by its resolution and by the warrant of the Speaker. If the warrant specifies the ground of the commitment, the court may, it would seem, determine whether it is sufficient in law as a ground to amount to a breach of privilege, but if the warrant is, on its face, consistent with a breach of an acknowledged privilege it is conclusive and it is no objection that the breach of privilege is stated in general terms. This statement of law appears to be in accordance with cases by which it was finally established, namely, the Case of the Sheriff of Middlesex” (113 E.R. 419). Accordingly, even according to Chief Justice Dixon, the existence and extent of a parliamentary privilege is a justiciable matter that can be adjudicated by the High Court. When the warrant is a speaking warrant, the Court may determine whether the ground specified is sufficient in law to constitute a breach of privilege; however, if the warrant is unspeaking or merely general, the Court is not permitted to go behind it. In our opinion, it would not be reasonable to treat this decision as supporting the claim advanced by the House that the conclusive character of its general warrant forms an intrinsic part of its privilege. The learned Chief Justice, in fact, did not consider the question on its merits for himself. He felt bound by the observations made by Lord Cairns and merely set out, in his opinion, the effect of the decision in the Case of the Sheriff of Middlesex (113 E.R. 419). Moreover, another aspect of the matter cannot be ignored. The learned Chief Justice Dixon was dealing with the construction of section 49 of the Australian Constitution, and, as Gwyer C.J. observed in In re The Central Provinces and Berar Act No. XIV of 1938 ([1939] F.C.R. 18), the decisions of other courts require greater caution when applied to federal and provincial powers, because the final analysis must depend upon the words of the Constitution that the Court is interpreting; since no two constitutions are identical, it is extremely unsafe to assume that a decision on one can be applied without qualification to another.

The Court referred to the Central Provinces and Berar Act No. XIV of 1938, reported in [1939] F.C.R. 18, and cited its observation that “there are few subjects on which the decisions of other Courts require to be treated with greater caution than that of federal and provincial powers, for in the last analysis the decision must depend upon the words of the Constitution which the Court is interpreting; and since no two Constitutions are in identical terms, it is extremely unsafe to assume that a decision on the of them can be applied without qualification of another.” The learned Chief Justice further explained that this caution remains appropriate even where the words or expressions employed in two cases are identical, because a word or phrase may acquire a different colour from its context and consequently bear a different sense, as noted on page 38 of the cited work.

These observations were held to be especially pertinent to the question presently before the Court. The Court noted that although the wording of section 49 of the Australian Constitution is substantially similar to the wording of article 194(3) of the Indian Constitution, there are clear points at which the relevant provisions of the Indian Constitution diverge from those of the Australian Constitution. For example, article 32 of the Indian Constitution grants citizens the fundamental right to move this Court, meaning that the very right to approach the Court for violation of fundamental rights is itself a fundamental right. The Court observed that the effect of article 32, together with the provisions of article 226, has already been examined in relation to the construction of the latter part of article 194(3). In contrast, the Australian Constitution contains no counterpart to article 32, and likewise there is no provision in the Australian Constitution corresponding to article 211 of the Indian Constitution. The presence of these distinctive features, the Court explained, creates a substantial difference in the meaning and denotation of similar words used in section 49 of the Australian Constitution and article 194(3) of the Indian Constitution.

The Court further observed that the declaration referred to in section 49 of the Australian Constitution may not be subject to the same limitations that would govern a law enacted by the Indian legislatures under the first part of article 194(3). These material differences in the constitutional texts, the Court held, require careful attention to the warning expressed by Gwyer C.J. in 1938. Consequently, the Court concluded that it would not be safe or reasonable to rely heavily on the observation made by Dixon C.J. in the Richards case (92 C.L.R. 157) when addressing the present issue of privileges.

Lord Parker C.J., in the decision reported as In re Hunt ([1959] 1 Q.B.D. 378), observed that even when a contempt commitment was made by a superior court of record, a court that was hearing a habeas‑corpus petition retained the competence to examine the legality of that contempt. This competence existed despite the fact that the warrant of commitment was described as a general or nonspecific warrant. In addressing the submissions of Kenneth Douglas Hunt, who had been committed for contempt by Wynn‑Parry J., Parker C.J. stated: “It may be that the true view is, and I think the cases support it, that though this Court always has power to inquire into the legality of the committal, it will not inquire whether the power has been properly exercised.” He added, however, that in the matter before him he was satisfied that the application should be dismissed on its merits. These observations indicate that, when exercising its habeas‑corpus jurisdiction, a court in Westminster possessed the authority to scrutinise the legality of a commitment even though that commitment originated from another superior court of record. If this interpretation were correct, it could not be taken for granted that contemporary Westminster courts would inevitably accept a claim by the House of Commons that its general warrants were beyond judicial review.

Proceeding on the assumption that the House of Commons claimed a particular right, the claim could be grounded on one of two premises. The first premise was that, as a component of the High Court of Parliament, the House of Commons functioned as a superior court of record and therefore any general warrant for contempt issued by it was to be treated as conclusive by the courts of Westminster Hall. The second premise was that, over time, the assertion of a conclusive character for such a general warrant had become an incidental and integral element of the privilege itself. The immediate question that arose was whether this right could be said to have been conferred upon the House in the present proceedings under the latter part of Article 194(3). The Court first examined the basis relating to the status of the House of Commons as a superior court of record. It considered whether any legal fiction introduced by Article 194(3) could permit the House to claim such a status. The Court concluded that the answer could not be affirmative. The legislative history preceding the matter did not support the notion that the State Legislatures were superior courts of record under the Constitution Act of 1935. Section 28 of that Act, which dealt with the privileges of the Federal Legislature, was particularly relevant. Section 28(1) corresponded to Article 194(3) of the present Constitution, while Section 28(2) provided that, in other respects, the privileges of members of the Chambers would be as defined by an Act of the Federal Legislature and, until such definition, would remain as they had been immediately before.

In that portion of the judgment the Court observed that the privileges enjoyed by members of the Indian Legislature at the time of the Federation’s creation were derived from the provisions of the Constitution Act of 1935, specifically Section 28, which dealt with the privileges of the Federal Legislature. The Court noted that before the enactment of the 1935 Act, members of the Indian Legislature could not claim to be members of a superior Court of Record. Section 28(3) of that Act expressly stated that nothing in any existing Indian Act, and notwithstanding any other provision of the section, could be interpreted as giving the Federal Legislature the authority to confer upon either Chamber, or upon both Chambers sitting together, or upon any committee or officer of the Legislature, the status of a Court, or any punitive or disciplinary powers beyond the power to remove or exclude persons who violated the rules, standing orders, or who behaved in a disorderly manner. The Court further explained that Section 28(4) allowed the Federal Legislature to provide, by a federal statute, for the punishment of persons who, after being convicted by a Court, refused to give evidence or produce documents before a Committee of a Chamber when such a demand was duly made by the Chairman of the Committee. From these provisions, the Court concluded that the Indian Legislature had no authority to punish for contempt arising outside the four walls of its Legislative Chamber. The Court then turned to Section 71 of the same Act, which governed Provincial Legislatures, and observed that it contained analogous provisions in its clauses (2), (3) and (4). After the Indian Independence Act of 1947 was enacted, the Court explained that a series of amendment orders to the Government of India Act of 1935, including the Third Amendment Order of 1948, deleted subsections (3) and (4) of Section 28 and amended subsection (2). The effect of those amendments, according to the Court, was that members of the Federal Chambers could, until such time as their privileges were defined by a Federal statute, claim the privileges that members of the House of Commons had enjoyed immediately before the Federation was formed. The Court found it noteworthy that the corresponding subsections (3) and (4) of Section 71 were left unchanged. The Court stated that deciding whether the deletion of subsections (3) and (4) and the amendment of subsection (2) of Section 28 conferred upon the Federal Legislature the same status as the House of Commons was not a question that required determination in the present Reference. The Court observed that, at first glance, it might appear that granting the privileges of the House of Commons to members of the Federal Legislature did not automatically make the Federal Legislature identical to the House of Commons for every purpose, but that issue was not necessary for resolution in these proceedings. Finally, the Court remarked that the position concerning the Provincial Legislatures at the relevant time was absolutely clear, and there …

In this context, the Court observed that there was no basis for asserting that, at the moment the Constitution was enacted, a Provincial Legislature could assert the same status as the House of Commons and, consequently, claim the position of a superior Court of Record. This observation constitutes the constitutional background underlying Article 194(3) with respect to the Provincial Legislatures. When this background is taken into account, the Court found it difficult to accept the contention that the latter portion of Article 194(3) was intended to bestow upon the State Legislatures of India the status of a superior Court of Record. The Court noted this point with reference number 123. In further consideration, the Court emphasized that the superior Court of Record status accorded to the House of Commons was rooted in specific historical facts previously discussed. It recalled that, in English history, the Parliament originally performed judicial functions during its early development. Moreover, the Court highlighted that the House of Lords continues to serve as the highest court of law in England, and that, to this day, both Houses retain powers of impeachment and attainder. The Court concluded that such historical facts could not be transplanted into Indian law through any legal fiction. While legislative enactments may create legal fictions concerning rights, obligations, or retrospective effect, the Court stressed that the law cannot create fictions that import historical facts from another jurisdiction. This reasoning was recorded under reference number 124.

The Court further explained that, regarding the superior Court of Record status granted to the House of Commons, another element of English history must be remembered. Historically, the House of Commons had to struggle for its existence against the King and the House of Lords, with the judiciary regarded as an instrument of the King and subordinate to the House of Lords, the principal adversary of the Commons. This led to a fierce conflict between the Commons on one side and the monarch and Lords on the other. The Court observed that no comparable historical background exists in India, and therefore no historical justification can be found for the basis upon which the House of Commons fought to deny the jurisdiction of the courts. This point, the Court said, is relevant when assessing whether the House in the present matter can claim the status of a superior Court of Record. Nonetheless, the Court acknowledged that the House does possess the power to punish for contempt committed outside its chamber, and on that limited ground it may lay claim to one of the rights that a court possesses, as indicated in reference number 125.

The Court explained that a Court of Record, as defined in Jowitts Dictionary of English Law, is a tribunal whose acts and judicial proceedings are permanently recorded for posterity and which possesses the authority to impose fines and imprisonment for contempt of its own authority. The Court observed that neither the House of Commons nor any of the Legislative Assemblies in India have ever performed a judicial function, and that the constitutional framework of India provides no basis for treating these bodies as Courts of Record in any sense. Consequently, the Court held that the justification relied upon by English courts for accepting a general warrant issued by the House of Commons on the premise that it originated from a superior Court of Record does not exist in the present Indian context. Therefore, it would be unreasonable to assert that the power to give a general warrant a conclusive character, a power that English courts accepted by agreement for the House of Commons, is vested in the Indian House. On this basis, the Court rejected the claim advanced by the House.

Assuming, for the sake of argument, that the right claimed by the House could be regarded as an intrinsic part of the privileges of the House of Commons, the Court noted that the next question would be whether such a right has been conferred upon the House by the latter portion of Article 194(3) of the Constitution. The Court then examined whether this segment of the alleged privilege is consistent with the substantive provisions of the Constitution. Having already referred to Articles 32 and 226, the Court focused on Article 32 because it expressly emphasizes the fundamental right of Indian citizens to approach the Supreme Court when their fundamental rights are infringed, whether by the Legislature or the Executive. Article 32 contains no carve‑out for any form of encroachment, and the Court found it illogical to argue that even if the House’s claimed right conflicted with a citizen’s fundamental rights, the aggrieved citizen would be barred from invoking Article 32. The Court stressed that the absolute constitutional guarantee provided by Article 32 admits no exception, and the Constitution does not intend to make any exception on the basis of powers or privileges vested in the legislatures of the country.

The Court further clarified that it does not intend to undertake a comprehensive discussion on the applicability of every fundamental right where legislative powers and privileges might be exercised against an individual citizen. The analysis proceeds on the premise that Article 19(1)(a) is not applicable, whereas Article 21 is applicable. The Court acknowledged that future circumstances might require examination of whether Article 22 could be contravened by the exercise of the power or privilege under Article 194(3). For the present purpose, however, the Court considered Article 20. If Article 21 is applicable, Article 20 may also be relevant, raising the question of whether a citizen could invoke the Supreme Court under Article 32 when alleging a breach of his or her fundamental rights under Article 20 or Article 21.

In this case, the Court considered whether a citizen whose fundamental right under article 20 or article 21 was alleged to have been violated could approach the Supreme Court under article 32. For the purpose of the discussion, it was sufficient that the alleged violation concerned article 21. The Court observed that when a citizen files a petition under article 32 claiming that his article 21 right has been infringed, the Court is obligated to examine the substance of that claim. Such an examination inevitably raises the issue of whether the citizen’s personal liberty was taken away in accordance with the procedure established by law. The Court noted that this precise question had been addressed earlier in the case of Pundit Sharma (1959) Supp. 1 S.C.R. 806. Although the earlier decision had ultimately favored the legislature, the Court held that the result of that decision was irrelevant to the present analysis. The Court explained that if a citizen alleges that his liberty was deprived not according to law but for arbitrary or malicious reasons, the Court must assess the validity of that allegation. The Court further stated that it would be untenable to argue that the existence of a general warrant against the citizen automatically bars any further judicial scrutiny. Consequently, the Court concluded that the constitutional guarantee provided by article 32 overrides any interpretation of the latter part of article 194(3) that would allow the House to claim a power or privilege inconsistent with article 21. The Court also reminded that the rules the House adopts to govern its procedure and business must comply with the constitutional provisions of article 208(1). Turning to article 211, the Court examined the effect of that article on the House’s claim. The Court held that if the House’s claim were upheld, it could issue a general warrant against a judge without any judicial review of the warrant’s validity. The Court found such a situation anomalous because it would permit the judiciary to review legislative actions while preventing it from reviewing legislative actions that encroach upon citizens’ fundamental rights. The Court warned that accepting the theory that a general warrant is conclusive would seriously threaten the principle of judicial independence. Therefore, the Court affirmed that article 211, when read with article 194(3), also defeats the House’s contention.

