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A 413 SPECIAL REFERENCE NO. 1 OF1964 September 30, 1964. (P. B. G;.JENDRAGADKAR, C.J., A. K. SARKAR, K. SunA RAo, K. N. WANCHOO, M. HIDAYATULLAH, J. C. SHAH B AND N. R.AJAGOPALA AYYANGAR JJ.) c D E F G H ConJtitution of India,Art. 143(1)-Reference under, whether mUJt relateto matterJpertaining to President'spowers and duties unlier t,he ConJtltution-Refusa/ to answerwhen jurtifiable. Co1'!3titution of· India, Art. 194(3)-Privileges of Hou>e of Com mons conferredon Indian State Legislatures--Power to commitfor con tempt by conclwlvegeneral warrant whether one of such prlvl/eg•:t Privlleges whether 1ubject to provision. of the Corutitutionand to fundamental rights-Power to determinescope of privi/egeJ whether restsentirelywith legislaturesto the exclusion of the CourtJ. Constitution of India, Arts. 32, 226-Power of Supreme Court and High Courtsto entertainpetitions challenging legality of committals for contempt by State Legislatures-Power to interferewhere breach of fundamentalrights alleged. Constitution of India,Art. 211-Whether directoryor mandatory /ts impacton Art. 194(3). TheLegislative Assembly of the State of Uttar Pradesh committed oneKeshav Singh, who was not one of its' members,to prisonfor its contempt.The warrant of committal did not containthe facts consti tuting the allegedcontempt.While . undergoingimprisonmentfor the committal, KcshavSingh throughhis Advocatemoved a petitionunder Art. 226 of the Constitution and s. 491of theCodeof Criminal Pro cedure,challenging his committal as being in breach of hisfundamental righ"'; he alsoprayedfor interimbail. ·nie High Court (Lucknow Bench)gave noticeto theGovernmentCounsel who accepted it on behalfof alltherespondentsincluding the Legislative AMembly. At the timefixedfor thehearing of thebailapplicationthe Government Counsel didnot appear. Beg and Saghal JJ. whoheardthe application ordered thatKeshavSingh be releasedon bailpendingthe decision of hispetitionunder Art. 226.The LegislativeAssembly found thal Keshav Singh and his Advocatein movingthe HighCourt,and the two Judges of theHighCourtin entertainingthe petitionand grantingbail hadcommittedcontempt of theAssembly,and passeda resolution that all of them be producedbefore it incustody.The Judges and the Advocate thereupon· filed writpetitionsbefore the HighCourt at Allaha badanda FullBenchof theHighCourtadmittedtheir petitions and orderedthe stayof theexecutionof theAssembly'sresolution against them. The Assembly thenpasseda clarificatoryresolution which modified itsearlierstand.Instead of beingproducedin custody,the Judges and the Advocatewere askedto appearbefore the House and offer •heir explanation. At this stagethe President of Indiamadea Referenceunder Art. 143(1) of theConstitutionin whichthe wholedispute as to the consti tutional relati0nship between theHighCourtand the StateLegislative including thequestionwhether on thefactsof tho case Keshav Singh 414 SUPREME COURT REPORTS [1965] I S.C.R. his Advocate, and thetwoJudges, by their respective acts,wereguilty A of contempt of the State Legislature, wa< referredto the Supreme Court for its opinionand report. At the hearing of the Reference a preliminaryobjection as to the competency of the Referencewas raised on behalf of the Advocate· Gener.I of Bihar, on the ground that it didnot relate to any of the matters covered by the President's powersand duties Wlder the Con· slitution. It was also urged that even if the Reference was competent, B lhe Court should not answer it as it was not obliged to do so, and the answers givenby it wouldnot helpthe !'resident in solving any of the f the House of Commons of the UnitedKingdom had been conferred on it. It was the solejudge of its privileges and the Courts had no jurisdictionto interfere with their exercise. In the alternative, it was coolendedthat Courts in England never innerfered with a committal bythe House of Commons forcontemptwhen the committal was by a general ¥.'arrant. i.e., a warrantwhich did not statethe facts constituting thecontempt,and. thereforeCourts in Indiawere also precludedfrom D examining the legality of the generalwarrants of the Slate Legislatures. The proceedings in theHighCourtin thepresentcase were, theroiore, in contempt of the legislature. Those supporting the stand taken by the High Court urged that the Legi•latureo receivedthe powers of the House of Common• subject to provisioas of the Constitutionand to the fundamentalrights, that the power to commit by general warrant was not one of the privileges of E the Howe of Commom, that by vinue of ArtielN 226 and 32, the citizen had theright to movethe Court• when hi• fundamental rights were contravened,and that because of the provisions in Art.211,the Legislaturewas precludedfrom taking any actionagainstthe Judges. HELD: (Per P. B. GajendragadkarC. J., K. Subba Rao, K. N. Wanchoo, M. Hidayatullab, l. C.Shahand N. RajagopalaAyyangar, JJ.)