1. Espousing the cause of the general public, two members of the State Legislature have filed this petition alleging that respondent 2 who is a member of the State Legislative Council had on the floor of that House made certain derogatory remarks touching the conduct of the Judges of this Court in violation of Article 211 of the Constitution and requesting this Court to issue a writ under Article 226 of the Constitution,-(i) directing respondent 1 the Chairman of the Legislative Council to produce the records of the proceedings of the Karnataka State Legislate Council dated 11-8-1978 relating to the statements made by the second respondent as stated in the annexure marked Ext. 'A' and (ii) quashing the entire proceedings therein by declaring the said proceedings to be unconstitutional and illegal as violating the provisions of Art. 211 of the Constitution of India.
2. This case involves great constitutional principles touching parliamentary democracy and independence of the judiciary and hence requires a cautious approach. An independent judiciary, according to Sri S. R. Das Gupta, an illustrious Chief Justice of this Court, is a judiciary which consists of Judges who are independent of themselves. I have not come across a better definition of that expression. A judge should not allow his judgment to be influenced by personal prejudice. He should not allow passion to overtake reason. Whatever may be the provocation, he should not transgress law and abandon justice. Reason is the element which distinguishes man from other creations of God and judicial restraint is the soul of administration of justice.
3. We are in this case concerned with two important bodies, namely, the Legislature and the Judiciary. Referring to them Gajendragadkar, C. J. in In re: Under Art. 143, Constitution of India : AIR1965SC745 hereinafter referred to as the U. P. Legislature Case) observed in paras 43 and 44 of that decision as follows:--
'Speaking broadly, all the legislature chambers in our country today are playing a significant role in the pursuit of the ideal of a Welfare State which has been placed by the Constitution before our country, and that naturally gives the legislative chambers a high place in the making of history today. The High Courts also have to play an equally significant role in the development of the rule of law and there can be little doubt that the successful working of the rule of law is the basic foundation of the democratic way of life. In this connection it is necessary to remember that the status, dignity and importance of these two respective institutions, the Legislatures and the Judicature, are derived primarily from the status, dignity and importance of the respective causes that are assigned to their charge by the Constitution. These two august bodies as well as the Executive which is another important constituent of a democratic State, must function not in antinomy nor in a spirit of hostility, but rationally, harmoniously and in a spirit of understanding within their respective spheres, for such harmonious working of the three constituents of the democratic State alone will help the peaceful development, growth and stabilisation of the democratic way of life in this country.
But when, as in the present case, a controversy arises between the House and the High Court, we must deal with the problem objectively and impersonally. There is no occasion to import heat into the debate or discussion and no justification for the use of strong language............'
4. Art. 211 of the Constitution which corresponds to S. 40 of the Government of India Act, 1935, and to Art. 121 of the Constitution which related to the Parliament reads as follows:-
'211. No discussion shall take place in the Legislature of the State with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties.'
A summary of the rulings or opinions expressed in the Central Legislature Assembly as it was constituted prior to the coming into force of the Constitution and in the Parliament thereafter is to be found in S. S. More's 'Practice and Procedure of Indian Parliament' 1960 Edn., at pages 321 and 322. It is as follows:-
'CRITICISM OF COURT AND JUDGES:
No discussion is to take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge.
Standing Order No. 29(iv) of the Legislative Assembly banned reflections upon the conduct of any Court of Law in the exercise of its judicial functions. But the rules of the Provisional Parliament, the House of the People and the Council of States have no such provision.
As far as possible members should avoid any reflection on the High Court or High Court Judges.
Members must not criticise a High Court, members ought not to say anything which is a reflection on any High Court Judge. Depreciatory remarks against a Judge of the High Court cannot be allowed in the House. No aspersions can be made against the Judges. Members should not make any remarks concerning the correctness or otherwise of the decisions of the High Courts.
In a later ruling the Speaker rules that no member can discuss the merits of an order of a High Court as the House cannot sit in judgment over the proceedings of the Court nor a copy of the proceedings of the House relating to the matter on which a High Court has passed order can be sent to the Court as such action might be considered as interference in the course of justice.
Sweeping remarks on the judiciary are not permissible.'