In this case, the Court observed that if the jurisdiction conferred on the High Courts by Article 226 and the jurisdiction conferred on the Supreme Court by Article 32 were absolute and without any exceptions, then it would be untenable to argue that a citizen is barred from invoking those jurisdictions even when his fundamental rights have been infringed. The existence of such judicial power necessarily implies that every citizen possesses a corresponding right to approach the Court for protection; otherwise the statutory power granted to the High Courts and the Supreme Court would be rendered essentially meaningless. The Court reminded that the constitutional grant of judicial power to the High Courts and the Supreme Court is intended primarily for the protection of fundamental rights, and that the very grant of that power inherently includes the citizen’s right to seek its aid in appropriate cases. The Court then referred to the decision in In re Parliamentary Privilege Act, 1770 ([1985] A.C. 331). In that case, the Privy Council was asked to determine whether the House of Commons would be acting contrary to the Parliamentary Privilege Act, 1770 if it treated a writ against a Member of Parliament, arising from a speech or proceeding in Parliament, as a breach of its privileges. The question created some uncertainty, and consequently the matter was referred to the Privy Council for opinion. The Privy Council answered the limited question in favour of Parliament. While limiting its answer to the specific issue, the Privy Council added a precautionary note stating that it expressed no view on whether the proceedings described in the introductory paragraph constituted “a proceeding in Parliament,” a question not before it, nor on whether the mere issuance of a writ would ever constitute a breach of privilege. Viscount Simonds, speaking for the Privy Council, explained that this approach was taken because of the inalienable right of subjects of Her Majesty to seek redress in the courts for their grievances, and that the Court would not prejudice any suit in which a plaintiff sought relief. The inalienable right mentioned by Viscount Simonds is implicitly embodied in Articles 226 and 32, and its existence conflicts with the House’s contention that a general warrant should be treated as conclusive in all courts, and also conflicts with the House’s claim that Keshav Singh committed contempt by invoking the High Court under Article 226. Finally, the Court found it pertinent to mention a resolution adopted by the House of Lords in 1704. That resolution declared that it was an unlawful exercise of power for the House of Commons to deter electors from bringing actions before ordinary courts when they were deprived of voting rights, and to intimidate attorneys, solicitors, counsellors, and serjeants‑at‑law from initiating or conducting such actions by branding such conduct as contempt of the House of Commons. The resolution thus characterized such attempts to control the law and obstruct justice as a manifest assumption of power, and warned that such conduct would subject the property of Englishmen to the arbitrary will of the House of Commons.

In the historical discussion, it was observed that when a person voted that pleading in such cases constituted a breach of privilege of the House of Commons, that act represented a clear assumption of power to control the law, to obstruct the administration of justice, and to expose the property of Englishmen to the arbitrary decisions of the House of Commons. The observation referred to a response to a resolution that the House of Commons had passed in the same year, which declared that any individual who moved a court seeking appropriate relief in matters covered by that resolution would be deemed to be in contempt of the House. The text explained that these resolutions and the opposing counter‑resolutions demonstrated the intense conflict between the House of Commons and the House of Lords during that tumultuous period. Moreover, the commentary highlighted a key point of the dispute: if a question concerning the competence of the House of Commons to punish a person for invoking the ordinary courts’ jurisdiction had been referred to the House of Lords, the latter would unquestionably have rejected such a claim. This apprehension on the part of the House of Commons explained its refusal to recognise the jurisdiction of courts that, in the final analysis, were subordinate to the House of Lords.

Section 30 of the Advocates Act, 1961 (25 of 1961) was then described as granting every advocate the statutory right to practice in all courts, including the Supreme Court, before any tribunal or person legally authorised to take evidence, and before any other authority or person before whom the advocate is, by virtue of any law then in force, entitled to practice. In a similar manner, Section 14 of the Bar Councils Act was noted as recognising an equivalent right. The narrative pointed out that when a citizen possesses the right to approach the High Court or the Supreme Court to protect his fundamental rights, the statutory right of an advocate to assist that citizen becomes operative and aids the enforcement of those fundamental rights. It was emphasized that the legal profession plays a vital role in safeguarding the fundamental rights guaranteed to citizens.

The discussion further asserted that, just as the jurisdiction of the judiciary to consider matters presented under Article 226 or Article 32 cannot be subjected to the powers and privileges of the House under Article 194(3), the citizens’ right to approach the judiciary and the advocates’ right to assist in that process must likewise remain free from control by Article 194(3). This arrangement was described as an integrated scheme for enforcing fundamental rights and for maintaining the rule of law in the country. Consequently, the conclusion was expressed that the specific right claimed by the House as part of its power or privilege conflicts with the substantive provisions of the Constitution and cannot be said to be included within the scope of Article 194(3).

In this part of the judgment the Court first addressed the complaint raised by counsel for the petitioner, namely that the respondent Keshav Singh had allegedly acted unlawfully by impleading the House in a habeas‑corpus petition that had been presented before the Lucknow Bench. The Court observed that the allegation lacked any substantive basis. It held that it could not be said that the House was improperly joined by Keshav Singh because he was entitled to bring the House as a party on the ground that his detention stemmed from an order issued by the House itself. Accordingly, the House could be regarded as having responsibility for, and control over, the commitment of the respondent. The Court supported this view by referring to the English decisions The King v. The Earl of Crewe, Ex parte Sekgome ([1910] 2 K.B. 576) and The King v. Secretary of State for Home Affairs, Ex parte O’Brien ([1923] 2 K.B. 361). Moreover, the Court stated that the fact that Keshav Singh had joined the House to his petition was irrelevant to the principal issue, namely whether the House possessed the power to initiate contempt proceedings against Judges, an Advocate, or a party. The relevance of that procedural step, the Court concluded, did not affect the determination of the House’s authority in the contempt context.

The Court then turned to the core question concerning the interpretation of the latter part of Article 194(3) of the Constitution. After considering the guidance that must be drawn from other relevant constitutional provisions, the Court held that the specific power claimed by the House—that its general warrants should be deemed conclusive—could not be said to fall within the scope of the latter part of Article 194(3). In expressing this view, the Court also noted a tentative doubt about whether the House’s asserted power to issue a general inspecting warrant was compatible with sections 554(2)(b) and 555 of the Code of Criminal Procedure. The Court explained that, under English law, general warrants are normally issued in respect of commitments for contempt by superior courts of record, and that the controversy surrounding this issue rested on the premise that the right to issue such a warrant, recognized for superior courts of record, should be extended to the House of Commons because it forms part of the High Court of Parliament and is itself a superior court of record. Before concluding this discussion, the Court identified two general considerations. First, it noted that counsel for the petitioner had argued that the House’s alleged power to issue a conclusive general warrant for contempt was essential for its efficient functioning, and had asked the Court to evaluate the matter from that perspective. While acknowledging that English courts have, by agreement, convention, or comity, recognized such a right, the Court cautioned that it is not correct to assume that every democratic legislature possesses an identical power. The Court indicated that this point would be illustrated by reference to another legislative system, thereby signaling the continuation of its analysis.

In examining the power claimed by the House of Parliament, the Court referred to the constitutional scheme of the United States for comparative purpose. The Court explained that Article 1, Section 5 of the United States Constitution does not grant the American legislature any general authority to issue a warrant for contempt. Instead, the provision merely states that each House shall judge the elections, returns and qualifications of its own Members, and that a majority of each House shall constitute a quorum for conducting business. The text further allows a smaller number of Members to adjourn the House from day to day and to authorize the compelling of attendance of absent Members, using such penalties as each House may prescribe. The Constitution also empowers each House to determine its own rules of procedure, to punish its Members for disorderly conduct, and, with a two‑thirds concurrence, to expel a Member. The Court observed that conduct amounting to contempt committed outside the physical chamber by a person who is not a Member does not fall within the jurisdiction of the American legislature. Citing Willis, the Court noted that punishment for contempt is fundamentally a judicial function; nevertheless, the United States Congress may punish contempt only insofar as it pertains to maintaining order among its Members, compelling their attendance, protecting the chambers from assault or disturbance (excluding slander and libel), adjudicating election disputes, conducting impeachment proceedings, and obtaining information from other departments to assist its legislative work. The Court added that no authority has ever argued that the American Congress is ineffective because it lacks the specific general‑warrant power claimed by the Indian House.

The Court then turned to the Indian context, noting that India possesses several State Legislatures in addition to the Parliament. It said that if the broad power asserted by the House were accepted, it could give rise to anomalous and embarrassing situations. For example, the Court imagined a scenario in which a legislator, protected by absolute freedom of speech, makes a speech in his own chamber that another legislative chamber perceives as contemptuous. The latter chamber might then issue a general warrant and punish the speaker, creating a conflict between the two bodies. The Court explained that such a possibility was one reason the framers of the Constitution required legislatures to enact statutes defining their powers, privileges and immunities, because they anticipated that any unresolved claims would eventually be subject to judicial scrutiny. Until such statutes are enacted, the Constitution provides certain powers, privileges and immunities through the latter part of Article 194(3). The Court affirmed that interpreting this portion of the article falls within its jurisdiction, and that in doing so it must consider other relevant and material provisions of the Constitution. The Court also acknowledged that counsel had drawn attention to reports prepared by the Privileges Committees of the Lok Sabha and the Council of States, although it emphasized that those reports represent agreements rather than binding law and therefore cannot govern the Court’s construction of the constitutional provision.

On May 22 1954 a resolution was passed with the purpose of preventing any embarrassing or anomalous situations that might arise from the use of legislative powers and privileges against members of the respective houses. The record further indicated that almost every Legislature in India had adopted similar resolutions. The Court observed that such resolutions constitute political agreements rather than legally enforceable rules, and consequently they may lose their effectiveness when different political parties control different State governments. In construing the relevant clause of Article 194(3) the Court held that these agreements could not be given any substantial weight. 137. In the course of the arguments presented, counsel for the petitioner placed great emphasis on the proposition that, in habeas‑corpus proceedings, the High Court did not possess jurisdiction to grant interim bail. The Court noted that English practice recognises that, where a habeas‑corpus petition is filed against a commitment order issued by the House of Commons on the ground of contempt, the courts ordinarily refuse to award bail. Historically, for more than a century the House of Commons itself has dealt with returns in such proceedings, and the prevailing rule has been that persons committed for contempt are not permitted to obtain bail. The Court found it difficult to accept that the Indian situation must follow this English rule exactly. It questioned that if Article 226 confers on the Court the power to examine the validity of a commitment order even though that order originates in the House, then the same provision cannot be said to deprive the Court of the authority to issue an interim order in the habeas‑corpus proceeding. The Court referred to its earlier decision in State of Orissa v. Madan Gopal Rungta and Others ([1952] S.C.R. 28), where it held that interim relief may be granted only as ancillary aid to the principal relief that may be awarded after a final determination of the party’s rights. The Court also cited Maxwell’s observation that when a statute confers jurisdiction, it implicitly confers the power to execute all acts and employ all means necessary to give effect to that jurisdiction (Maxwell on Interpretation of Status, 11th ed., p. 350). On that basis, the Court concluded that the argument relying on the provisions of the Criminal Procedure Code and on the Privy Council decision in Lala Jairam Das and Others v. King Emperor (72 I.A. 120) did not provide any assistance to the petitioner’s case.

138. The Court then clarified that its discussion was confined to the question of jurisdiction and did not extend to an assessment of whether the exercise of that jurisdiction was proper or reasonable. It further explained that, in the context of a superior Court of Record, it is the duty of the Court itself to determine whether any matter falls within its own jurisdiction. Unlike a court of limited jurisdiction, a superior Court possesses the inherent authority to decide questions concerning its own jurisdictional scope. Accordingly, the Court rejected the proposition that an order granting interim bail could be said to exceed the High Court’s jurisdiction and therefore be void. The Court also observed that the validity of the bail order is unrelated to any allegation that the Judges, in granting the order, may have committed contempt of the House. Consequently, the superior Court is fully entitled to determine the existence and extent of its jurisdiction in such matters.

The Court explained that a superior court is entitled to decide questions concerning its own jurisdiction. It quoted Halsbury, stating that “prima facie no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court” (Halsbury’s Laws of England, Vol., p.349). Accordingly, the Court declined to accept the argument that the High Court had exceeded its jurisdiction by granting interim bail, and therefore held that the order could not be declared void on that ground. Moreover, the Court observed that the legitimacy of the bail order was unrelated to any question of whether the judges, in granting that order, had committed contempt of the House.

The Court then turned to a further incidental point. It recalled that the habeas corpus petition had been presented before the Lucknow Bench at two o’clock in the afternoon on 19 March 1964. Both parties, represented by their respective counsel, had agreed that the matter should be heard at three o’clock the same day. Nonetheless, the House that had been impleaded to the writ petition, together with the other respondents for whom Mr Kapur had earlier appeared, were not present at the scheduled time. The Court consequently directed that notice on the petition be issued to the respondents and ordered the release of the petitioner on bail subject to the terms and conditions previously specified. It was this bail order that gave rise to the later developments. The Court noted that, before hastily issuing warrants against the judges of the Lucknow Bench, the House failed to follow the long‑standing practice of the House of Commons, which ordinarily instructs its lawyer either to file a return or to seek time to do so, and to request that the court stay its action until the return is filed. The Court observed that, in England, when commitment orders of the House of Commons are challenged before the Westminster courts, the House invariably makes a return and, if the warrant is general and unspecific, it is described as such in the return and the warrant is produced. The Court suggested that had this established procedure been observed in the present proceedings, the House could have been said to have exercised its powers and privileges in conformity with the customary convention followed by the House of Commons for more than a century. However, that procedure was not observed, and once the House became aware that a bail order had been passed, it proceeded to consider whether the judges themselves were in contempt.