-The terms of Art. 143(1) are verywide and all that theyrequire F is that the Presidentshould be satisfied that the questions to be referred are of sucha nature and of such public importance that it would be expedient to obtainthe Supreme C'.ourt's opinionon them.The Presi· dent's order makingthe presentReferenceshowed that he wu so satis fied. and thereforethe Reference wa' competent. The argumentthat a Reference under Art. 143( I) couldonly be on matters directlyre lated to thePresident's powers and duties under the Constitution was miscooceiYed. (431 E-P;432 B-P]. G EarlierReferences made by the Pre discussand decidethat generalissue. His claim Vas based on the a~plic.-.·. 416 SUPREME COURT REPORTS [ 1965] I S.C.R. abilityof twoArticlesonly i.e., Articles 21 and 19(1)(a). TheCourt heldthat the formerwas applicableand the latterwas not.This mUSI thereforebe takento ha»e been settled in Sharma'scase. (451 C-F). ButSharma'scase cannot be said to havesettled:he issuewhether Art. 22(2) wasapplicableto Art.194(3) or not.(Observationsof the majoritytherein as to thecorrectnessof thedecisionin Reddy's c~e which was decided on thebasisthat Art.22(2)was applicable,held to be obiter). (452 D-E). PanditM. S. M.Sharma v. ShriSri KrishnaSinha & OtherJ, I1959) Supp. I S.C.R. 806andGunupatiKeshavramReddy v. Nafisul /Iman and the State of U.P., A.I.R. 1954S.C. 636, discussed. (v) l'he viewtaken in Shar1na's case that the laws definingthe powers and privileges of the legislaturesunder the firstpartof Art. 194(3)would be subject lo Art. 13 andthereforeto thefundamental A B rights, didnotrequirereconsideration. [453 G]. C Anantha Krishnan v. State of Madras,A.J.R. 1952 Mad. 395, con sidered. (vi)The first partof Art.194(3)empowersthe Stale Legislatures 10 define by law 1heir Ovn po'ers, privileges and immunities. The secondpart of theArticlesays that till theydefinetheir powers etc. in the above manner, their powers,privileges and immunities will be those of the Brith~h House of Commons.The secondpart was obviously in- D 1ended to conferfor the interim period till laws were made under the first part, thc..;e incidental privileges and immunitie.'i which everv Legi5· laturc musti possess in order that it may be able to function effectively. (442C-E]. The power-. oftheHouseof Commonsconferred by this clause are those which were still in existence at the commencementof the Con· atitution l.t., 26th January,1950 and not those whichhad falleninto desuetude or theclaim in respect of whichhad beengivenup. Further, E onlythosepowerscan he deemedto havebeen conferredwhich were not onlyclnimedby theHouseof Commonsbut also recognised by tho British Cour:s. (442 F-H]. (vii)The claimthat all the powers of theBritish HOU5e of Com monsbecamevested in the Indian Legislatures by virtueof Art.194(3) cannot be acceptedin its entirety for thereare many powers of the House of Commons-such as rightof accessto thesovereign,passing F acts of attainder, impeachment,determining its ownConstitution etc. whichcannot be possibly exercised by the IndianLegislatures.(448 D-GJ. May'1Parlia1ntntaryPractice, 16th Edn. p. 86, referred to. (viii) Art. 194(3) did notconfer on the IndianState Legislat•res the right to commitfor contempt by a generalwarrantwhich could not be examined forits validityby courts in habtas corpus proceedings. G The rightclaimed by the Houseof Commonsnot to have its general warrants examined in hahta!;corpus proceedings, was based on the con· 5idcration that the I-louse of Commons Vias in the position of a superior courtof recordand had the right like othersuperior courts of r~rd to issuea generalwarrantfor the commitmentof personsfound gwlty ,,f contempt.There was a convention in En~land whereby the general ¥.:arrants committing.for contempt issued by a superiorcourt of record were not examined by othercourts. It was on thatgroundand DOI on the H ,round of privilegethat the generalwarrants issued by the House of Commons were treated as beyond scrutinyby the courts. (482B-D; 496FJ. A B c D E F G H SPECIAL REFERENCE 417 May's Parliamentary Practice, 16th &In. relied on. Ashby v. White, L.J, ( 1701-05) 714, Earl of Shaftesbury's ca.2 A-BJ. (ix) Evenif thepowerto commitby non-examinablegeneral war rant were treated as forming an integraloart of the privileges of the House of Commons it wouldnot followthat the IndianState Legisla turescouldexercisethat powerby virtueof Art.194(3).[495-HJ. Thevery existence of the powers of the Courtsunder Art. 226 and 32necessarilyimplies a right in thecitizento approachthe HighCourt or the Supreme Courtfor theprotectionof hisfundamental righ~•. (Thepresentdispute was really betweena citizenand the Legislature and not onebetweenthe HighCourtand the Legislature).