The rulings or opinions referred to above have been expressed either on the basis of S. 40 of the Government of India Act, 1935, or on the basis of Article 121 of the Constitution. The other Article of the Constitution which requires to be considered in this case is Art, 194 of the Constitution which corresponds to Art, 105 which is enacted in relation to the Union Parliament. Article 194 as it stood prior to its amendment by the 42nd Amendment of the Constitution read as follows:-
'194(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 ever 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 the Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution.
(4) The provisions of cls. (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature.'
Clause (3) of Art, 194 after its amendment by the 42nd Amendment of the Constitution reads:-
'(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 those of that House, and of its members and committees, at the commencement of S. 34 of the Constitution (Forty-second Amendment) Act, 1976, and as may be evolved by such House of the Legislature of a State, so far as may be, in accordance with those of the House of the People, and of its members and committees where such House is the Legislative Assembly and in accordance with those of the Council of States, and of its members and committees where such House is the Legislative Council.'
(The rest of the Article remains the same as before).
I shall revert to this Article again after referring to the corresponding provisions in the English and American Constitutions.
5. In Vol. 17 of Encyclopaedia Britannica, 1962 Edn., at p. 312 under the title 'Parliament', it is stated as followed:
' Freedom of speech has been one of the most cherished privileges of Parliament from early times. Constantly asserted and often violated, it was finally declared by the Bill of Rights 'that the freedom of speech, and debates and proceedings in Parliament, ought not to be impeached or questioned in any court or place our of Parliament'. Such a privilege is essential to the independence of Parliament and to the protection of members in discharge of their duties..................'
6. In Wade and Phillips' Constitutional Law, Fifth Edition, at page 120, while dealing with the privileges of the British Parliament, the learned authors observe:-
' The privilege of freedom of speech, though so sell established as to be unquestioned, is manifestly of the first importance. It is today the only substantial privilege. Finally it was enacted by the Bill of Rights, 1989, 'that the freedom of speech or debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.' No action will lie against a member of Parliament for words spoken by him in the course of parliamentary proceedings, and similarly no action will lie for any publication among members of Parliament by order of the House or in the ordinary course of parliamentary business. It was held in Lake v. King (1970) 1 Saund 131, that an action would not lie for defamatory matter contained in a petition printed and delivered to members.'
Proceeding further at p. 126 the learned authors state:-
'Questions of privilege have been a source of conflict between the House of Commons and the courts. Parliament has always held the view that whatever matter arises concerning either House of Parliament ought to be discussed and adjudged in that House to which it relates and not elsewhere; and that the existence of a privilege depends upon its being declared by the High Court of Parliament to be part of the ancient law and custom of Parliament....... In Bradlaugh v Gossett (1884) 12 QBD 271, the Court of Queen's Bench refused to declare void an order of the House of Commons preventing Charles Bradlaugh, who had been duly elected member for Northampton, from taking the oath. It was held that the House of Commons had the exclusive right to regulate its own proceedings, and that no court could interfere with the exercise of such right.'
Section 6 of Art. I of the Constitution of United states of America reads as follows:
' the Senators and Representatives shall receive a compensation for their services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all cases, except Treason, Felony and Breach of the Peace, be privileged from arrest during their attendance at the Sessions of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in wither House, they shall not be questioned in any other Place.'
It is stated that the privilege is not limited to words spoken in debate or uttered in a speech, but applies also to written reports presented to committees, to the act of voting, etc. To the office of a Senator or Representative. 'These privileges' said Chief Justice Parson of the Supreme Court of Massachusetts 'are secured not with the intention of protecting the members against prosecutions for their conduct, but to support the rights of the people by enabling their representatives to exercise the function of their office without fear of prosecution, civil or criminal.'