The Court observed that no contempt could be said to have been committed by the Judges. It noted that Mr Kapur had appeared before the Court at two o’clock in the afternoon on behalf of all the respondents and had agreed that the matter would be taken up at three o’clock. Accordingly, the Court held that Mr Kapur was required to appear at three o’clock and to either file a return or request a postponement on behalf of the House. The Court further stated that if the House had not instructed Mr Kapur to take that step and if the Court had no information as to why Mr Kapur failed to appear, it would be unfair to hold the Court responsible for issuing notice of the petition and granting bail to the petitioner. The Court clarified that it was unnecessary to examine the communications between Mr Kapur and the House or the reasons for his absence at three o’clock in representing the House and the other respondents. The Court recorded that Mr Kapur’s failure to appear at three o’clock introduced an unfortunate element into the proceedings and was partly responsible for the order that the Court issued. The Court pointed out that, at the time it issued the order and released the petitioner on bail, it was unaware that the warrant under which the petitioner had been sentenced was a general warrant, and no suggestion was made that, in cases of a general warrant, the Court lacked authority to grant bail. The Court emphasized that this circumstance could not be ignored when considering the House’s claim that the Judges had committed contempt by releasing the petitioner on bail. The Court further clarified that its answers would not be limited to this narrow view because questions three and five were broad and required correspondingly broad answers. It noted that the broader material questions had been fully argued before it and that the President, by making the present Reference, intended that the Court answer all the questions without excluding any relevant aspect merely because such aspects did not arise strictly from the particular facts of the present proceedings. In its concluding observation, the Court reiterated that throughout its discussion it had consistently highlighted that the central issue was the House’s right to assert that a general warrant it issued in respect of alleged contempt by a citizen who was not a Member of the House, and who acted outside the four walls of the House, was conclusive; it was on that basis that the House had chosen to claim that the Judges, the Advocate and the party had committed contempt by reference to their conduct.

In the habeas corpus petition that was pending before the Lucknow Bench of the Allahabad High Court, the Court observed that it had previously held that, in the present matter, no contempt had been committed by either the Judges, the Advocate, or the party involved. On the basis of that finding, the Court concluded that the Allahabad High Court was both authorised and obligated to consider the petitions that had been filed with it by the two Judges and by the Advocate. The Court further stated that the High Court possessed the jurisdiction to issue interim orders that would prohibit the further execution of the orders that had been impugned and that had been passed by the Legislative Assembly. Accordingly, the High Court could lawfully entertain those petitions and could lawfully restrain the implementation of the contested legislative orders while the petitions were being determined.

The Court then turned to the broader issue concerning the exercise of the power to punish for contempt. It reminded that judges are constantly cautioned by the warning addressed to them by Lord Atkin in Andre Paul v. Attorney‑General of Trinidad (A.I.R. 1936 P.C. 141). Lord Atkin had observed, “Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though out‑spoken comments of ordinary men.” The Court stressed that the power to punish for contempt, however extensive, must always be exercised with caution, wisdom and circumspection. It warned that frequent or indiscriminate use of that power, especially when driven by anger or irritation, would not preserve the dignity or status of the court and could, at times, damage it. The Court explained that wise judges protect the dignity of their office by earning public respect through the quality of their judgments, by displaying fearlessness, fairness and objectivity, and by observing restraint, dignity and decorum in their conduct. It further observed that the same principles that govern the judiciary should also apply to legislatures. Having discussed all the relevant points that had been argued before it and having recorded its conclusions, the Court said it was ready to answer the five questions referred to it by the President. Regarding the first question, the Court found that, based on the facts and circumstances, the Lucknow Bench of the High Court of Uttar Pradesh, composed of Justices N. U. Beg and G. D. Sahgal, was competent to entertain and adjudicate the petition of Keshav Singh that challenged the legality of the imprisonment imposed on him by the Legislative Assembly of Uttar Pradesh for alleged contempt and infringement of its privileges, and to order the release of Keshav Singh on bail pending disposal of that petition. Concerning the second question, the Court held that, given the facts and circumstances, Keshav Singh, by causing the petition to be presented on his behalf to the High Court of Uttar Pradesh, Mr. B. Solomon, by presenting the petition, and the two Honourable Judges, by entertaining and dealing with the petition and ordering Keshav Singh’s release on bail pending disposal of the petition, did

In the matter before the Court, it was held that the judges of the Lucknow Bench of the High Court of Uttar Pradesh, together with the advocate who presented the petition on behalf of Keshav Singh, did not commit contempt of the Legislative Assembly of Uttar Pradesh. On the factual matrix, the Court further found that the Legislative Assembly was not empowered to order the production of the two judges and the advocate before it in custody, nor could it demand their explanation on the ground of contempt. Conversely, the Court concluded that the Full Bench of the High Court of Uttar Pradesh was within its jurisdiction to entertain the petitions filed by the two judges and the advocate, and to issue interim orders restraining the Speaker of the Assembly and the other respondents from taking any action against them. In answering the broad question posed by the President, the Court prefaced its response by noting that its answer applied only to situations where contempt is alleged against a private citizen, who is not a member of the legislature, for acts committed outside the four walls of the legislative chamber. Accordingly, a High Court judge who entertains or decides a petition challenging any legislative order imposing a penalty, issuing a process for contempt, or infringing the privileges and immunities of the legislature, does not thereby commit contempt of that legislature. Likewise, the legislature does not possess the competence to initiate proceedings against such a judge in the exercise of its powers, privileges, or immunities. The Court deliberately omitted discussion of any other privileges or immunities of the House that might be relevant beyond the scope of the present reference. This reference arose under Article 143 of the Constitution, prompted by a sharp and continuing conflict between the Uttar Pradesh Legislative Assembly and the State High Court. The conflict originated when the High Court ordered the release on bail of a person whom the Assembly had imprisoned for contempt. The Assembly regarded the judges’ order and the advocate’s petition as contemptuous acts and consequently commenced proceedings against them, while the High Court, in turn, issued orders restraining the Assembly and its officers from imposing any sanctions, asserting that the judges’ and advocate’s conduct did not constitute contempt.

In this matter the Court set out the factual matrix that produced the dispute between the Legislative Assembly of Uttar Pradesh and the High Court of that State. The Assembly had adopted a resolution ordering that a reprimand be issued to a certain individual named Keshav Singh because he was alleged to have committed contempt of the Assembly by publishing a pamphlet that purportedly defamed one of its members. The legality of that resolution was not questioned before this Court; the focus was solely on the subsequent events. Singh, a resident of Gorakhpur, repeatedly failed to appear before the Assembly, which was then meeting in Lucknow, to receive the reprimand, claiming that he could not obtain the money required for the railway fare needed to travel to the capital. Consequently the Speaker issued a warrant authorising the Marshal of the Assembly to take Singh into custody, and Singh was produced at the Bar of the House on 14 March 1964. The Speaker asked Singh to state his name on several occasions, but Singh refused to answer any question. He remained with his back turned to the Speaker, showing what the Assembly regarded as gross disrespect, and he declined to turn round when directed to do so. After the reprimand was formally administered, the Speaker drew the Assembly’s attention to a letter dated 11 March 1964 that Singh had written to him. In that letter Singh protested the reprimand, declared that he could call a corrupt person corrupt without hesitation, asserted that the contents of his pamphlet were correct, and described the issuance of the warrant against him as a brutal assault on democracy. Singh admitted that he had authored the letter. In response the Assembly passed a resolution sentencing Singh to seven days’ simple imprisonment for having composed a letter in language that constituted contempt of the House and for his disrespectful conduct. A general warrant was then issued to the Marshal of the House and to the Superintendent of the District Jail in Lucknow, stating that the Assembly had decided that Singh be sentenced to simple imprisonment for seven days for the offence of contempt, and ordering that Singh be detained in the District Jail for that period. The warrant, however, did not specify the particular acts that amounted to contempt. Singh was taken to the jail on the same day and placed in custody. On 19 March 1964 an advocate named B. Solomon filed a petition for a writ of habeas corpus before a Bench of the Uttar Pradesh High Court, then constituted by Justices Beg and Sahgal, seeking Singh’s release on the ground that his detention was without legal authority and was malicious. This Bench, referred to as the Lucknow Bench, entertained the petition and subsequently issued an order releasing Singh on bail, admitting the petition and directing that notice be served upon the respondents named therein. Singh was therefore promptly released on bail, an order that interfered with the Assembly’s imprisonment sentence by allowing Singh to leave custody before completing the term imposed by the House.

In the proceedings, the petition that had been filed was regarded as being made under Article 226 of the Constitution and section 491 of the Code of Criminal Procedure. On that very same day, the judges ordered that Keshav Singh should be released on bail, that the petition be admitted, and that notice be issued to the respondents named therein. Consequently, Keshav Singh was promptly released on bail. The court noted that this order interfered with the sentence of imprisonment that the House had imposed, because it allowed Singh to be released before he had served the full term of his punishment. On 21 March 1964, the Assembly passed a resolution declaring that Justice Beg, advocate B. Solomon and Keshav Singh had committed contempt of the House. The resolution further directed that Singh be taken into custody immediately and confined in the District Jail for the balance of his sentence, that Justices Beg and Sahgal as well as B. Solomon be taken into custody before the House, and that Singh be brought before the House after he had served the remainder of his term. Warrants to give effect to these directions were issued on 23 March 1964 to the Marshal of the House and to the Commissioner of Lucknow. On that same day, Justice Sahgal filed a petition under Article 226 of the Constitution in the High Court of Uttar Pradesh at Allahabad, seeking a writ of certiorari to set aside the Assembly’s resolution of 21 March 1964 and to obtain other writs restraining the Speaker, the Marshal of the Assembly, and the State Government from carrying out that resolution and the associated orders. The petition did not refer to the warrants, perhaps because the warrants were issued after the petition was presented or because the petitioner was unaware of their issuance. All the judges of the High Court, except Justices Sahgal and Beg, heard the petition and, on the same day, issued an order staying the implementation of the Assembly’s resolution. Similar petitions were filed by B. Solomon, Justice Beg and other parties, including the Avadh Bar Association, and comparable orders were granted in those cases as well. On 25 March 1964, the Assembly recorded an observation that its resolution of 21 March 1964 was not intended to determine that the four persons had committed contempt without first granting them a hearing; instead, the Assembly resolved that the matter could be decided after allowing the named individuals an opportunity, in accordance with the rules, to explain their conduct. Pursuant to that observation, notices were issued on 26 March 1964 to Justice Beg, Justice Sahgal and B. Solomon, informing them that they could appear before the Committee at 10 a.m. on 6 April 1964 to make their submissions.

The warrants that had been issued on 23 March 1964 were never carried out, and they were subsequently withdrawn because of the notices that had been sent. The present reference was made on 26 March 1964, and at that time the Assembly withdrew the notices dated the same day, indicating that the two judges, together with Solomon and Keshav Singh, no longer needed to appear before the Privilege Committee as originally required. These events are recorded in the recitals that form part of the order of reference, and the record presents them as factual background for the matter. However, a dispute arises concerning the precise factual statement that is contained in those recitals and the way it characterizes the Assembly’s resolution. The recitals state that on 21 March 1964 the Assembly resolved that the two judges, Solomon and Keshav Singh, had by their actions aforesaid committed contempt of the House. The phrase “actions aforesaid” was intended to refer to the filing of the petition by Keshav Singh on 19 March 1964 and to the order that was issued in response to that petition. The Assembly points out that the resolution does not specify exactly what conduct constituted the alleged contempt, and this observation is accepted as correct.

The principal issue that the reference raises is whether the Assembly possesses the authority to commit an individual for contempt by issuing a warrant that does not disclose the specific facts constituting the alleged contempt. If such a privilege exists, the question then becomes whether the courts have the power to review the legality of that committal and to determine whether it infringes upon the fundamental rights of the detained person. The Assembly asserts that it does possess such a privilege and contends that the intervention of the court in the present matter was beyond its jurisdiction. Consequently, the matter turns on whether the Assembly truly enjoys the requisite privilege; if it does not, then the actions taken by the High Court in this case would be completely proper. To address the question of privilege, the Assembly relies on clause three of Article 194 of the Constitution, which deals with the powers, privileges and immunities of a State legislature. For completeness, the first three clauses of Article 194 are set out at this stage, because they provide the constitutional backdrop against which the privilege claim must be evaluated. Clause (1) provides that, subject to the Constitution and to the rules and standing orders governing legislative procedure, every State legislature shall enjoy freedom of speech within its proceedings. Clause (2) provides that no member of a State legislature may be sued or otherwise proceeded against in any court for anything said or any vote cast by him in the legislature or its committees. The same clause further provides that no person shall be liable for any report, paper, vote or proceeding published by or under the authority of the House of such a legislature. Clause (3) declares that, in all other respects, the powers, privileges and immunities of a State legislature, its members and its committees shall be those that may be defined by law. Until such a law is enacted, those powers, privileges and immunities are deemed to be the same as the privileges enjoyed by the House of Commons at the commencement of the Constitution.

In this case the Court noted that clause (3) of Article 194 prescribes that, until the State Legislature defines its own rules, the powers, privileges and immunities of a State House of Legislature shall be those of the House of Commons of the Parliament of the United Kingdom together with those of its members and committees as they existed at the commencement of this Constitution. The Court further observed that Article 105 contains identical language with respect to the Central Legislature. It was not in dispute that the Uttar Pradesh Legislature had not enacted any law that defines the powers, privileges and immunities of its two Houses. Consequently the Assembly asserted that it was entitled to enjoy the same privileges that the House of Commons in England possessed on 25 January 1950. The Court then proceeded to make some general observations about the concepts of “powers, privileges and immunities” as they relate to the House of Commons or its members. It stated that, for the purpose of the present discussion, it was unnecessary to create a strict distinction between the three terms. Although the content of each term differs, the Court explained that the distinctions are not otherwise significant. For example, the Court said that the right of the House to exercise complete control over its internal proceedings may be described as a privilege; the power to punish a person for contempt may be more properly described as a power; and the protection that no member shall be liable for anything said in the course of parliamentary business may be described as a privilege as well. The Court then clarified that the matter before it concerned only the privileges of the House of Commons itself and not the privileges of its members or its committees. Nevertheless, the Court stressed that the privileges of the members and the committees are not fundamentally different from those of the House, except for the differences that arise from their respective contents.