[494 A-BJ. Tf a citizenmovedthis courtand complained that his fundamental right under Art. 21 [heldto beapplicableto Art.194(3)in Sharma'.' c...,) or any otherapplicableright, had beencontravened,it would plainlybe thedutyof thisCourtto examinethe merits of the saidcon tention. It wouldbe no answer in such a caseto saythatthe warrant issued againstthe citizenwas a generalwarrantand a generalwarrant mll.'lt stop all furtherjudicialenquiryand scrutiny.The impact of the 418 SUPREME COURT REPORTS (1965] I S.C.R. fun privileges and immun"ities, or whopasses any order on suchpetition, doesnot commit any contempt of the saidLegislature,and the said Legislature is notcompetentto takeproceedingsagainst such a Judge in the exerciseand enforcement of its powers,privilegesand immunities. [502 A; 503 C]. (xiii) It is necessary to rememberthat the status,dignityand impor tance of thetwoinstitutions, the Legislatureand the Judicature.are derived primarilyfrom the status,dignity and importanceof the respectivecauses that are assigned to their charge by the Constitution.These two bodies as well as the executivewhich is ano ther importantconstituent of a democraticState, must functionnot in antinomynor in a spirit of hostility,but rationally,harmonioualyand in a spirit of understandingwithin their respective spheres, for such harmoniousworking of thethreeconstituents of the democratic State alone willhelpthe peacefuldevelopment',growth and stabilintion of the democraticway of life in this Country,[447 D-B]. (xiv)The power to punishfor contemptlarge as it is, must always be exercisedcautiously,wisely and with circumspection..Frequent or indiscriminateuse of thispriwer in anger or irritatlonwould not help to •ustain the dignity of the court,but maysometimes affei:t it adversely. Wi.se Judgesnever forgetthat the bestwayto sustainthe dignityand statusof theirofficeis todeserverespect from the publicat large by thequality of theirjudgments, the fearlessness,fairness and objecti vity of theirapproach,and by therestraint,dignity and decorumwhich they observe in theirjudicialconduct.We venture to thinkthat what is true of theJudicatureis equallytrue of theLegislature. [501 F-G]. 420 SUPREME COURT REPORTS[1965) I S.C.R. Observations of Lord Atkin in AndrePaul v. AllorneyGeneral of A Trinidad, A.LR. 1936, P.C. 141, referredto. l'er Sarkar J. (i) It is undoubtedlyfor the Courtsto inlerpret the Ccnstituti0n andthereforeArt. 194 ( 3). It follows that when a question ari'iCS in this Country as to wheth-zr the House of Commons po&SCSiCd a panicuJarprivilege at the commencement of the Constitution, that questioo must be settled, and settledonly by the courtsof law.There is no scope of thedreaded'dualism'appearinghere, that is, courts B cntenng into a controversy v.•irh a Housl! of aLegislatureas to what its privileges are. (509 A-BJ. · (ii) The wordsappearingin Ari. 194(3) ·arc "the powers,privileges andimmunitiesof a House ...... shall be those of the House of Com- moI'i." Onecannotimaginemore plain languagethan this.That lan ~uage can onlyhave one meaningand thatis that it wasintended to confer on the State legislaturesthe po.'Crs, privileges and immunities C ""'hic:h the House of Commons in England had. There is no occasion herefor astuteness in denying "·ord"' c.heir plain meaning by professing allegiance 10 asupposedtheory of divi,ion of powers. (511 A-BJ. Brad/aug/r v. Gossett, ( 1884)12 Q.B.0.271, /lurdetl v. Ahbotl. (1811) 14 East I, In re: DelhiLaws, [1951] S.C.R. 747. Pt. M.S.M.Sharma v. Sliri Sri KrishnaSinha. ( 1959) Supp.1 S.C.R.806, Speaker of 1he Lc11i< /a1ive Assembly of Victoria v. Glass (1871)L.R. 3. P.C. App. 560 Quu11 v. Richards, 92 C.L.R.157, Queen v. Richards, 91 C.L.R. 171 D and Fielding v. Thomas, (1896] A.C. 660, referredto. (iii) The power to commit by a general warrant with 1he consequent deprivation of thejurisdiction of the courts vas, oneof the privileges of the House of Commons.That privilege was possessed hy the U.P.Assem bly by virtueof Art.194(3)of theConstilulion.(524 C-D). There is noauthority to showthat the Houseof Commons· possessed thepowersto commit by a generalwarranthccause ii was a superiorE courtof record.Neither the history oi the House, northe judgments in English cases supportthat conteotion.The courtsonly treatedthe House 'a.• entitledto the same respectas a superiorcourt. They did notsaythat the Housewas a superiorcourt. (513 B-C, 522 BJ. May's Parliamentary Practice, 16th Edn. Potter's Outlines of Legal lllslory, (1958Edn.) Anson's Law of lhc Constitution. 6th Edn. Vol.I, referred to.F Bradlaugh v. Cossell, (1884) 12 Q.B.D. 271 Burdell v. Abboll,5 now 165. Sl1uif/ of Middlesex.( 1840) 11 A & E 272. Stockdale v. Ht1T1Sard, (1839)Y AD & E! and Howard v. Gosscll, (1874) IO Q.B. 359. relied on. It is fallacious to say that the right to comn1it hy general v.