7. Now coming back to Art. 194 of the constitution, it is seen that whereas the freedom of speech in the Legislature of every State is in Art. 194(1) made subject to the provisions of the Constitution and to the rules and standing orders regulating the procedure of the Legislature, the privileges and immunities referred to in Cls. (2), (3) & (4) are not made subject to any other provisions of the Constitution. Art. 194(2) of the Constitution states that 'no member of a 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 such a Legislature of any report, paper, votes or proceedings.' The Supreme Court had occasion to express its opinion on Art. 194(2) of the Constitution at least in two cases. In M. S. M. Sharma v. Sri Krishna Sinha : AIR1959SC395 in which the question which arose for consideration before the Supreme Court was whether the freedom of press guaranteed under Act. 19(1)(a) of the Constitution can be set at naught by the application of Art. 194 of the constitution. In the course of that decision the Supreme Court observed at para 26 as follows:-
' Article 194 has already been quoted in extenso. It is quite clear that the subject-matter of each of its four clauses is different. Clause (1) confers on the members freedom of speech in the Legislature, subject, of course, to certain provisions therein referred to. Clause (2) gives immunity to the members or any person authorised by the House to publish any report, etc., from legal proceedings. Clause (3) confers certain powers, privileges and immunities on the House of the Legislature of a State and on the members and the committees thereof and finally Clause (4) extends the provisions of Cls. (1) to (3) to persons who are not members of the House, but who, by virtue of the Constitution., have the right to speak and otherwise to take part in the proceedings of the House or any committees thereof. In the second place, the fact that Clause (1) has been expressly made subject to the provisions of the Constitution, but Cls. (2) to (4) have not been stated to be so subject indicated that the Constitution makers did not intend Cls. (2) to (4) to be subject to the provisions of the Constitution. If the Constitution makers wanted that the provisions of all the clauses should be subject to the provisions of the Constitution, then the Article would have been drafted in a different way, namely, it would have started with the words: 'Subject to the provisions of this Constitution and the rules and standing orders regulating the procedure of the Legislature...............' and then the subject matter of the four clauses would have been set out as sub-class (i), (ii), (iii) and (iv); so as to indicate that the overriding provisions of the opening words qualified each of the sub-clauses. In the third place, it may well be argued that the words 'regulating the procedure of the Legislature' occurring in Clause (1) of Art, 194 should be read as governing both 'the provisions of the Constitution ' and ' the rules and standing orders'. So read freedom of speech in the Legislature becomes subject to the provisions of the Constitution regulating the procedure of the Legislature, that is to say, subject to the Articles relating to procedure in Part VI including Articles 208 and 211, just as freedom of speech in Parliament under Art. 105(1), on a similar construction, will become subject to the Articles relating to procedure in Part V including Arts. 118 and 121. The argument that the whole of Art. 194 is subject to Art. 19(1)(a) overlooks the provisions of Cl (2) of Art. 194. The right conferred on a citizen under Art, 19(1)(a) can be restricted by law which falls within Clause (2) of that Article and he may be made liable in a Court of law for breach of such law, but Clause (2) Art. 194 categorically lays down that no member of the Legislature is to be made liable to any proceedings in any Court in respect of anything said or any vote given by him in the Legislature or in committees thereof and that no person will be liable in respect of the publication by or under the authority of the House of such Legislature of any report, paper or proceedings. The provisions of Clause (2) of Art. 194, therefore, indicate that the freedom of speech referred to in Clause (1) is different from the freedom of speech and expression guaranteed under Article 19(1)(a) and cannot be cut down in any way by any law contemplated by Clause (2) of Art. 19.'