The Court turned to the nature of the privileges of the House of Commons and indicated that the most authoritative source for understanding them is May’s Parliamentary Practice, a recognized work on English parliamentary law. The Court observed that for a long period there has been no dispute regarding the recognized privileges of the Commons. It explained that the nature of those privileges can be distinguished from the ordinary functions of the House. For instance, the financial powers of the House of Commons to introduce taxation legislation are often described as a privilege, but the Court held that this is not the type of privilege referred to by clause (3) of Article 194. The Court emphasized that the privileges of the House of Commons have a technical meaning in English parliamentary law and that the Constitution uses the term only in that technical sense. The Court reproduced the definition given in May’s Parliamentary Practice, 16th edition, page 42, which characterizes the privileges as “certain fundamental rights of each House which are generally accepted as necessary for the exercise of its constitutional functions.” The Court further stressed that the essence of those privileges is that they are ancillary to the very existence of the House of Commons itself. Finally, the Court observed that some privileges rest solely upon the law and custom of Parliament, and quoted the passage that states, “[s]ome privileges rest solely upon the law and custom of Parliament,” thereby underscoring that those privileges derive their authority from parliamentary law and custom rather than from statute.

The discussion noted that some parliamentary privileges have been created by statute, while others arise solely from the law and custom of Parliament; the latter category is the only one relevant to the present analysis. It explained that this latter class of privilege draws its authority from a body of law traditionally called Lex Parliamenti, which originates from parliamentary custom. Consequently, Lex Parliamenti is distinct from the English common law, which, although also based on custom, derives from a separate set of customs that govern the rest of the realm. The differing origins of these two bodies of law had historically produced serious disputes between Parliament and the courts, but those disputes have been resolved for many years and, apart from theoretical disagreements, the possibility of a new practical conflict is now regarded as remote. To illustrate the settled nature of the issue, the Court quoted Lord Coleridge C.J. in Bradlaugh v. Gossett ((1884) L.R. 12 Q.B.D. 271, 275), where he observed that it was unnecessary to decide whether, in every case and under every circumstance, the Houses alone act as judges of their own privileges in the sense that a resolution of either House would have the same effect on a court as an Act of Parliament. He warned that allowing judicial review of parliamentary privilege could generate grave complications and might lead, in some hypothetical situations, to the privileges of the Commons being determined by the Lords. Conversely, he cautioned that treating the resolutions of either House as absolutely beyond judicial inquiry could also produce serious difficulties. He concluded that, in theory, the question is extremely hard to solve, but in practice it is of little importance and, at present, does not arise. The passage was presented as sufficient to illustrate the nature of that historic dispute. The Court further stated that revisiting the old controversy would be unproductive and possibly harmful, because it would stir up settled matters that have remained clear for many years. Moreover, the Court emphasized that such a dispute cannot arise under this Constitution, since it is unquestionably the courts’ responsibility to interpret the Constitution and, specifically, Article 194(3). Accordingly, whenever a question arises in this jurisdiction under that article concerning whether the House of Commons possessed a particular privilege at the commencement of the Constitution, that question must be decided solely by the courts of law. The Court rejected the prospect of any “dualism” in which courts would contest a legislature’s claim to a privilege. In summary, the explanation of the nature of parliamentary privileges was intended to provide the necessary background for the issues before the Court.

In this case the Court proceeded to examine the privileges of the Assembly that were raised for determination, interpreting the term “privileges” to mean rights that are ancillary to the principal function of a legislature. The first privilege considered was the power to order commitment for contempt. The Court observed that there is no dispute that the House of Commons possesses such a power, and that the existence of the power is affirmed by all reported decisions and by the standard textbooks on parliamentary law. A leading text describes the power of commitment as “the keystone of parliamentary privilege”, adding that without this power the privileges of Parliament could not be self‑sustaining and would otherwise survive only by mere tolerance (May, p. 90). The Court also quoted the judgment in Burdett v. Abbott (104 E.R. 501, 559), where Lord Ellenborough C.J. remarked that it would be unreasonable to require the Speaker, armed with his mace, to appear before a grand jury to present an indictment for an insult offered to the House, and that the House must retain the power of self‑vindication and self‑protection in its own hands.

The Court affirmed that the possession of this commitment power by the House of Commons is therefore indisputable. To clarify the nature of the commitment power, the Court compared it with the concept of breach of privilege, noting that a breach of privilege may itself amount to contempt. For example, the unauthorized publication of the proceedings of the House of Commons in contravention of the House’s orders represents a breach of privilege and consequently constitutes contempt. However, the Court stressed that not every contempt is a breach of privilege. Offences that injure the dignity or authority of the House, although sometimes described as “breaches of privilege”, are more accurately classified simply as contempts. The Court explained that the authority to imprison for contempt is itself a privilege of the House of Commons, applicable whether the contempt arises from a direct breach of privilege or from an affront to the House’s dignity or authority (May, p. 43). The same source adds that the functions, privileges and disciplinary powers of a legislative body are tightly interrelated, with the privileges serving as the necessary complement of the functions and the disciplinary powers forming part of those privileges.

The Court further noted that there is no dispute that the power to commit for contempt may be exercised not only against a member of the House but also against persons who are external to the legislature (May, p. 91). The High Court, however, had contended that clause (3) of Article 194 of the Constitution did not confer on a State Legislature the power to commit for contempt because the Constitution, read in light of its basic scheme of division of powers, treats the power to commit to prison for contempt as essentially a judicial function. According to that argument, such a judicial function could be possessed only by a judicial body, namely the courts, and not by a legislative body such as the Assembly. Consequently, the High Court argued that Article 194(3) could not be interpreted as transferring to a State Legislature the judicial powers that the House of Commons enjoys in England as one of its parliamentary privileges.

In this matter, the Court held that the contention advanced by the High Court—that the State Assembly lacked the authority to commit a person for contempt—was entirely without foundation, because both established principle and judicial authority opposed it. The Court pointed out that earlier decisions, such as the judgment in In re Delhi Laws Act, had observed that the doctrine of separation of powers was not an essential feature of the Constitution, and even assuming that the Constitution were founded on that doctrine, the framers retained full power to assign judicial functions to a legislative body if they so chose. Consequently, the mere existence of a division of powers could not render a provision invalid merely because it conferred a judicial power on a legislature, and any suggestion to the contrary would be absurd. The only issue, therefore, was whether the Constitution‑makers had actually granted the power to commit for contempt to the State Legislatures, not whether they possessed the capacity to do so, since there was no constitutional limitation on their authority. The Court explained that this question could be answered only by examining the precise language employed by the Constitution‑makers in the text of the Constitution itself. Clause 3 of Article 194 states that “the powers, privileges and immunities of a House … shall be those the House of Commons,” and the Court found this language to be unmistakably clear. Such wording can have only one sensible interpretation: it was intended to transfer to the State Legislatures the same powers, privileges and immunities that the House of Commons enjoyed, including the power to commit for contempt. The Court rejected any attempt to obscure the plain meaning of these words by invoking an abstract theory of the division of powers. The Court further noted that this conclusion was fully endorsed by its earlier decision in Pt. M. S. M. Sharma v. Shri Sri Krishna Sinha, wherein Chief Justice Das, delivering the majority opinion of a five‑Judge Constitution Bench, held that State Legislative Houses possessed the power to commit for contempt and that nothing in the Constitution prohibited a legislative body from exercising judicial powers. Justice Subba Rao did not dissent on this particular point, and the Court also referenced two decisions of the Judicial Committee of the United Kingdom, which had held that provisions similar to Article 194(3) conferred on certain colonial legislatures the judicial power to commit for contempt.

In this matter the Court examined authorities concerning whether a legislative body possessed the judicial power to commit an individual for contempt. The Court first referred to the decision of the Legislative Assembly of Victoria v. Glass (1869‑71) 3 L.R.P.C. 560, where it was held that a statute which declared that “the Legislative Council of Victoria shall hold, enjoy, exercise such and the like privileges, immunities and powers as were held, enjoyed and exercised by the Commons Houses of the Legislature of the Australian Colony of Victoria” conferred upon the Victorian chamber the judicial authority to imprison for contempt. The Court then considered Queen v. Richards (92 C.L.R. 157), in which section 49 of the Commonwealth of Australia Constitution Act, 1901 provided that “the powers, privileges and immunities of the Senate and the House of Representatives … 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 the Court held that this provision gave the Australian Houses the power to commit a person to prison for contempt. The Court quoted the judgment of Dixon C.J.: “This is not the occasion to discuss the historical grounds upon which these powers and privileges attached to the House of Commons. It is sufficient to say that they were regarded by many authorities as proper incidents of the Legislative function, notwithstanding the fact that considered more theoretically – perhaps one might even say, scientifically – they belong to the judicial sphere. But our decision is based upon the separation of powers is not a sufficient reason for giving to these words, which appear to us to be so clear, a restrictive or secondary meaning which they do not properly bear.” The Court observed that the language of the Australian provision and the language of Article 194(3) of the Indian Constitution were strikingly similar, although it was argued that the Australian provision allowed the Houses, by resolution, to declare their privileges, whereas Article 194(3) requires privileges to be defined by law and that Australia did not recognise fundamental rights. The Court rejected that line of reasoning, stating that the issue was the meaning of the identical words in the two statutes, not the method of declaration or the presence of fundamental rights. In the Richards case an application for leave to appeal to the Judicial Committee was refused, with Viscount Simonds noting that the Australian High Court judgment “is unimpeachable.” The Court also referred to Fielding v. Thomas ([1896] A.C. 600) for the interpretation of a similar provision that extended the Commons’ privileges to the Legislature of Nova Scotia in Canada. From these authorities the Court concluded that Article 194(3) appears to confer on the Assembly the power to commit a person for contempt, and that the Assembly indeed possessed such power. The Court then turned to the question of whether a legislative body could commit by a general warrant. It noted that English law accepts that when the House of Commons commits by a general warrant without specifying the facts constituting the contempt, the courts will not review that order, as shown in Burdett v. Abbot 3 E.R. 1289 and May’s Parliamentary Practice, 16th edition, page 173. The High Court, however, had held that the English House’s power was not a privilege but derived from its status as a superior court; consequently that power was not transferred to State Legislatures by Article 194(3). The Assembly does not claim to be a superior court, and the Court found no justification for such a claim. This raised the further issue of whether the power to commit by a general warrant is a privilege of the House of Commons or a common‑law power possessed because the House functioned as a superior court. The Court found no authority to support the contention that the power to commit by a general warrant is a privilege of a State Legislature.

In this matter, the Court observed that when the House of Commons orders a person to be committed for contempt by issuing a general warrant that fails to specify the facts constituting the contempt, the civil courts will not entertain a review of that order, as established in Burdett v. Abbot (3 E.R. 1289) and reiterated in the sixteenth edition of May’s Parliamentary Practice at page 173. The High Court, however, argued that this authority of the English House of Commons did not arise from a privilege of the House but stemmed from the fact that the House functioned as a superior court; consequently, because the power was not a privilege, it could not be transferred to State Legislatures by Article 194(3) of the Constitution of India. The Assembly under consideration did not claim that it was a superior court, nor did it assert that such a claim would grant it power to commit a person for contempt by means of a general warrant. The Court stated that no justification could be found for such a claim even if it had been advanced. This leads to the core question of whether the power to commit by a general warrant is itself a privilege of the House of Commons or whether it is a power that the House possessed under English common law because it was regarded as a superior court. The Court found no legal authority supporting the contention that the power to issue a general warrant, together with the resulting removal of jurisdiction from the ordinary courts, derived from the House’s status as a superior court. In fact, the Court concluded that the House of Commons has never historically functioned as a court. The historical record of the House does not sustain the view that it ever acted in a judicial capacity. The Court also clarified that the issue under discussion concerns the privileges claimed by the House of Commons as an independent body, distinct from the other components of the British Parliament, namely the King and the House of Lords. The privileges at stake are those that the Commons asserts for itself alone, separate from the privileges enjoyed by the Lords, and the two Houses do not share identical privileges, as noted in Chapter III of May’s treatise. While it may be true that in the early phases of English history the Parliament as a whole performed certain judicial functions, the evidence suggests that the House of Commons was not a component of that early court. In medieval thought, the King was regarded as the ultimate source of all authority; justice was considered to flow from the monarch, and consequently, the court of justice was attached to the King. This royal court later evolved into what is described as the “High Court of Parliament.” Potter’s 1958 outline of English legal history summarizes the development by explaining that the King’s Council, originally known as the Curia Regis, gave rise to the common‑law courts while retaining some judicial functions even after those courts became well‑established (p. 78). Later, during the fourteenth century, the nature of that judicial role changed, further diminishing any claim that the Commons ever possessed the status of a superior court.