·3rrant posses.sed by the- House of Commons springs from son1e rule of cornily of courts, or of pre.'iump1ive evidence, or from an agreement between G court! of Jaw and the House.or lastly, from some concession!nlade by the former to the latter. [522E-F]. Allprivilegesof theHouseof Commonsarc basedon law.That law i~ knownas Ll'X Parliam~nti. That la...,· like any otherlaw is a IJw of the land which courtsare entil!edtr. adminisrer. (522F-GJ. It is not for us to start new idc~ aboutprivileges of the Hou'C of Commons, ideas which hnd not ever bcen'imagincd in England. Researches H into the period when theseprivileges Ycre taking: shape c.1n afford no answer to their contents andnaturein 1950. (523 G-H; 524 R-C). SPECIAL REFERENCE 421 A Writers of undoubtedauthority as well as certain recent decisions of B c D E F G H the JudicialCommitteehave treated the powerto commitby a conclusive generalwarrantas a matter .of privileae oftheHouseand not as a ri&ht possessed by it as a superiorcourt. [515 G-H]. May'sParliamentaryPractice, 16th &In. Cases on Con~titutional Law by Keirand Lawson,Halsbury'sLaw's of England, Vol. 28, 467, Dicey's Constitutional Law, 10th&In., referredto. Speaker of the LegislativeAssembly of Victoria v. Glass, Fielding v. Thomas, and Sheriff of Middlesex, relied on. (iv) Tuer! (le.iisions oftheJudicialCommitteemay not be bindingon Indian courts but· they havehigh persuasivevalue, unless shownto be wrong.The question 4s whetherthe House of Commonshad a certain privilege. If judicialnoticeof theprivilegehas to betaken,then under s.57of theEvidenceAct, a reference to theauthorisedlaw reports of Englandwould be legitimate, and if theexistence of the privilege has to be decided as a matter of foreignlaw, thenagainunders. 38 of that Acta reference to thesereportswouldbe justified.And sincethey containdecisionsof one of thehighestcourts in England,we are not entitledto saythatwhatthey call a privilegeof theHouse of Commons of theircountry is not a privilege,unless some equally high authoritytaking thecontraryview is forthcoming.[517 D-F]. (v) It cannot be saidthat the privilegein questioncan be exercised by the IndianState Legislaturesonly subjectto thefundamentalrights ofa citizenguaranteed by the Constitution. In Sharma's casethiscourt laiddownthat the privileges of the House of Commonswhich were conferredon theHouse of a StateLegislature by Art. 194(3) take prece denceover fundamental rights. This decision was correct and did not requirereconsideration.[524 E-F;525 B-C, F]. In re: DelhiLaws Act, 195g, [1951]S.C.R.747, referredto. It was not heldin Sharma's case that Art. 21 takesprecedenceover theprivilegesin Art.194(3).Das C.J.no doubtsaid that therewas no violation of Art. 21 . inthatcasebecausethe deprivationof libertywas accordingto procedureestablishedby law.But thatwas only ar. alter nativereasonfor he couldhave held-as he didin thecase of Art. 19(1)(a)-that Art. 2(being a generalprovisionand Art. 194(3) being •pecial, the formermust yield to thelatter. [531 E-F;532 B-E]. Anotherreason for sayingthat Das C.J.did notboldthat Art. 21 took precedenceover the privilegeto commitby a generalwarrant is the factthatbe heldthat Reddy's case was wronglydecided.That cue had heldthat Art.22 badprecedenceover the privilegeof committal. If Art. 22 didnot haveprecedence,as DasC.J.musthave held since hedidnotacceptthe correctness of Reddy's case, no morecouldhe have heldthat Art. 21 wouldhave precedenceover the privilegeto commit forcontempt.[532 E-F]. (vi)Themajorityin Sharma's case no doubtsaid withoutdiscussion thatthe lawunderArt. 194(3)would be subjectto allfundamentalrights, butthat is so onlybecause Art. 13 says so. [528C-D]. Article 13 makesa lawbad .if it conflicts withfundantentalrights. It cannot be saidthat sinceArt. 13 mightmake laws madeundercl. (3) of Art. 194 void,the privilegesconferred by the secondpart mustalso bevoid.Article 13 has no applicationto theprovisionsof the Consti· tutionitself. It governs on.'y the lawsmade by a StateLegislaturewhich Art. 194(3) is not. The fact that incl. (I) of Art. 194the wordl 422 SUPREME COURT RP.PORTS(1965] I S.C.R. 'sub1ectto theprovisionsof theConstitution' occur, whilethey arr omillcd from cl. (3) is '1 strongindicationthat the Jailer clausewas not iatendedto be so subjecl. [528E-H]. (vii)Whenthere u a conflictbetween a privilegeconferredon a House by thesecond pan of Art.194(3)and a fundamentalright that conflict has to be resolved as in Sharmds CMC by harmonisingthe two provisions.Harmoniousconstruction n1earu that boththe provisions should be given maximumeffect withoutoae of them wipingout the other.In the'instan.tcase the conflict wa• betweenthe privilege of the House to commita personfor contemptwithout that commillal beingliableto be examinedby a courtof law,and the personalliberty of a citizenguaranteed by Art. 21 and the 物杽ठ to move the courts in enforcement of thatrightunderArt. 