The powers, privileges and immunities of the State Legislature, its committees and their members are the same as those of Parliament, its committees and its members.
Members are entitled to receive such salaries and allowances as are determined by the Legislature form time to time. At present, there is no uniformity with regard to these among the various States. Nevertheless all of them give regular monthly salaries and certain allowances to their legislators.
The question of the privileges and immunities of the legislature and its members figured prominently in three cases where an attempt was made to persuade the High Courts and the Supreme Court to interfere with the working of the State Legislative Assemblies.
Of these Misra vs. Nand Kishore was a case which came up before the Orissa High Court in which the petitioner challenged the action of the Speaker who disallowed certain questions which he asked on the floor of the Orissa Assembly.
The High Court declined to interfere as this was a matter which fell within the exclusive rights of the legislature to regulate. In the second case, Singh vs. Govind, Allahabad High Court was asked to determine the legality or otherwise of certain disciplinary action taken against the petitioner as a member of the Uttar Pradesh Assembly.
Here again, the Court refused to intervene. Speaking on behalf of the court, Justice Sapru said: “Obviously, this Court is not, in any sense whatever, a Court of appeal or revision against the legislature or against the rulings of the Speaker, who as the holder of an office of the highest distinction, has the sole responsibility cast upon him of maintaining the prestige and dignity of the House.”
He added that under Article 194, the legislature has the right (1) to be the exclusive judge of the legality of its own proceedings, (2) to punish its members for their conduct in the House, and (3) to settle its own proceedings.
The matter came before the Supreme Court for the first time in the case of The Searchlight and the Court gave its verdict in favour of the legislature.
The case arose out of the publication by The Searchlight, an English language daily newspaper, of certain references in the Legislative Assembly of the State of Bihar relating to the conduct of the Chief Minister of the State and an ex-Minister.
The newspaper reported that a member of the Assembly made a bitter attack on the Chief Minister and his ex-colleague with respect to their activities regarding the selection of the Ministers and the glaring instances of encouragement of corruption by the Government.
Soon after, the Secretary, Bihar Legislature, issued a notice to the Editor of The Searchlight for the breach of privilege of the House inasmuch as he was alleged to have published a perverted and unfaithful report of the proceedings.
The notice asked the Editor to appear before the Privileges Committee which had found a prima facie case against him, and show cause why action should not be taken against him. The Editor challenged the validity of the notice by a petition filed in the Supreme Court under Article 32 of the Constitution.
The Court said that it was called upon to answer two questions: (1) whether the House of the Legislature could prohibit the publication of the publicly seen and heard proceedings; (2) whether the privileges of the House under Article 194; (3) prevailed over the Fundamental Rights of the citizen under Article 19(1) (a).
A four to one majority of the Court answered both the questions in the affirmative. Speaking on behalf of the majority, Chief Justice S.R. Das held in the absence of a law made by the legislature, the legislature shall have all the privileges, powers and immunities enjoyed by the House of Commons in England at the commencement of the Constitution of India and the citizen could not insist on the faithful publication of the proceedings of the legislature if the legislature chose not to permit him to do so.
The Fundamental Right of freedom of speech guaranteed to a citizen under Article 19(l) (a) could not override the privileges of the legislature. It must not be overlooked that they (the privileges) were conferred by constitutional laws and not ordinary laws made by Parliament and, therefore, they are as supreme as the Chapter on Fundamental Rights.
In his dissent, Justice Subba Rao said that the reasoning adopted in the majority judgment would unduly restrict and circumscribe the wide scope and content of one of the cherished Fundamental Rights, namely, the freedom of speech in its application to the Press.
The learned judge asked: “Why should Article 194 be preferred to Article 19(l) (a) and not vice versa?” According to him, if there is a conflict between a legislative privilege and a Fundamental Right, the former should yield to the latter to the extent that it is necessary to uphold the Fundamental Right.
The legislature has only the privilege of preventing mala fide publication of the proceedings. Article 19(2) gives ample scope for such reasonable restrictions to be imposed by a duly enacted law.
The privilege of the legislature can be adequately protected by applying the test of reasonable restrictions envisaged under Article 19(2). Hence it is unnecessary to accord a preferred position to the privilege of the legislature over the Fundamental Right of the citizen expressly guaranteed by the Constitution.
In spite of the Supreme Court’s verdict in The Searchlight case upholding the supremacy of legislative privilege over the right to freedom of expression, it must be emphasised that the interests of a parliamentary democracy demand the need to ensure the freedom of the Press in an adequate measure.
The Press should not get the impression that the House was trying to “terrorise” it into refraining from fair comment. As there is no possibility for appeal against any decision taken by the House, fairness demands of members to act with great responsibility and utmost impartiality in deciding what they should object to what action they should take.