In the fifteenth century it became accepted that appeals from the King's Bench were to be directed to Parliament rather than to the Council. However Parliament was heavily burdened with business and could devote little time to hearing petitions or the rules of error arising from the King's Bench. Consequently, this appellate jurisdiction gradually fell into abeyance throughout the fifteenth century, leaving the King's Bench without a higher forum for review. It appears that the members of the House of Commons were not included within that Parliament for the purposes of exercising the appellate function. In the year 1485 all the judges expressed the view that the jurisdiction to hear errors rested exclusively with the House of Lords and not with the whole Parliament. Professor Holdsworth explained that the prevailing view reflected the earlier understanding that jurisdiction belonged to the King and his Council in Parliament. The Commons, he noted, were never members of that Council, which was composed only of the King and the House of Lords. He further observed that this interpretation was still remembered in legal commentary, as recorded on page 95 of his work. It is also noteworthy that when the Commons met separately they convened in the chapter‑house or the refectory of the Abbot of Westminster. They continued to use that same location as their regular meeting place after the final separation of the two Houses had taken place. The “final separation” referred to the institutional division between the House of Lords and the House of Commons. Moreover, when it is said that English statutes are enacted by the King in Parliament, the practical procedure involves the Commons presenting the bill before the Bar of the Lords. The King, either appearing in person or acting through a commissioned representative, then formally gives his assent to the Act. These historical facts demonstrate that when the House of Commons assembles as a distinct body it does not sit within the Parliament proper, and therefore it does not constitute the High Court of Parliament. The present discussion therefore focuses on the privileges of the House of Commons when it functions as a separate entity, not while it is sitting in Parliament. May observes on page 90 that it would be difficult to determine whether, in law, the House of Commons qualifies as a court of record. Anson’s Law of the Constitution, fifth edition, volume one, page 197, states that regardless of whether the Commons is a court of record, it possesses the same power to protect itself from insult. It further provides that the Commons may commit persons for contempt, and that superior courts have accepted the Commons’ statement of contempt as conclusive without investigating the precise nature of the alleged contempt. In the present state of the authorities, it would be risky to hold that the House of Commons is a court of record. If the Commons is not a court of record, it cannot be said to possess the power to order committal for contempt by way of a general warrant, a power that belongs to a court of record. The discussion now proceeds to explain how this right has been treated by authoritative textbook writers in England.

Authoritative textbook writers in England had examined the power of the House of Commons to commit a person by means of a general warrant. In a discussion found on page 173, the author described the long‑standing dispute between the Commons and the courts regarding the Commons’ privileges and noted that, in theory, there was no clear method for resolving the substantive issue should a conflict actually arise. The author, May, then observed that, despite the theoretical deadlock, in practice there existed considerably more agreement concerning the nature and principles of parliamentary privilege than the jurisdictional impasse would suggest. May further added that the courts admitted two specific points: first, that each House possessed absolute control over its own internal proceedings and that such control could not be interfered with by the courts; second, that a committal for contempt by either House was, in effect, within the exclusive jurisdiction of that House because the warrant of committal did not need to specify the facts constituting the alleged contempt. Accordingly, May treated the House of Commons’ power to issue a general warrant as a privilege of the House rather than as a right arising from common‑law status as a court of record. This view was echoed in the textbook Cases on Constitutional Law by Keir and Lawson (fourth edition, page 126), which identified among the undisputed privileges of the House of Commons the power to enforce decisions on matters of privilege by committing members of Parliament or any other individuals to imprisonment for contempt of the House. The authors illustrated this privilege with the case of the Sheriff of Middlesex, in which the House of Commons committed the sheriff for contempt by a general warrant after the sheriff, contrary to the House’s orders, complied with an order of the King’s Bench Division to which he was legally bound. The court in that case held that it lacked jurisdiction to examine the legality of the House’s committal, as reported in Sheriff of Middlesex (113 E.R. 419). A similar principle was recorded in Halsbury’s Laws of England, volume 28, page 467, where it was stated that courts of law would not inquire into the reasons why a person had been found guilty of contempt and committed by either House on a warrant that omitted the causes of arrest. This observation, made in the context of the conflict between the Commons and the courts over parliamentary privileges, clearly treated the authority to issue a general warrant as a privilege of the House. Finally, Dicey’s Constitutional Law (tenth edition), in a footnote on page 58, affirmed that parliamentary privilege had never been subject to a precise legal definition, but that certain points were well established: firstly, that either House of Parliament could commit an individual for contempt; and secondly, that the courts would not look behind such a committal to examine the factual basis of the alleged contempt, provided the cause of contempt was not stated in the warrant.

In this passage the Court observed that the authority to issue a general warrant for committing a person for contempt, when the warrant does not specify the cause of the contempt, has been regarded by scholars of unquestioned authority as an exercise of parliamentary privilege rather than as a judicial right. The Court noted that this interpretation results in the removal of the courts’ power to examine the legality of the imprisonment because the privilege belongs to the House, not to a superior judicial function. The Court then turned to recent decisions of the Judicial Committee that also frame the House of Commons’ power to commit by a general warrant as a matter of privilege. The first case considered was Glass’s case, reported in (1869‑71) L.R. 3 P.C. 560. In that matter the Legislative Assembly of the Colony of Victoria, using a general warrant, committed the appellant Glass to prison for contempt, and the imprisonment was challenged through a habeas corpus petition. The Court recalled that, under certain statutes, the Assembly claimed to enjoy the same privileges that the House of Commons possessed. The Supreme Court of Victoria ruled in favor of Glass, and the case proceeded to the Judicial Committee. At the Committee the argument was advanced that the privilege concerned only the power to commit for contempt, and that the authority to judge contempt without appeal and the power to issue a general warrant were merely incidental features applicable to England and not transferable to the Colony. Lord Cairns rejected that contention. He explained that the elements of judging contempt and committing by a general warrant constitute two of the most important components of the privileges of the House of Commons in England, and it would be unreasonable to imagine that, if the entire set of privileges and powers of the House were transferred, only a trivial portion of those privileges would be conveyed. Lord Cairns further stated that, beyond doubt, one of the chief privileges of the House of Commons is the power to commit for contempt, and that, incidentally, it has long been established in England that the House itself acts as the judge of what constitutes contempt and may issue a warrant that merely declares a general contempt of the House without describing its specific character. Consequently, it follows that when the Legislature of a Colony is permitted to adopt the privileges, immunities, and powers of the House of Commons, it also acquires the particular privilege connected with contempt – namely, the power to judge what is contempt, to order commitment for contempt, and to do so by a general warrant that simply states that contempt has occurred.

The Court observed that the House of Commons possessed three related powers: the authority to commit a person for contempt, the authority to determine for itself what conduct amounted to contempt, and the authority to issue a general warrant that merely declared that contempt had taken place. In the case of Richard (92 C.L.R. 157) the power to commit by a general warrant was described as a privilege of the House, and the Court cited the observations of Lord Cairns in the Glass case ((1869‑71) L.R. 3 P.C. 600) to support that description. The Court further noted that this same view had been upheld by the Judicial Committee in Queen v. Richard (92 C.L.R. 171). It was of some interest that Dixon C.J., as previously mentioned, regarded the power to commit as more properly a judicial power in a scientific sense, yet he nevertheless concluded that it was technically a privilege of the House of Commons and that such a privilege was transferred to the Australian Houses by section 49 of the Australian Constitution Act of 1901. The Court also emphasized that the decision being discussed was rendered in 1955, and that the judgment of that year demonstrated that the prevailing opinion at the time was that the right to commit by a general warrant remained a privilege of the House. The Court pointed out that some commentators had suggested that, even if the power were a privilege, it might have been lost through desuetude; however, the cited authorities, including Fielding v. Thomas ([1896] A.C. 600), reaffirmed that the privilege had not been abandoned. Paragraph 168 addressed the argument that decisions of the Judicial Committee were not binding on this Court. While acknowledging that they were not binding, the Court held that no authority had shown them to be incorrect, and therefore they remained persuasive. The Court reasoned that the lack of binding force did not defeat their relevance, because the central issue was whether the House of Commons possessed a particular privilege. The Court explained that it could either take judicial notice of that privilege or examine its existence as a matter of foreign law, and that it was unnecessary to decide which approach was correct. If judicial notice were taken, section 57 of the Evidence Act would permit reference to the authorised law reports of England; if the matter were treated as foreign law, section 38 of the same Act would likewise authorize reference to those reports. Consequently, in either scenario the Court was entitled to consult the English reports, which contained decisions of one of England’s highest courts, and could not disregard a privilege identified by those reports unless an equally authoritative source presented a contrary view. Paragraph 169 introduced further English authorities that argued the right to commit by a general warrant was not a privilege of the House of Commons but a right it possessed as a superior court, a position the Court would now examine.

The Court noted that it had understood the argument presented by the learned counsel for the High Court and that it would consider the authorities in chronological order. It held that it was unnecessary to narrate the factual backgrounds of the authorities, and that it would be sufficient to observe that each authority examined the power of the House of Commons to commit an individual by means of a general warrant. The first authority identified was Burdett v. Abbot (104 E.R. 501). In the initial hearing of that case, judgments were delivered by Ellenborough C.J. and Baylay J. The Court referred to the commentary of Anson on page 189 of his book, which observed that in Burdett v. Abbot, while Baylay J. based the House’s power to commit on the principle that the House should stand on an equal footing with the Courts of Judicature, Lord Ellenborough C.J. anchored his reasoning on the broader considerations of expediency and the necessity of such a power for preserving the dignity of the House. According to Anson, Ellenborough C.J. therefore did not treat the House of Commons as a court, whereas Baylay J., as interpreted by Anson, merely placed the House in parity with a Superior Court. The Court explained that if the House of Commons were a court, there would be no need to speak of placing it on an equal level with another court. The judgment of the Court of Common Pleas was subsequently appealed to the House of Lords. After the closing of the oral arguments, Lord Eldon, the Lord Chancellor, posed to the judges the following advisory question: “Whether, if the Court of Common Pleas, having adjudged an act to be a contempt of Court, had committed for the contempt under a warrant, stating such adjudication generally without the particular circumstances, and the matter were brought before the Court of King’s Bench, by return to a writ of habeas corpus the return setting forth the warrant, stating such adjudication of contempt generally; whether in that case the Court of King’s Bench would discharge the prisoner, because the particular facts and circumstances, out of which the contempt arose, were not set forth in the warrant?” (Burdett v. Abbot (3 E.R. 1289)). The judges responded negatively to the question. On the basis of that negative answer, Lord Eldon delivered a judgment, which was concurred with by the other members of the House of Lords, affirming that the House of Commons possessed the power to commit by a general warrant. The Court expressed that it could not conclude that Lord Eldon reached this conclusion on the premise that the House of Commons was itself a superior court. Rather, the Court perceived that Lord Eldon regarded the House of Commons as an entity that should be treated in the same manner as one superior court treats another, and that he was interested in discerning the manner in which the courts related to each other. The Court indicated that it would later demonstrate that this interpretation of Lord Eldon’s decision had been adopted in subsequent cases. Finally, the Court remarked that if Lord Eldon had held that the House of Commons was a court, a constitutional lawyer of

In this passage the writer observes that Anson’s eminence would not have framed the question in the way that has just been quoted from his work. The discussion then turns to the case of Stockdale v. Hansard, reported in volume 112 of the English Reports at page 1112. That case was heard by a bench consisting of the Chief Justice Lord Denman, and the puisne judges Littledale, Patteson and Coleridge. Lord Denman, speaking at page 1168, expressly rejected the proposition that the House of Commons constituted a separate court possessing exclusive jurisdiction over the matter so that its adjudication would be final. He explained that the argument placed the House on a parity with the spiritual courts and the Court of Admiralty, and that such an analogy would destroy the defence sought in the present action. He further clarified that the real question before the court was whether the subject‑matter fell within the jurisdiction of the House of Commons, and noted that the Commons claimed to bring the matter within its jurisdiction by virtue of its privileges. Lord Denman had already answered that claim, stating that it was perfectly clear that none of the courts could confer jurisdiction upon themselves merely by declaring that they possessed it.

Lord Littledale, at page 1174, added that proceedings in the House of Commons did not arise from adverse claims, emphasizing that there were no court proceedings, no judge, and no adjudication between litigant parties; the House merely made a declaration of what it considered to belong to it. Lord Patteson, speaking at page 1185, observed that the House of Commons by itself was not “the court of Parliament.” He further denied that any resolution of the House of Lords could be binding upon the courts of law, and argued that a resolution of the House of Commons, which is not a court of judicature for deciding any question of law or fact between litigant parties—except perhaps in matters relating to the election of its members—could not be binding on the courts of law. Finally, Lord Coleridge, at page 1196, questioned the premise that the courts of law were inferior in dignity to the House of Commons and that such an inferiority rendered judicial review impossible. He pointed out the difficulty in first establishing whether the House could be regarded as a court at all, and then determining in what sense it might be inferior. In the same passage Lord Coleridge concluded that, in truth, the House of Commons is not a court of law in the proper sense of the term, because it lacks the capacity to decide legal disputes between parties and does not exercise judicial power.

The Court observed that the House of Commons, as it was applied in the present situation, neither at the original stage nor on appeal possessed the authority to decide a matter that was in litigation between two parties. It had no mechanism by which to exercise such jurisdiction and it did not assert any such power. While the House did have powers of enquiry and of accusation, it did not render judicial decisions, except perhaps in very limited respects, and therefore no question of comparing degrees of jurisdiction arose between the House and the ordinary courts.

The observations of Justice Coleridge were noted as being of special significance for reasons that would become apparent later. It was clear that neither Justice Patteson nor Justice Coleridge regarded the House of Commons as a Court of Law or believed that it possessed any judicial power of that nature.

The next authority, arranged in chronological order, was the decision in the case of the Sheriff of Middlesex (113 E.R. 419). Lord Denman, Chief Justice, said at page 426: “Representative bodies must necessarily vindicate their authority by means of their own; and those means lie in the process of committal for contempt. This applies not to the Houses of Parliament only, but, as was observed in Burdett v. Abbot (14 East, 138), to the Courts of Justice, which, as well as the Houses, must be liable to continual obstruction and insult if they were not entrusted with such powers.” He added that it was unnecessary to discuss whether each House of Parliament was or was not a Court, because it was evident that the Houses could not perform their proper functions without the power to protect themselves against interference.

Lord Denman explained the test of the authority of the House of Commons in this respect, which Lord Eldon had submitted to the judges in Burdett v. Abbot (5 Dow, 199). The test asked whether, if the Court of Common Pleas had adjudged an act to be contempt of Court and had committed the contemnor, stating the adjudication in general terms, the Court of King's Bench, on a habeas corpus application setting forth the warrant, would discharge the contempt. A negative answer was given, and Lord Eldon, with the concurrence of Lord Erskine—who had previously been opposed to the exercise of the jurisdiction—and without any dissenting voice from the House, affirmed the lower judgment. The Court noted that one must presume that any court, let alone either House of Parliament acting on great legal authority, could lawfully pronounce a contempt in the manner described.