32 or Art. 226. If the right to move the courts in enforcement of the fundamentalright is givenprece· dcnce,the privilegewhi¢h providesthat if a Housecommitsa personby a generalwarrantthat commiualwould not be reviewed by courts of law, will lose all its effectand it wouldbe as if theprivilegehad not been grantedto a House by the second pan ofArt.194(3). Thi• was not harmoniousconstruction.That being so. it wouldfollowthat when etitioner or issuingany process againstthe petitionerfor its contempt orforinfringement of its privilegesand immunities or·· who paMCS any order on sucha petitiondocs not commitcontempt of the said Legi>lature, andthe said Legislature is not compe!ent to take proceedings againstsuch a Judgein theexerciseand enforcement of it:1 poVv·ers, privilegesand immunities.[534 D; 537D]. (ix)Duringthe fourteenyears that the Con•titution has beenin ope ration,the Legislatureshave not doneanythingto justifythe view that theydo notdeserveto be trusted with power.Though Art.· 211 is A B c D E F G H SPECIAL REFERENCE 423 A not enforceablethe Legislatureshave shownan admirablespirit of res traint aad have notevenonce in all these years discussed the conduct of Judges.We mustnot losefaithin ourpeople,must not thinkthat the Legislatures wouldmisusethe powers given to themby theConsti tutionor that safety lay in judicialcorrection. Such correction may do more harmthan good.In a modem State it is oftennecessaryfor the goodof thecountrythat parallelpowers should exist in differentautho- .6 rities. It is not inevitablethat such powers will clash. [541 C-E]. c D E F G H Aov1soRY JURISDICTION: SpecialReferenceNo. I of 1964. Special Referenceunder Art. 143 of theConstitutionof India. C.K.Daphtary,Attorney-General,H.N. Sanyill, Solicitor General. S. V.Gupte, Addi. Solicitor-General, B. R. L. Iyengar and R. H. Dhebar, forUnionof India. M.C.Setalvad, G.S. Pathak,JagadishSwaroop, S.N. Andlcy, P.L. Vohra,RameshwarNath, MahinderNarain, Harash K. Puri and Suresh Vohra, for Hon'blethe ChiefJusticeand other Judge~ of theAllahabadHigh Court. G. S. Pathak,Jagdish Swaroop,Bishun Singh, Gopal Behari, J.S. Trivedi, S.N. Pawnikar, S.N. Andley, P.L. Vohra and Rameshwar Nath, for Hon'bleMr. JusticeN.U. Beg. N.C. Chatterjee, Asif Ansari,M.K. Ramamurthi, and R.K. Garg forHon'blc Mr. JusticeG.D. Sehgal. H. M. Seervai, Advocate-General, Maharashtra,T. R. Andhya• rujina and S.P. Varma, for U.P.VidhanSabha. N.A. Palkhivala,J.B. Dadachanji, O.C. Mathur and Ravinder Narain, forHon'blethe ChiefJustice,MaharashtraHigh Court. J. M. Thakore,Advocate-General,Gujarat, J. B. Dadachanji, 0. C. Mathur and RavinderNarain, for Hon'blethe ChiefJustice, GujaratHigh Court. D. Narasaraju,N. Ramdar, O.P. Malhotra,B. Parthasarathy, J.B.Dadachanji, O.C. Mathur, and RavinderNarain, for Hon'ble the ChiefJustice, Orissa High Court. MurliManohar Vyqs, S. Murti,B.N. Kirpal,B.L. Khanna, K.K.Jain, Chitale and M. S. Gupta, for Hon'blethe ChiefJustice,. RajasthanHigh Court. Murli Ma1Whar, S. Murti,B. N.Kirpal,B. L. Khanna, K.K. Jain, Cltitale and M. S. Gupta, for Hon'blethe Chief Justice,. MadhyaPradesh High Court. D.P. Singh, S. Balkrishnan, ShantiBhatnagar and Lal Narai,,. Singh, for Hon'blethe ChiefJustice,Patna High Court. ' 'Sup.C.J./65-2 -124 SUPREME COURT REPORTS [ 1965] I S.C.R. A.C. Mitra and D.N.Mukherjee, for Hon'ble Speaker. WestA BengalLegislativeAssembly. S. S. Sanyal, S. K. Acharyya and D. N. Mukherjee, for Hon'ble Chairman,W.B.L.C. H.M. Seervai, Advocate-General, Maharashtra,T.R. Anand yarujina, R .A. Gagrat and V.J. Merchant, forHon'blethe B Speaker/Chairman MaharashtraL.A. & L.C. G.N. Joshi,AtiqurRehman and K.L. Hathi, for Hon'ble the Speaker, GujaratL.A. A tiqurRehman and K.L.' Hathi, for Hon'blethe Speaker, Himachal Pradesh Vidhan Sabha. C B.C. Barua,Advocate-General,Assam and Naunit Lal, for Hon'blethe Speaker,Assam Legislative Assembly. D.M. Sen, Advocate-General, Nagaland and NaunitLal, for NagalandLegislativeAssembly. B.P. Iha, for Hon'blethe Chairman, Bihar Legislative Council D and Hon'blethe SpeakerBihar LegislativeAssembly. K.L. Misra,Advocate-General, Uttar Pradesh,B.C. Misr. , D.D.Chaudhury and C.P. Lal, for theAdvocate-General for the State of U.P. M. Adhikari,Advocate-Genera/,Madhya Pradesh and l.N. E Shroff, for the Advocate-Generalfor the State of Madhya Pradesh. N. Krishnaswamy Reddy,Advocate-General,Madras, V. Ramaswamy and A. V. Rangam, for the Advocate-Generalfor State of Madras. B.V.Subrahamanyam, Advocate-General, State of Andhra F Pradesh, M. JaganadhaRao and T.V.R. Tatachari, for the Advo cate-Generalfor the State of Andhra Pradesh. B. Sen,S.C.Bose and P.K.Bose, for the Advocate-General forthe State of WestBengal. - G.C. Kasliwa/, Advocate-Genera/, State of Rajasthan, M. V. G Goswami, for the State of Rajasthan. S.P.Varma, for