Unfortunately, however, there exists a tendency among legislators in India to invoke privilege too frequently. This seems to be the product either of insufficient appreciation of the rights of others to criticize what they do on the floor of the House or an exaggerated feeling of importance of their parliamentary role.
The best example of this was provided by the unprecedented jurisdictional fight between the Uttar Pradesh Assembly and the Allahabad High Court.
The circumstances which led to this unusual incident were as follows: The U.P. Legislative Assembly passed a resolution on March 14, 1964, recommending that a socialist worker, Keshava Singh, be sentenced to simple imprisonment for seven days for committing contempt of the House by defying its order.
Subsequently, the High Court, acting on a writ petition, released Keshava Singh on bail pending the final disposal of the petition. The Assembly discussed the action of the Court and decided by an overwhelming majority that it amounted to contempt of the House.
Hence it adopted a motion that the two judges who heard the writ petition as well as Keshava Singh and his counsel should be produced before the bar of the House for the breach of privilege.
The High Court reacted to this move of the Assembly swiftly and firmly. A full bench of the Court consisting of twenty-eight judges, on the following day, passed an interim order staying the implementation of the Assembly’s controversial resolution which had already provoked an unprecedented constitutional crisis.
Further, the Court reserved orders on three petitions intended to institute contempt of court proceeding against the Assembly, the Speaker, the Marshal (who was asked to serve the warrant on the judges) and the mover and the supporter of the resolution in the Assembly.
By now, the U.P. happenings were attracting nation-wide attention and attempts were made to discuss the matter in the Lok Sabha of Parliament.
A few days later, having failed to find a satisfactory solution to the constitutional impasse, the ruling Congress Party steam rolled a resolution requesting Presidential intervention under Article 143 of the Constitution in order to settle its conflict with the High Court.
Thus the matter reached the President who, under Article 143, referred it to the Supreme Court for its advice. The Court held that the High Court was competent to entertain the petition filed by Keshava Singh challenging the legality of the sentence of imprisonment imposed on him by the Assembly.
It also held that the Assembly was not competent to direct the production of the two judges of the High Court who ordered the release of Keshava Singh.
The extent to which claims to parliamentary privileges can go was further shown in a decision of the Supreme Court in January 1961. In this a defamation case a member of the West Bengal State Assembly contended that there was an absolute privilege in favour of a member and that he, therefore, could not be prosecuted for having published subsequently questions which had been disallowed by the Speaker.
In January 1954, he had given notice of his intention to ask certain questions in the Assembly. The questions were disallowed. He then published them in a local journal.
The person whose conduct had formed the subject matter of the questions filed a complaint against the Assembly member, and also the editor and publisher of the journal, alleging that the published matter contained scandalous imputations against him and was intended to tarnish his reputation.
In a unanimous verdict the Supreme Court held that there was no absolute privilege attaching to the publication of extracts from proceedings and that, if the extracts contained defamatory matter, the member concerned should face the consequences as in any ordinary case of defamation.
In another important case (1995) the Speaker of the Manipur State Assembly tried to show his contempt of the Supreme Court by refusing to accept the notice of the Court. The Speaker’s decision regarding defection of some members in the Assembly was the matter of contention.
This was challenged in the Supreme Court. Refusing to accept the notice of the Court, the Speaker contended that his authority as Speaker was not questionable by any other authority. The Court took serious note of this attitude of the Speaker and ordered the Speaker to personally appear before the Court.
When it was found that the Speaker was not complying with the order, the Supreme Court initiated contempt of Court proceedings against the Speaker. Eventually, the Speaker appeared before the Court and apologised. The Court let him off with a warning.
The attitude of all the Speakers in India the Lok Sabha speaker as well as State Assembly speakers has been that they are not amenable to the jurisdiction of the High Courts or the Supreme Court. In some form or other they have been declaring this all these years.
The annual conference of the Speakers has been a forum where such views found ready expression. But since the decision of the Supreme Court in 1964, there has been a perceptible change in this attitude.
Particularly, since the partisan decisions of the Speakers under the Anti-defection law were invariably contested by those members who were adversely affected, the Courts were compelled to intervene and the Speakers found it difficult to resist.
The unprecedented violence that happened on the floor of the Uttar Pradesh Assembly in 1997 at the time of the voting on the Confidence Resolution moved by the Chief Minister of the State, Kalyan Singh, led ultimately the matter to be brought before the Supreme Court.
The Court gave orders to the Speaker of the Assembly to conduct the Assembly proceedings in a particular manner to ensure free and fair voting on the Resolution. The Speaker not only accepted the Court orders but conducted the voting on the Resolution accordingly and reported to the Court the results.
This was an unprecedented incident in the annals of legislative procedures in India. Gone are the days when Speakers could assert their independence as Presiding Officers of the Legislative Assemblies.