This observation supported the earlier discussion of Lord Eldon’s judgment in Burdett v. Abbot (3 E.R. 1289). Chief Justice Denman did not think that Lord Eldon regarded the House of Commons as a Court, finding the question unnecessary to discuss. He concluded that Lord Eldon’s view that the House must possess the right to commit by a general warrant stemmed from considerations of expediency and confidence in a body of such stature. Justice Coleridge, at page 427, observed: “It appears by precedents that the House of Commons have long been in the habit of shaping their warrants in that manner. Their right to adjudicate in this general form in cases of contempt is not founded on privilege, but rests upon the same grounds on which this Court or…”.

In this passage, the judgment noted that the Court of Common Pleas could order commitment for contempt without specifying a cause in the commitment order. Lord Eldon expressed this principle in Burdett v. Abbot (5 Dow, 165, 199). The judgment observed that many authorities placed great reliance on the observation of Coleridge J., but considered that reliance to be based on a misconception. Coleridge J., at page 427, expressly confirmed the statements made by him and the other judges in Stockdale v. Hansard (112 E.R. 1112). Earlier, Coleridge J. had declared that, in truth, the House was not a Court of Law at all. Consequently, when he stated that the right to adjudicate in the general form was not founded on privilege, the judgment interpreted that he did not mean that the basis was the House of Commons being a court. Rather, the judgment inferred that the right was a power the House of Commons needed to possess in order to discharge its duties properly, and that it was not a concession granted as a mark of honour or respect. The judgment also suggested that the power might not be unique to the House, because the courts possessed a similar power for reasons of expediency; therefore it could not be characterised as a privilege in the sense of a special authority exceeding that of other bodies or individuals, as discussed in May 42. The judgment then turned to Howard v. Gossett (116 E.R. 139). It referred to the judgment of the Court of Exchequer Chamber on appeal, commencing at page 158, wherein Parke B. observed at page 171 that the Speaker’s warrant was, in his opinion, valid as protection for an officer of the House, based on a principle that applied to the process and officers of every superior court and therefore must also apply to those of the High Court of Parliament and each of its branches. In that passage, the House was treated as deserving the same respect as a superior court, without being described as a superior court itself. Finally, the judgment considered Bradlaugh v. Gossett ((1884) L.R. 12 Q.B.D. 271), where at page 285 Stephen J. stated that the House of Commons is not a Court of justice. The judgment expressed inability to view these authorities as supporting the proposition that the House’s power to commit by a general warrant derived from its status as a superior court. The judgment further noted that, even if the right to commit by a general warrant could not be said to arise from the House being a superior court, the observations in the cited cases collectively established that the right originated

The submissions suggesting that the power to commit a person by a general warrant may arise from a rule of comity between courts, from a presumption of evidence, from an agreement between the courts and the House of Commons, or from a concession made by the courts to the House were examined and rejected. The Court observed that none of the authorities cited by the parties support such a contention, and no textbook on parliamentary privilege treats the power as anything other than a privilege. The Court further described the argument as plainly erroneous because it disregards the fundamental character of the privilege belonging to the House of Commons. The Court reiterated that every privilege of the House of Commons derives from law, specifically the body of law known as lex Parliamenti, and that these privileges exist as rights inherent to the House. The authoritative decision in Stockdale v. Hansard (112 E.R. 1112) was cited, where the judges affirmed that the rights of the House of Commons flow from lex Parliamenti and that, like any other law of the land, lex Parliamenti is subject to administration by the courts. Consequently, if the privilege of committing a person by a general warrant is a legal right enforceable in law and belonging to the House of Commons, it cannot be governed by the rule of comity of courts. The Court explained that comity of courts is merely a self‑imposed restraint, a discretionary decision by a court to refrain from certain actions, and it does not constitute a rule of law capable of creating an enforceable right. Moreover, comity requires the existence of two courts extending mutual civility or consideration to one another; the House of Commons, however, is not a court, and the ordinary courts do not require any courtesy from the House for their functioning. Therefore, no principle of comity of courts can be applied to the relationship between the House and the courts. The Court also addressed the suggestion that the privilege might amount only to a rule of presumption that a general warrant issued by the House legally deprives liberty, thereby exempting the courts from examining its legality. The Court noted that if such a presumption were required, the right of the House would depend on the personal indulgence of individual judges and would not represent a genuine right. The Court found no legal basis for such a presumption, and in the absence of any identified source, concluded that any presumption must ultimately rest on lex Parliamenti. Since lex Parliamenti creates privileges rather than mere presumptions, a right founded upon it is a privilege, as previously explained.

The Court examined whether the right in question originated from an agreement between the House of Commons and the courts of law or from a concession granted by the courts. It described this theory as novel and noted that no known instance existed where a right, and consequently the underlying law, was created by such an agreement. The Court observed that courts do not make laws, but merely ascertain and administer laws that already exist. For the same reason, the Court held that courts could not generate a law by granting a concession. It emphasized that a court possessed no authority to concede a point of law unless that law already existed. Consequently, the Court found it impossible to imagine any parliamentary privilege creating an enforceable right through agreement with, or concession by, the courts. In that respect, the Court reiterated that a privilege must rest upon a recognized source of law rather than on an informal understanding between institutions. The Court therefore required that any claim of privilege be supported by a clear legal foundation that could be identified without resorting to hypothetical agreements. It also noted that reliance on a presumed concession would undermine the principle that courts are bound to apply existing law rather than create new rights.

Before concluding, the Court cautioned that it was not appropriate to devise new concepts of privileges for the House of Commons that had never been imagined in England. It stressed that the proper role was not to innovate privilege doctrine through independent research. The Court warned that basing novel theories on isolated observations taken from English judgments, especially when removed from their context, would be unsafe. It pointed out that the passages quoted from those cases failed to provide a reliable foundation for a new theory concerning the right of the House of Commons to commit by a general warrant. The Court considered that investigations into old English history were wholly irrelevant to the present issue and might produce misunderstanding. It argued that forming a conclusion on the basis of antiquarian research would be erroneous, because the relevant question concerned the privileges recognized for the House of Commons in the year 1950. The Court stated that only an inquiry into whether authoritative English opinion prior to 1950 treated the right under discussion as a privilege could answer the question. After this analysis, the Court concluded that the power to commit a person for contempt by issuing a general warrant, together with the resulting exclusion of judicial review, constituted a privilege of the House of Commons. The Court further held that, for the reasons previously articulated, this privilege was possessed by the Uttar Pradesh Assembly under Article 194(3) of the Constitution. Finally, the Court observed that even this Assembly privilege could be exercised only to the extent that it did not infringe the fundamental rights guaranteed to citizens by the Constitution.

In Sharma’s case, reported in [1959] Supp. 1 S.C.R. 806, the majority opinion was interpreted as holding that the privileges of the House of Commons, which are transferred to a State Legislature by Article 194(3) of the Constitution, outrank the fundamental rights guaranteed to citizens. The factual background involved the Bihar Legislature, which had not enacted any statute defining its privileges under Article 194(3). The Legislature ordered that certain portions of its proceedings be removed from the public record, yet the petitioner, who was the editor of a newspaper, published a complete account of those proceedings, including the parts that had been expunged. In response, the Legislature issued a notice to the petitioner requiring him to explain why no action should be taken against him for alleged breach of the Legislature’s privileges. The specific privilege asserted was the authority to forbid the publication of its proceedings. The petitioner then filed a petition under Article 32 of the Constitution, contending that the claimed privilege could not override his fundamental right to freedom of speech under Article 19(1)(a), and therefore the Legislature had no power to institute proceedings against him. He also challenged the notion that the Bihar Assembly could claim the same privilege that the House of Commons possessed. The majority concluded that the Legislature indeed possessed the privilege to prohibit publication of its proceedings and that this privilege was not subject to the fundamental right under Article 19(1)(a). Justice Subba Rao, however, dissented, asserting that fundamental rights take precedence over privileges and that the Legislature did not have the privilege to prohibit publication of its proceedings; the latter point was not directly relevant to the present matter. Consequently, Sharma’s petition was dismissed.

Representing the High Court, two arguments were advanced concerning this precedent. First, it was submitted that the majority judgment required reconsideration. Second, it was argued that the judgment merely held that the specific privilege claimed in that case prevailed over the freedom of speech, and did not establish that any other privilege would automatically outrank fundamental rights. The Court expressed inability to accept either of these submissions. Representing the Assembly, it was highlighted that, under Article 143, the Court lacks jurisdiction to overturn an earlier decision of this Court; instead, it must answer the questions referred based on the law as it presently stands, and the existing decision continues to set forth the law. The Court noted that this contention was not merely idle. The High Court also referenced the decision in In re Delhi Laws Act ([1951] S.C.R. 747), where the issue arose whether a decision of the Federal Court— which, under the Constitution, holds the same authority as decisions of this Court— was correct. It may be argued that this case

The Court observed that the citation of the earlier decision did not assist the argument, because the question before the Court required a reconsideration of that earlier judgment. The Court therefore declined to discuss the matter further, noting that it did not feel sufficiently persuaded by the Assembly’s position to depart from the view expressed by the other members of the bench. The Court went on to state that it had no doubt that the majority judgment in Sharma’s case, reported in 1959 Supp 1 S.C.R. 806, was correctly decided when it held that privileges were not subject to fundamental rights. The Court recalled the first three clauses of Article 194, pointing out that the first clause was expressly made subject to the provisions of the Constitution, whereas the third clause was not so qualified. Both the majority and the minority judgments agreed that because the third clause was not expressly made subject to the Constitution, it could not be read as if it had been. The Court affirmed that, since clause (3) of Article 194 had not been expressly made subject to any other constitutional provision, a conflict between it and any other provision of the Constitution would have to be resolved by applying the principle of harmonious construction. Accordingly, the majority held that the special provision of Article 194(3) must take precedence over the general provision of Article 19(1)(a) concerning freedom of speech. While Justice Subba Rao observed that there was no inherent inconsistency between Article 19(1)(a) and Article 194(3), he nonetheless applied the rule of harmonious construction, reasoning that the legislature possessed a wide range of powers and privileges that could be exercised without infringing fundamental rights, and therefore the privilege should yield to the fundamental right. The Court expressed difficulty in following how that interpretation allowed both articles to have effect and thus achieve a harmonious construction.

The Court noted that, on its face, there was no conflict between Article 194(3) and Article 19(1)(a) because they dealt with different subjects: the former conferred on State Legislatures the powers and privileges of the English House of Commons, while the latter guaranteed every citizen the full freedom of speech. A conflict, however, emerged when the specific privileges claimed under Article 194(3) were examined. The Court explained that when Article 194(3) states that State Legislatures shall enjoy certain privileges, it incorporates those privileges within the provision itself. Consequently, a proper reading of Article 194(3) reveals that among the privileges is the right to prohibit the publication of the Legislature’s proceedings. It is at this point that a clash with Article 19(1)(a) becomes apparent, because the former imposes a restriction on the right to publish, whereas the latter affirms an unrestricted right to publish. This analysis set the stage for the Court’s further discussion on how to resolve the tension between the two constitutional provisions.

In this case, the Court noted that the earlier decisions in Sharma’s case were read as allowing the publication of all matters, and it observed that the judges in that case had indeed interpreted the provisions in that manner; otherwise, no conflict between the two constitutional articles would have arisen, nor would any attempt at reconciliation have been necessary. The Court then explained that if Article 19(1)(a) were given precedence, a citizen would possess unrestricted liberty to publish any material, including the proceedings of a State Legislature even when that Legislature had prohibited such publication. The Court pointed out that adopting this view would effectively eliminate the portion of Article 194(3) that confers upon State Legislatures the power and privilege to forbid publication of their proceedings, and such an outcome could not be described as a harmonious reading because it would give effect to one provision while rendering the other non‑existent. Moreover, the Court observed that even if Article 19(1)(a) were to prevail, the remaining privileges of the House of Commons, such as the right to exclude strangers, would remain intact; however, the Court stressed that there had never been any conflict between the right to exclude strangers and freedom of speech, and consequently no need for a rule of harmonious construction arose in that context. The Court further clarified that when a portion of one provision conflicts with another, the two cannot be reconciled by simply deleting the conflicting part from the statute and claiming that the remaining portions now operate harmoniously; true harmonious construction requires giving both provisions the greatest possible effect without excising material from the law. The Court agreed that, given the conflict between Article 194(3) and Article 19(1)(a) as previously described, the dispute must be resolved by applying the principle of harmonious construction. According to this principle, when the Constitution enacts two provisions, the legislature intends both to have effect, and if full effect of both is impossible, the interpretation that yields the maximum efficacy for each provision best serves the legislature’s intention. Applying this rule to Sharma’s case, the Court held that if the privilege claimed under Article 194(3) to prohibit publication were given full effect, Article 19(1)(a) would not be completely removed from the Constitution; the freedom of speech guaranteed by Article 19(1)(a) would continue to operate in other contexts, thereby preserving the essence of both provisions.