theAdvocatefor the State of Bihar. J.P.Goyal, for M/s. Keshav Singh and B. Soloman. M. K. Namb,var and N.N.Keswani, for Bar Council of India. M.K. Nambyar,ChaudhuryHyder Hussain, B. K. Dlurwan, H BishunSingh, Shiv Sastri and S. S. Shukla, for Oudh Bar Associa tion. A B c D SPECIAL REFERENCE (Gajendragadkar C.J.) 425 R. Jethmalani,P.K. Kapila and A. K. Nak. for Western IndiaAdvocatesAssociation(Intervener). S. N. Kakar, C. S. Saran, G. P. Gupta, and S. C. Agarwal, for AllahabadHigh ·court Bar Association(Intervener). M.K. Nambyar and V.A. Seyid Muhammad, for BarAssocia- tionof India(Intervener). R. V. S. Mani, Shaukat Husain,E. C. Agarwala, Shahzadi Mohiuddin and P. C. Agarwal, forApplicants-Interveners: (a) LokRaksha Samaj(Sewak), (b) All IndiaCivil LibertiesCouncil ( c) Sapru Law Society. M. K.Ramamurthi, R. K. Garg., D. P. Singh and S. C. Agar wal for Applicant-Intervener Delhi Union ofJournalists; K.RajendraChoudhury and K. R. Choudhury, forApplicant -Intervener,Bihar WorkingJournalists Union. Chinta Subba Rao, for Applicant-Intervener,Institute of Public Opinion. GAJENDRAGADKAR C.J. delivered the Opinionon behalfof SUBBA RAO, WANCHOO, HIDAYATULl:AH, SHAH AND RAJAGOPALA AYYANGAR JJ. and himself. SARKAR J. delivereda separate Opinion. Gajendragadkar c:J. This is Special ReferenceNo. 1 of1964 bywhichthe President ha~ formulatedfive questionsfor theopi- E nionof thisCourtunder Article 143(1) of theConstitution.The Articleauthorisesthe President to referto this Court questions of law or factwhichappearto himto havearisen or are likely to ariseand whichare of sucha natureand of suchpublic im portancethat it is expedient to obtainthe opinionof the Supreme 1 , Court upon them.Article 143(1) providesthat whensuch questionsare referred to thisCourtby the President, the Court may,after such hearing as it thinks fit, reportto the President its opinionthereon.In his Order of Referencemade on March 26, 1964, the President has ex9ressed his conclusionthat the questions oflawset outin the Order ofReferenceare of sucha nature G H and of suchpublicimportancethat it is expedientthat the opinion ofthe Supreme Courtof ,India shouldbe obtainedthereon. lt appears that on March14, 1964,the Speaker of the Legisla tiveAssemblyof Uttar Pradesh administered,in thenameof and underthe ordersof theLegislativeAssembly (hereinafterreferred to as "theHouse"), a reprimandto Keshav Singh, who is a resi ''ere impleaded as respondents Mr. Verma,the Speaker, Vidhan Sabha, Lucknow,the Stateof Uttar Pradeshand the Mar shal,VidhanSabha.Thesepetitionswere filed on March23, 1964. Apprehendingthat thesedevelopmentshad givenrise to a very seriousproblem,aFull Bench ·of the AllahabadHigh Court consistingof 28Judgestook up onthesameday the petitions presentedbefore them by theirtwo colleaguesat Lucknow, directedthat the saidpetitionsshould be admitted arid ordered theissueof noticesagainstthe respondentsrestraining the Speaker from issuingthe warrantin pursuanceof thedirectionof the Housegiven to him on March 21. 1964,and fromsecuringexe cutionof thewarrantif alreadyissued, and restrainingthe Gov ernmentof U.P. and the Marshalof theHousefrom executing thewarrant. Meanwhile,on March25, 1964,Mr. Solomon,the learned Advocate of KeshavSingh, presenteda similarpetitionto the High Courtunder Art. 226.He prayedfor a writof mandamus on thesame lines as the petitionsfiled by thetwolearnedJudges, andhe urgedthat suitableorder should be passedagainst the House,becauseit hadcommittedcontempt of Court. To his petitionMr. Solomonhad impleadedseven respondents;they were:the Speakerof theHouse,Mr. Verma: the Legislative Assembly, U.P.; theMarshalof the U.P. LegislativeAssembly; E F G H SPECIAL REFERENCE (Ga;endragadkar C.J.) 429' A Mr. Saran and Mr.Ahmad,Membersof theLegislative Assembly, U.P., who broughtto thenoticeof theHousethe orderspassed by the two learnedJudges of the HighCourt;and the Stateof Uttar Pradesh . .. 'This applicationagain was heard by a FullBehchof 28 Judgesof theAllahabadHigh Courton March25, andafter admittingthe petition, an interimorder was passed prohibiting the implementationof theresolutionthe validity of which was challengedby thepetitioner.At thepreliminaryhearing of this petition,notice had beenservedon theSeniorStandingCounsel who was present in Court.He statedto theCourtthat he had c no instructionsat that stage to opposethe application.That is why the Court issued noticeof theapplicationand passedwhat itthoughtwould be appropriateorders. . On the same day, theHousepasseda clarificatoryresolution. Thisresolutionbegan with the statementthat a. misgiving was beingexpressedwith regardto themotionpassed by theHouse . D in that itcouldbe construedas deprivingthe personsconcerned of an, opportunityof explanation,and it addedthat it was never theintentionof theHousethat a chargeagainsta HighCourt Judgefor committingbreach of privilegeor contempt of the House,should be disposedof in a mannerdifferent from that governingbreach of privilegeor contemptcommitted by any Eotherperson.The House,therefore,resolved that the question ofcontempt may bedecidedafter giving an opportunity of ex planationto thepersonsnamed in theoriginalresolutionof March·20, 1964 accordingto rules. As a result of this resolution,the warrantsissued for the F arrestof the two learnedJudges and Mr. Solomon werewith drawn, with theresultthat the two learnedJudges and Mr. Solomon were placed under an obligationto appearbefore the House and offertheirexplanations as to why the Houseshould notproceed ag~t themfor theirallegedcontemptof theHouse. When theincidents which happenedin suchquicksuccession G from March 19 to.March25, 1964,had reached this stage, the Presidentdecided to exercise his powerto makea reference ·to this Cou¢ under Art. 143 (1) oftheConstitutionon MarcJi. 26, 1964.The Order of Reference shows thatit appearedto the Presidentthat the incidentsin questionhad given rise to a serious H conflictbetweena HighCourt and a State Legislaturewhich in volved importantand complicatedquestions of law regardingthe powers and jurisdictionof theHighCourtand its Judges in re lation to the State Legislatureand its officers andregardingthe 1 ~30 SUPlll!ME COURT REPORTS [I 965] l S.C.R. powers, privilegesand immunitiesof theStateLegislatureand A its members in relation to the HighCourtand its Judges in the dischargeof theirduties.The Presidentwas alsosatisfiedthat thequestions of lawset outin his Order ofReferencewere of such a natureand of such public importancethat it was expedient toobtainthe opinionof this Court on them.That is the genesis ofthepresentreference. B The questionsreferred to thisCourtunder this Reference read as follows :- ( 1) Whether, on thefactsand circumstances of thecase,it wascompetentforthe LucknowBench oftheHighCourtof Uttar Pradeshconsistingof the Hon'ble Mr. JusticeN. U. Beg and the Hon'ble Mr_ Justice G. D. Sahgal,to entertainand dealwiththe petitionof Mr.Keshav Singh challengingthe legality ofthesentenceof imprisonmentimposed upon him by theLegislativeAssembly of Uttar Pradesh for its con temptand for infringementof its privileges and to pass ordersreleasingMr. Keshav Singh on bailpendingthe disposalof hissaidpetition; (2) Whether,on thefactsand circumstances of the case,Mr. Keshav Singh, by causingthe petition tobepresentedon hisbehalfto theHighCourtof Uttar Pradesh as aforesaid,Mr. B. Solomon, Advocate, bypresentingthe saidpetitionand the saidtwo Hon'ble Judgesby entertainingand dealingwith the saidpeti tionand orderingthe releaseof Shri Keshav Singh on bailpendingdisposalof thesaidpetitioncomntitted contemptof theLegislative Assembly of UttarPra- desh· - ' (3) Whether, on thefactsand circumstances ofthecase,it wascompetentfor theLegislativeAssem blyof UttarPradesh to directthe productionof the saidtwo Hon'bleJudges and Mr. B. Solomon, Advo cate,beforeit incustody or tocallfor theirexpbnation forits contempt; ( 4) Whether, on thefactsand circumstances ofthe case, it wascompetentfor theFullBenchof theHighCourtof Uttar Pradesh to entertainand deal withthe petitionsof thesaidtwo Hon 'bleJudgesand Mr. B. Solomon,Advocate,and to passinterimorders 1cstrainingthe Speaker of the LegislativeAssembly c D E ·-.. II SPE~ REFERENCE (Gajendragadkar C.J.) 431 A of Uttar Pradesh and otherrespondents to the said petitionsfrom implementingthe aforesaiddirection of thesaidLegislative Assemb~y; and (5) Whethera Judgeof a HighCourt who entertainsor dealswith a petitionchallengingany order Bor decisionof a Legislatureimposing any penalty on thepetitioneror issuingany processagainst the peti tionerfor its contemptor forinfringementof itsprivi leges andimmunitiesor who passes any orderon such petitioncommitscontemptof the sairl Legislatureand whetherthe saidLegislature .is competentto takepro- Cceedingsagainst such a Judge in theexerciseand enforcementof its powers, privilegesand immunities. Atthehearingof thisReference;Mr. Varmahas raiseda preliminaryobjection on behalfof theAdvocate-Generalof Bihar. He contendsthat the presentReference is invalid under Art. D 143 ( l) because the questions referred to this Courtare notre lated to anyof theentries in ListsI andIII and as such,they cannot be saidto beconcernedwith any of thepowers,duties orfunctionsconferredon t.he President by the relevantarticles oftheConstitution.The argumentappearsto bethatit is only in respectof matters fallingwithin the powers, functior.3 and Edutiesof thePresidentthat it would be competentto him to framequestionsfor theadvisoryopinion of this Court under Art. 143 (I ) . In our opinion, this contention is wholly misconceived. The words ofArt. 