In this portion of the judgment the Court observed that if Article 19 (1) (a) were given its full effect – meaning that every citizen could say and publish anything he wished – then the segment of Article 194 (3) which empowers a House to prohibit the publication of its proceedings would be entirely nullified, as if that provision had never been intended. The Court held that such a result could scarcely have been the intention of the Constitution‑makers, and therefore the rule of harmonious construction favoured the interpretation adopted by the majority in Sharma’s case ([1959] Supp. 1 S.C.R. 806). The Court then turned to the reasoning of Subba Rao J, who had argued that fundamental rights must prevail over legislative privileges. Subba Rao J explained that the portion of Article 194 (3) by which a State Legislature claimed the same privilege enjoyed by the English House of Commons – described as the second part of the clause – was evidently a temporary measure intended to operate only until the Legislature enacted a law defining those privileges, as the Constitution‑makers must have envisaged. He further noted that when such a law is eventually enacted it would be subject to fundamental rights, and it would be odd to read a transitory provision as being exempt from those rights. The majority in Sharma’s case had apparently stated, without discussion, that any law made under Article 194 (3) would be subject to all fundamental rights. An advocate for the Assembly contested that view, but the Court found that the ultimate outcome was unchanged regardless of the position taken. Assuming that a law defining legislative privileges must conform to fundamental rights, the Court pointed out that this follows only because Article 13 mandates that any law conflicting with a fundamental right is invalid. Consequently, a law made under Article 194 (3) could not be read as automatically subject to fundamental rights; rather, if it conflicted with a fundamental right, it would be as void as if it had never been enacted, which is the effect of Article 13. The Court rejected the misconception that because statutes made under Article 194 (3) are subject to fundamental rights, the privileges granted by the second part of that clause must also be subject to those rights. It clarified that Article 13 renders a law defective when it clashes with a fundamental right, but it does not apply to a constitutional provision itself, as Article 13 governs only statutes, not the Constitution.

In this case the Court observed that the provision in Article 194(3) that deals with privileges created by a State Legislature is not subject to Article 13, and therefore the Court could not accept the proposition that a law defining privileges would become void for conflicting with fundamental rights and that the privileges themselves, as incorporated in Article 194(3), must consequently be subject to those rights. The Court explained that if such an intention had existed, the wording of clause 3 would have begun with an explicit statement that it was subject to the Constitution, just as clause 1 contains the phrase “subject to the provisions of this Constitution.” The omission of those words in clause 3, the Court held, strongly indicates that the drafters did not intend the clause to be subject to the Constitution in the same way. Moreover, the Court argued that accepting such an intention would defeat the very privilege that is the subject of the present dispute—that a person may be committed for contempt by a general warrant without that committal being subject to judicial review. If the privilege were to be nullified by the requirement that every deprivation of liberty be examined by a court, the constitutional provision would be ineffective. The Court also addressed the contention that fundamental rights are “transcendental.” The Court noted that it was unclear what was meant by that term and suggested that any such transcendence must arise from the Constitution itself. While Article 13 certainly makes statutes enacted by legislatures subject to fundamental rights, the Court observed that it had not been shown, nor had it been pointed out, how the Constitution otherwise renders fundamental rights transcendental. The Court warned against reading into the Constitution meanings that are not expressly contained, and against concluding that a specific constitutional provision should have no effect merely because it conflicts with fundamental rights or because fundamental rights are supposedly transcendental by nature. Turning to the question of whether the second part of Article 194(3) is transitory, the Court said that this depends on the intention of the Constitution‑makers. It was clear that the Constitution provided that when a legislature enacted a law under the first part of Article 194(3), the privileges of the House of Commons enjoyed under the latter part would cease to be available. However, the Court did not see that this necessarily meant that the second part itself was intended to be temporary. There was no evidence that the drafters meant for the legislature to create its own law defining its privileges. The Court noted that the Constitution‑makers, when drafting the 1950 Constitution, were aware of similar provisions in the Australian Constitution of 1901, where for fifty years no legislation was passed to define the privileges of the Houses of Parliament, and the Houses continued to enjoy the privileges of the British House of Commons as granted by the constitutional provision. This historical example led the Court to conclude that the Indian Constitution‑makers likely had a similar purpose and did not intend to eliminate the privileges conferred by the second part of Article 194(3) through subsequent legislative definition.

In considering the provision of the Constitution that mirrored the privilege clause of the British House of Commons, the Court observed that the framers of our Constitution were aware of the example set by other Commonwealth constitutions, which had retained the privileges without requiring a domestic statute to define them. Accordingly, the Court found no indication that the Constitution‑makers intended for Indian legislatures to enact their own laws that would replace the privileges conferred by the second part of Article 194(3) with new statutes. The Court further explained that even assuming the rights created by the second part of Article 194(3) were meant to be temporary, such an assumption could not justify a construction that would effectively remove any portion of that provision from the Constitution.

The Court then turned to the earlier decision in Ganapati Keshav Ram Reddy v. Nafisul Hassan, where the Court had held that arresting a citizen under a Speaker’s order for breach of privilege of the Uttar Pradesh Assembly without first presenting the individual before a magistrate, as required by Article 22(2) of the Constitution, infringed the fundamental right guaranteed by that article. The Court noted that the Reddy judgment did not set out any reasons to support its conclusion. Although Subba Rao J. had observed the decision, he felt bound by it, while the majority of the Court had not endorsed it, observing that the earlier judgment seemed to rest on a concession made by counsel. Counsel for the High Court, appearing before this Court, contended that no such concession existed in the earlier case. The Court further observed that Das C.J., who authored the majority judgment in Sharma’s case ([1959] Supp 1 S.C.R. 806), was also a member of the bench that decided Reddy’s case. If the Reddy decision had not rested on a concession—meaning that the counsel could not advance any argument that privilege should trump a fundamental right—it would be unusual that the issue was not discussed in the judgment. Moreover, the judgment of Reddy did not appear to argue that the second part of Article 194(3) created privileges that would take precedence over fundamental rights, and it offered no explanatory reasons for its view. Consequently, the Court expressed no difficulty in declining to follow Reddy’s case, especially since the majority in Sharma’s case had not adhered to it.

Finally, the Court addressed the purpose of the privileges granted to legislatures. It reiterated that those privileges were intended solely to enable legislatures to operate smoothly and without obstruction, thereby facilitating the principal function of legislatures, which is the enactment of laws. The Court observed that it had been argued that if the statutes enacted by a legislature are subject to fundamental rights, it would appear anomalous for ancillary matters such as parliamentary privileges to be exempt from those rights. The Court rejected this contention, holding that there was nothing strange in recognizing that the laws made by a legislature are subject to fundamental rights, while the privileges, being conferred directly by the Constitution, are not automatically subject to those rights unless a proper interpretation demonstrates otherwise.

In this passage the Court explained that laws enacted by a Legislature are subject to fundamental rights because the Constitution expressly provides that relationship. By contrast, the privileges enjoyed by Legislatures are not subject to fundamental rights, since those privileges are themselves conferred by the Constitution and have not been interpreted to fall within the scope of fundamental rights. The Court then stated that it had examined all the reasons that were offered in support of the view that the majority judgment in Sharma’s case ([1959] Supp. 1 S.C.R. 806) was erroneous, and it reiterated that those reasons were not persuasive. The judgment went on to refer to the earlier petition R. K. Karanjia v. The Hon’ble Mr. M. Anantasayanam Ayyangar, Speaker, Lok Sabha (W.P. No. 221 of 1961, unreported), which was filed under Article 32 of the Constitution. In that matter a seven‑judge Bench was invited to reconsider the correctness of the Sharma majority decision, but the Bench affirmed that decision and declined to admit the petition. The Court treated this affirmation as another basis for holding that Sharma’s case ([1959] Supp. 1 S.C.R. 806) was rightly decided. Turning to a further contention concerning the same case, the Court noted that the majority had held that the privilege allowing a Legislature to prohibit publication of its proceedings, created by the second part of clause (3) of Article 194, was not subject to the freedom of speech guaranteed by Article 19(1)(a). It was emphasized that the judgment did not declare that every privilege under the second part of Article 194(3) would outrank all fundamental rights. The Court further observed that Chief Justice Das had addressed an argument that Article 21 required any arrest to follow procedure established by law, pointing out that the arrest and detention would be governed by procedural rules framed by the House under Article 208. The contention advanced was that the majority therefore held that the right guaranteed by Article 21 should prevail over the privilege of committing a person to prison. The Court rejected this contention, stating that Sharma’s case dealt specifically with the clash between Article 19(1)(a) and the privilege to prohibit publication, and therefore did not need to consider other fundamental rights. Nevertheless, the majority’s reasoning for giving precedence to the legislative privilege in that conflict was presented as applicable to any situation where multiple privileges might collide with various fundamental rights. The majority reasoned that such conflicts should be resolved by applying the rule of harmonious construction, which would cause general fundamental rights to yield to the more specific legislative privileges. Consequently, the majority concluded that whenever a conflict arose between a special privilege created by the second part of Article 194(3) and a fundamental right, the privilege should be given priority.

In that case the Court observed that when a special parliamentary privilege conflicted with a constitutional right, the two must be reconciled through a harmonious construction. The majority held that this principle applied whenever a privilege created by the second part of Article 194(3) clashed with a fundamental right. According to that view, the conflict between the power to commit a person to prison for contempt by means of a general warrant, without that warrant first being examined by a court, and the rights guaranteed by Articles 21, 22 and 32 should be resolved by balancing the two interests rather than by allowing one to automatically override the other. The majority therefore treated the harmonious construction as the governing rule for such disputes. The minority judgment concurred that a harmonious construction was the proper method, but it differed on the specific way the provisions should be read together. Both the majority and minority agreed that the method, not the outcome, was the crucial point of contention.

The Chief Justice, Das, remarked that there was no breach of Article 21 in the Sharma case because the deprivation of liberty had been carried out according to a procedure established by law. The author of this judgment considered that observation to be merely an alternative justification. Das could have reached the same conclusion by applying the harmonious construction rule that he had earlier used to hold that the fundamental right under Article 19(1)(a) yielded to the House’s privilege to prohibit publication of its proceedings. By the same reasoning, he might have stated that the general right to liberty under Article 21 was a broad provision, while the privilege to detain by a general warrant was a narrow, special provision that should prevail. However, the author could not accept that Das had decided that the fundamental right in Article 21 took precedence over the parliamentary privilege to commit for contempt provided by the second part of clause (3) of Article 194. If Das had taken that position, it would have been inconsistent with his earlier view that the freedom of speech right should yield to the House’s privilege. Another indication that Das had not given Article 21 priority was his criticism of the earlier Reddy decision, which had held that Article 22 was predominant. By rejecting Reddy’s reasoning, Das could not simultaneously affirm that Article 21 outranked the privilege to commit for contempt. Some counsel referred to clauses (1) and (2) of Article 194 to argue that the Sharma case decided that only the right under Article 19(1)(a) had to yield to the privilege under the second part of clause (3). The author, however, disagreed that the majority’s decision in Sharma was based on those clauses.

In this case, the Court observed that the provisions of clauses (1) and (2) of Article 194 were originally intended to protect the freedom of speech of a member while he is speaking inside the House, and therefore they do not relate to the question before the Court, which concerned the power of the House to affect a citizen’s freedom of speech outside the House. The Court explained that Das C.J. had referred to those clauses only because certain arguments—now considered unnecessary—had been raised on the basis that the privileges of the House were subject to the fundamental right of freedom of speech. Both the minority and the majority judgments rejected those arguments. The Court further clarified that the issue in the earlier case involved the authority to curtail a citizen’s speech external to the House, while clauses (1) and (2) deal solely with the speech of a member within the House, and consequently the earlier case was unrelated. The Court then turned to a discussion that had taken place in this Court about the meaning of the phrase “subject to the provisions of the Constitution” in clause (1) of Article 194. It held that those words could refer only to the constitutional procedures that must be followed inside the House; otherwise clauses (1) and (2) would be in conflict with each other. The Court noted that counsel for the Assembly had argued that the Constitution deliberately placed the liberty of speech of a member in clauses (1) and (2) and relegated other privileges, including the power to punish for contempt, to clause (3) so that the former would be protected from alteration by any ordinary legislative law. The Court agreed with that reasoning, concluding that the separate placement of speech freedom in clauses (1) and (2) was intended to make it constitutionally guaranteed and beyond legislative amendment. Accordingly, those clauses were irrelevant to the present dispute and had no bearing on the judgment in Sharma’s case. The Court therefore held that Sharma’s case applied fully to the present matter and could not be distinguished. For the reasons previously outlined, the Court concluded that when a conflict arises between a privilege granted to a House by the second part of Article 194(3) and a fundamental right, the appropriate approach is to harmonise the two provisions rather than to give automatic precedence to the fundamental right merely because of its status. In the circumstances of the present case, the conflict involved the House’s privilege to commit a person for contempt without judicial review and the fundamental rights to personal liberty under Article 21 and to approach the courts under Articles 32 and 226.

The Court examined the conflict between a citizen’s personal liberty protected by Article 21 and the right to invoke the courts for enforcement under Articles 32 or 226. It observed that if the right to approach the courts were given priority, the privilege allowing a House to order committal by a general warrant without judicial review would become ineffective. Such an outcome, the Court said, would amount to nullifying the privilege granted to a House by the second part of Article 194(3). The Court declared unequivocally that allowing such a possibility would be impermissible and could not be tolerated within the constitutional framework. Consequently, the Court held that when a House commits an individual for contempt by a general warrant, that individual would lack the right to seek judicial relief, and courts could not examine the committal order. The Court clarified that it did not intend to deny the existence of any possible exceptions to this rule. However, the Court elected to refrain from examining any such exceptions in the present proceedings, leaving the question open for future consideration. It noted that the observations of Lord Ellenborough C.J. in Burdett v. Abbot (1811) 14 East I. 152 : 104 E.R. 501 might support the existence of exceptions. The Court quoted the passage on page 159, stating that Lord Ellenborough C.J. left open the possibility that courts might have to determine the validity of a contempt committal. He added that such a determination would be required where the facts could not reasonably be interpreted as contempt. Having addressed the legal principles, the Court indicated that it was ready to answer the specific questions referred to it.