143(1) are wide enoughto empowerthe President to forward to thisCourtfor its advisoryopinion any questionof Jaw or fact which hasarisenor which is likelyto Farise,providedit appears to thePresidentthat sucha question is ofsucha natureor of such publicimportancethat it is expe dient to obtainthe opinion of thisCourtupon it. It is quitetrue thatunderArt. 143 ( 1) even if questi01;1s arereferred to this Courtfor its advisory apinion, this Court is not bound to give such advisoryopinion in everycase.Art. 143 (1) providesthat Gafter the questionsformulated by the Presidentare received by this Court,it may, after such hearing as it thinks fit, report to the President its opinionthereon.The use of the word "may" in contrast with the useof the word "shall" in theprovisionpres cribed by Art. 143( 2) clear!) bringsout the factthat in a given case, this Courtmay respectfully refuseto expressits advisory Hopinion if it is satisfiedthat it shouldnot expressits opinionhaving regard to thenatureof thequestionsforwarded to it andhaving regard to otherrelevant facts and circumstances.Art. 143(2) 432 SUPREME COURT REPORTS [1965] I S.C.R. deals with casesin whichthe Presidentmay refera di1pute to A this Coun notwithstandingthe prohibitionprescribed by the proviso to An. I 31, and itadds that whensuch a reference is made, the Court shall, aftersuch hearingas it thinksfit. report tothe President itsopinionthereon. In other words. whereasin thecase of reference made under An. 143(2) it is the constitu tionalobligation of this Court to make a repon on that referenceB embodyingits advisoryopinion,in a reference made underArt. 143 (I) there is no such obligation. In dealingwith this latter class of reference,it is open tothis Coun to considerwhether it should make areportto thePresidentgiving its advisoryopinion onthequestionsunder referec:ce. This position,however,has no bearing on thequestion raised by Mr. Vanna. The validity of theobjectionraised by Mr. Varma must be judged in thelight of the words of An. 143(1) themselvt...; and thesewordsarc of such wideamplitude that it wouldbe impossibleto accedeto theargumentthat the narrow test suggested by Mr. Varma has to be appliedin determining the validity of the referenceitself. What Art. 143 (I) requires is that the President should be satisfied that aquestion of law or facthas arisen or is likelyto arise. He shouldalso be satisfied that such a question is of sucha nature and of such public importance that it is expedientto obtain the opinion of this Coun on it. Prima facic, the satisfaction of thePresident on both thesecountswould justifythe reference,and it is onlywhere this Court feels that it would be inadvisablefor it toexpressits advi soryopinion on it that it may respectfullyrefuse to express any opm1on. But there canbe no doubt that in thepresentcase it would be impossibleto suggest that questions of fact and law whichhave been referredto this Court, have not arisen and they are not of considerablepublic importance.Therefore, we do not thinkthere is any substancein thepreliminary objection raisedby Mr. Varma. The references made to this Court since the Constitutionwas adoptedin 1950 illustr~te how it would be inappropriate to apply thenarrowtest suggestedby Mr. Varma in determiningthe com petence or validity of the reference. The firstSpecialReference No.1 of 1951was made to this Court to obtain the advisory opinionof this Court on thequcsti6nabout the validity and constitutionality of the materialprovisions of the DelhiLaws Act, 1912, the Ajmer-Merwara(Extension of Laws) Act, 1947, and the Part C States (Laws Act,1951 ( 1). The secondSpecial (I) In"' the Dr/hi lA•·s ACI, 191~. (1951] S.C.R. 747. c D E F G H A B c D E F G H SPECIAL REFERENCE( GajendragadkarC.J.) 4 3 3 Reference(1) was made in 1958.This hadreferenceto the validityof certainprovisionsof theKeralaEducation Bill. 1957. whichhad beenpassedby theKeralaLegislativeAssembly, but hadbeenreservedby theGovernorfor theconsiderationof the President.The third Special Reference(') was madein 1959. andit invitedthe advisoryopinion of thisCourtin regardto the validityof thematerialprovisionsof an agreementbetween the PrimeMinistersof Indiaand Pakistanwhich was described as the !ndo-PakistanAgreement. The fourth Special Reference(') was madein 1962.By thisreference,the Presidentforwarded fortheadvisoryopinion of thisCourtquestionsin regardto the validityof therelevantprovisionsof a draftBill which was intended to be moved in the Parliamentwith a viewto amend certainprovisionsof the Sea CustomsAct, 1878and the Central Excisesand Salt Act, 1944. It wouldthus be seenthat the ques tions so farreferredby thePresidentfor theadvisoryopinion ofthisCourtunder Art. 143 (I) do notdisclosea uniformpattern andthat is quiteclearlyconsistentwith the broadand widewords usedin Art. 143(1). It is hardlynecessary to emphasisethat the questionsof law whichhave beenforwarded to this Courton thepresentoccasion a |