The first question presented to the Court asked whether the Lucknow Bench of the High Court of Uttar Pradesh, composed of Justices N. U. Beg and G. D. Sahgal, possessed authority to entertain the petition filed by Shri Keshav Singh. The petition challenged the legality of his imprisonment by the Legislative Assembly for contempt and alleged infringement of the Assembly’s privileges, and also sought bail pending final determination. The Court concluded unequivocely that the proper answer to this jurisdictional query was affirmative, confirming the Bench’s authority to proceed. It observed that the Lucknow Bench possessed unquestioned competence to entertain habeas corpus petitions in all general circumstances. The Assembly contended that the Bench lacked jurisdiction when the detention arose from a general warrant issued by the Speaker. The Court explained that the Bench first needed to ascertain whether the detention of Shri Keshav Singh resulted from such a general warrant before invoking a jurisdictional bar. The petition did not contain any evidence indicating that the detention of the petitioner was based on a general warrant issued by the Assembly. The Court noted that the existence of a general warrant would have been evident when the Speaker of the Assembly and the jailor returned their respective reports. Because the Bench had not yet received those returns, it retained full competence to consider the petition and to grant bail.

In the proceedings, the individuals who had been served as respondents to the petition returned their replies after the petition had already been considered by the Lucknow Bench, and the Bench had issued orders on the matter before any return was filed. Consequently, until the Lucknow Bench became aware that the detention which formed the subject of the petition was effected under a general warrant, the Bench possessed full authority to entertain the petition and to pass orders relating to it. It was subsequently submitted that the order granting bail was illegal because, according to legal principle, bail cannot be granted when the imprisonment is for contempt. The Court observed that this occasion was not appropriate for a definitive determination of that point of law, and even if the order granting bail were found to be unsupported by law, such a deficiency would not, in any event, diminish the Bench’s competence to have made the order. The Court further expressed the view that the reference did not aim to obtain an answer to the legal question of whether a habeas corpus petition involving imprisonment for contempt permits the release of the detainee on bail. The Court then turned to the second question presented for consideration, namely whether, on the facts and circumstances of the case, Shri Keshav Singh, by causing a petition to be filed on his behalf before the High Court of Uttar Pradesh, and Shri B. Solomon, as the counsel who presented the petition, together with the two Hon’ble Judges who entertained and dealt with the petition and ordered the release of Shri Keshav Singh on bail pending disposal of the petition, had committed contempt of the Legislative Assembly of Uttar Pradesh. The Court first observed that the determination of whether any act constitutes contempt of the Assembly is a function that belongs exclusively to the Assembly itself. In the absence of a factual finding by the Assembly, the courts are powerless to review the legality of such a determination. Having made that preliminary observation, the Court proceeded to answer the substantive question. It concluded that the answer must be negative. The Court explained that, for conduct to amount to contempt, the act must be not only illegal but also willfully illegal. In the present case, none of the persons mentioned appeared to have any knowledge that the detention was issued under a general warrant. Accordingly, there was no material to suggest that the filing of the petition was an illegal act, let alone a willful one. Consequently, the Court held that no contempt had been committed by the Hon’ble Judges, by Shri B. Solomon, or by Shri Keshav Singh for the respective roles they played in connection with the petition. The Court then addressed the third question, which asked whether, on the facts and circumstances of the case, the Legislative Assembly of Uttar Pradesh was competent to direct that the two Hon’ble Judges and Shri B. Solomon be produced before it in custody or to summon them for an explanation concerning alleged contempt. The Court recalled that, according to the record, the resolution dated 21 March 1964 directed that the Judges be produced in custody on the ground that they had committed contempt of the House by their respective actions in connection with the petition of Shri Keshav Singh.

In this case, the Court noted that the petition dated 19 March 1964 and the Assembly’s dispute over the resolution were before it, but the Court limited its inquiry to the factual findings recorded in the order of reference and declined to adjudicate the correctness of any facts not contained therein. The Court observed that the Assembly would not have been authorized to pronounce the Hon’ble Judges and B. Solomon guilty of contempt without first affording them a hearing. Moreover, the Court had previously determined that, based on the evidence, the Judges and the advocate were not guilty of contempt. Consequently, the Court concluded that the Assembly lacked authority to order their production in custody. The Court further pointed out that the Assembly had framed its privilege question in terms of causing persons to be taken into custody to answer charges of contempt, as reflected in May page 94. The Assembly subsequently amended its resolution so that the Judges, Solomon and Keshav Singh would be taken into custody, while it sought only an explanation from the Hon’ble Judges and B. Solomon regarding their conduct. Accordingly, the Court held that, strictly speaking, the issue of bringing them into custody before the House did not arise on the facts of the present case. Regarding the Assembly’s power to demand an explanation from the two Judges and B. Solomon, the Court affirmed that such a power fell within the privileges of the House, reasoning that a body which can commit persons for contempt must also be able to investigate the facts underlying the alleged contempt. Turning to the next question, the Court answered affirmatively that the Full Bench of the High Court of Uttar Pradesh was competent to entertain the petitions filed by the two Judges and the advocate and to issue interim orders restraining the Speaker of the Legislative Assembly and other respondents from enforcing the Assembly’s direction. The Court reasoned that, since the petitions challenged a resolution finding the Judges guilty of contempt, and the Court had already concluded that the Judges were not guilty, the Full Bench possessed the authority to grant the interim relief it had granted. Finally, the Court addressed the fifth question concerning whether a High Court Judge who entertains a petition challenging a legislative order imposing a penalty or contempt, or who passes an order on such a petition, commits contempt of the legislature and whether the legislature may initiate proceedings against that Judge. The Court found the question overly general to answer in the abstract and indicated that it required factual determination.

The Court observed that the question presented could not be answered by a single universal rule because the appropriate answer would depend on the particular facts of each case, and it was impossible to foresee every possible factual scenario. Moreover, the Court held that it was not required to provide a comprehensive answer to every conceivable circumstance. As the learned counsel for the parties indicated, the issue must be decided on the basis of the facts relevant to the present case, and on those facts the Court concluded that the answer must be in the negative. The Court then turned to a matter that had attracted extensive argument at the Bar, namely the liability of a judge for contempt of a legislative House. It reiterated the earlier position that a judge does not possess jurisdiction to interfere with a commitment made by a House under a general warrant. Consequently, any order issued by a judge that interferes with such a commitment would be ultra vires and would constitute a nullity. Any officer who attempts to execute that order would, in effect, be interfering with the House’s commitment, an act that would be unlawful because the underlying order lacks jurisdiction and is therefore void. Should the House initiate contempt proceedings against the judge on that basis, the Court held that no court of law could grant any relief to the judge founded on the void order. The Court further contemplated that a judge who issues such an order may himself be guilty of contempt of the House, since he would be unlawfully interfering with the House’s authority. The remaining issue, the Court noted, was whether a judge who has allegedly committed contempt could be held liable by the House, that is, whether the judge enjoys immunity from House action for contempt. The Court clarified that if the judge’s order were lawful, there would be no contempt and therefore no question of immunity. The High Court, it was argued, maintained that even if a judge could be guilty of contempt, the Constitution provides the judge with full immunity. This argument was premised on the constitutional scheme that seeks to ensure complete judicial independence. It was further emphasized that under the Constitution judges can be removed from office only by impeachment under Article 124(4), which requires a Presidential order after an address supported by a specified majority in each House of Parliament. Additionally, reliance was placed on Article 211 of the Constitution, which bars discussion in the Legislature of a judge’s conduct while performing judicial duties, and it was contended that this prohibition indicated that a judge cannot be held liable for contempt because such liability would necessitate legislative discussion of the judge’s conduct. However, it was conceded that Article 211 does not confer an enforceable right in this regard.

In the discussion, reference was made to Article 194(2) of the Constitution, and it was observed that this provision suggested the intention of the Constitution‑makers that a Judge ought to enjoy immunity from liability for contempt committed against the Assembly. The validity of these submissions was contested on behalf of the Assembly. Concerning the issue of judicial independence, it was argued that the framers could scarcely have intended to grant a Judge immunity even when the Judge deliberately committed contempt of a House. The argument emphasized that such contempt would be intentional, because a Judge would be aware that, in the situation of a general warrant, he possessed no jurisdiction to proceed further.

The contention based on the irremovability of Judges except as provided under the Constitution was also examined. It was asserted that the principle of irremovability bore no connection with immunity for contempt. The discussion pointed out that the Constitution provided for State autonomy, and therefore it could not have been intended that, when a Judge committed contempt of a State Legislature, the sole remedy available to that Legislature would be to petition the Central Parliament for steps to remove the Judge. Such a course, it was argued, would seriously impair the dignity of the State Legislature. Moreover, obtaining such relief would be unlikely, particularly in circumstances where the parties in power in the State and in the Centre were different, as might often occur. The argument further clarified that the purpose of the Judges’ irremovability was not to shield their deliberate wrongful acts, but rather to protect their independence from illegal interference by powerful influences.

It was also contended that granting a Judge immunity would place the officers of the court in a helpless and precarious position, because they would be bound to execute all orders of the Judge, even if those orders were illegal, thereby exposing themselves to punishment lawfully imposed by an Assembly. The final point raised on this theme was that, if the independence of Judges was deemed necessary for the good of the country, the independence of the Legislatures should be regarded as equally essential.

Turning to Article 211, the analysis observed that this article did not indicate any intention that Judges would be exempt from liability for contempt committed by themselves. Its primary purpose, the argument stated, was to allow the freedom of speech guaranteed by Article 194(1) to be restrained in a specific manner. Furthermore, it was highlighted that Article 211 would not prohibit discussion unless it had first been determined that the discussion related to the conduct of a Judge in the discharge of his duties. Such a determination would often be difficult to make, and, in any event, the decision of the House on the matter would not be subject to judicial review, because under Article 194(3) the Legislature had obtained absolute control over its internal proceedings, as illustrated in the case of Bradlaugh v. Gosset. On all these grounds, it was contended that the Constitution did not confer any immunity on a Judge for an act of contempt.

The Court noted that the issue of whether a judge could claim immunity for contempt that he himself admitted was expressly raised. It pointed out that, in England, judicial officers—including judges of superior courts—did not enjoy such immunity, and it referred to the authorities Jay v. Topham (12 Howell’s State Trials 821) and the case of Brass Crossby (19 Howell’s State Trials 1138) as illustrations of that position. The Court then expressed uncertainty about whether every argument on the matter had been set out, but it indicated that the material presented gave a fair impression of the opposing contentions. For the present case, the Court stated that it was unnecessary to examine the merits of those competing arguments in detail. It observed that the factual questions raised by the reference could be resolved without having to decide the broader doctrinal question of judicial immunity. The Court further remarked that theoretical disputes of this nature were better left to scholarly discussion rather than allowed to affect the practical functioning of the legal system. It added that avoiding the creation of factual situations that gave rise to such disputes required little effort, and it cited the English practice as an example of how this could be achieved. Accordingly, the Court expressed a strong conviction that the national interest would be better served by refraining from answering the immunity question, especially because the issue had not actually arisen in the present circumstances, and it hoped that the matter would never arise in the future.

The Court then recorded that counsel for the Advocate‑General of Bihar, identified as Mr. Verma, raised the objection that the President’s reference was either incompetent or ought not to be entertained. He argued that a reference could be issued by the President only when the President required the Court’s advice on difficulties he encountered in discharging his constitutional duties. According to Mr. Verma, the questions contained in the reference dealt with matters that did not fall within the President’s sphere of concern, and consequently, any advice rendered by the Court would not resolve any difficulty faced by the President. The opposing side countered that the President might contemplate a constitutional amendment after receiving the Court’s answers. In response, Mr. Verma asserted that it was not the President’s prerogative to consider constitutional amendments and that Article 143 did not intend for the Court to be consulted for the purpose of initiating legislation. The Court acknowledged that Mr. Verma’s submission was not wholly without foundation, but it declined to pronounce on that issue in the present case. Finally, before concluding, the Court expressed deep regret that the circumstances had escalated to the point where a presidential reference became necessary. It observed that greater tact, restraint, and consideration could have averted the present situation, and it expressed confidence that, had the matter proceeded differently, the learned judges Beg and Sahgal would have acted accordingly.

In this case, the petition filed on 19 March 1964 was dismissed after the Court had obtained the complete facts. The author expressed regret that, instead of exercising the restraint appropriate to the circumstances, the Court acted precipitously, especially given that the challenged imprisonment order had been expressly declared to have been passed by a body of the stature of the Assembly for the contempt shown to it. Although there was limited time for delay, the author noted that Keshav Singh could not compel the Court by filing at the last moment. The decision of the Honourable Judges, the author observed, intervened in a perfectly legitimate action of the Assembly in a matter where such interference was neither justified nor unavoidable, and could have been prevented. The author further remarked that the Assembly itself might have averted the crisis by exercising self‑restraint and refraining from commencing proceedings against the Judges immediately. The observation was made that the Judges are required to perform difficult duties, often on the basis of imperfect material, and therefore errors are possible. Had the Assembly presented the facts before the Judges, its perspective would likely have been considered, leading to appropriate orders that might have reversed actions taken in the absence of complete material. Such a measured response by the Assembly, the author argued, would have enhanced its stature and prestige and would have promoted harmonious interaction among the various organs of the State.

The author added that there was no belief that a Legislative Assembly could not be trusted with the absolute power to commit a person for contempt, noting that the Constitution expressly entrusts Legislatures with responsibilities far more significant than this power. In the fourteen years since the Constitution’s commencement, the Legislatures have not done anything to warrant distrust, and, although Article 211 is not enforceable, the Legislatures have demonstrated an admirable spirit of restraint, never once discussing the conduct of Judges. The author warned against losing faith in the people and cautioned against assuming that Legislatures would misuse their constitutional powers or that safety could be achieved solely through judicial correction, which might generate friction and cause greater harm. In a modern State, the author affirmed, parallel powers in different authorities are often necessary for the country’s welfare, and it is not inevitable that such powers will clash. To view the situation as hopeless would be defeatist; individuals capable of exercising these powers responsibly exist, and they can work in the best interests of the people without provoking friction. The author sincerely hoped that the present episode would not recur and that the Constitution would continue to be operated by the various State organs in an amicable, wise, courageous manner, consistent with the spirit intended by its framers.