Although the correctness of some of the observation made by the Supreme Court in the above case was doubted in the U. P. Legislature, case : AIR1965SC745 , in so far as the observations made in relation to Art. 194(2) of the Constitution the Supreme Court expressed its concurrence. In para 32 of the U. P. Legislature case, the Supreme Court observed thus:
'Having conferred freedom of speech on the legislators, Clause (2) emphasises the fact that the said freedom is intended to be absolute and unfettered. Similar freedom is guaranteed to the legislators in respect of the votes they may give in the Legislature or any committee thereof. In other words, even if a legislator exercises his right of freedom of speech in violation, say, of Art. 211, he should not be liable for any action in any court. Similarly, if the legislator by his speech or vote is alleged to have violated any of the fundamental rights guaranteed by Part III of the Constitution in the Legislative Assembly he would not be answerable for the said contravention in any court. If the impugned speech amounts to libel or becomes actionable or indictable under any other provision of the law, immunity has been conferred on him from any action in any court by this clause. He may be answerable to the House for such a speech and the Speaker may take appropriate action against him in respect of it; but that is another matter. It is plain that the Constitution makers attached so much importance to the necessity of absolute freedom in debates within the legislative chambers that they thought it necessary to confer complete immunity on the legislator from any action in any Court in respect of their speeches in the legislative chambers. Thus, clause (1) confers freedom of speech on the legislators within the legislative chambers and clause (2) makes it plain that the freedom is literally absolute and unfettered.' Proceeding further in the same decision dealing specifically with Art. 211 of the Constitution in paras 63 to 67, the Supreme Court observed as follows:-
'63. That take us to Art. 211. This Article provides that no discussion shall take place in the Legislature of a State with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties. This provision amounts to an absolute constitutional prohibition against any discussion in the Legislature of a State in respect of the judicial conduct of a Judge of this Court or of the High Court. Mr. Setalvad who appeared for the Judges has based his argument substantially on the provisions of this article. He contends that the unqualified and absolute terms in which the constitutional prohibition is couched in Article 211 unambiguously indicate that the conduct of a Judge in the discharge of his duties can never become the subject-matter of any action taken by the House in exercise of its powers or privileges conferred by the latter part of Art. 194(3). If a Judge in the discharge of his duties commits contempt of the House, the only step that can be taken against him is prescribed by Article 121. Article 121 provides that no discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as herein after provided. Reading Arts. 121 and 211 together, two points clearly emerge. The Judicial conduct of the Judge cannot be discussed in the State Legislature. It cab be discussed in the Parliament only upon a motion for presenting an address to the President for the removal of the Judge. The Constitution-makers attached so much importance to the independence of the Judicature in this country that they thought it necessary to place them beyond any controversy, except in the manner provided by Art. 121. If the judicial conduct of a Judge cannot discussed in the House, it is inconceivable that the same conduct can be legitimately made the subject-matter of action by the House in exercise of its powers under Art. 194(3). That, in substance, is the principal argument which has been urged before us by Mr. Setalvad.
'64. On the other hand, Mr. Seervai had argued that the effect of the provisions contained in Art. 211 should not be exaggerated. He points out that Article 211 appears in Chap. III which deals with the State Legislature and occurs under the topic 'General Procedure', and so, the only object which it is intended to serve is the regulation of the procedure inside the chamber of the Legislature. He has also relied on the provisions of Art. 194(2) which expressly prohibit any action against a member of the Legislature for anything said or any vote given by him in the Legislature. In other words, if a member of the Legislature contravenes the absolute prohibition prescribed by Art. 211, no action can be taken against him in a court of law and that, says Mr. Seervai, shows that the significance of the prohibition contained in Art. 211 should not be over-rated. Besides, as a matter of construction Mr. Seervai suggests that the failure to comply with the prohibition contained in Art. 211 cannot lead to any constitutional consequence, and in support of this argument he has relied on a decision of this Court in State of U. P. V. Manbodhan Lal Srivastava, : (1958)IILLJ273SC . In that case, this Court was dealing with the effect of the provisions contained in Art. 320 of the Constitution. Art. 320 prescribes the functions of the Public service Commissions, and by Clause (3)(c) it has provided that the Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted on all disciplinary matters affecting a person serving under the Govt. of India or the Govt. of a State in a civil Capacity, including memorials or petitions relating to such matters. It was held that the provisions of this clause were not mandatory and did not confer any right on a public servant, so that the absence of consultation or any irregularity in consultation did not afford him a cause of action in a court of law. Mr. Seervai's argument is that the words used in Art. 211 should be similarly construed and the prohibition on which Mr. Setalvad relies should be deemed to be merely directory and not mandatory.
65. We are not impressed by Mr. Seervai's arguments. The fact that Art. 211 appears under a topic dealing with 'Procedure generally', cannot mean that the prohibition prescribed by it is not mandatory. As we have already indicated, in trying to appreciate the full significance of this prohibition, we must read Arts. 211 and 121 together. It is true that Art. 194(2) in terms provides for immunity of action in any court in respect of a speech made by a member or a vote given by him in the Legislative Assembly. But this provision itself emphatically brings out the fact that the Constitution was anxious to protect full freedom of speech and expression inside the legislative chamber and so, it took the precaution of making a specific provision to safeguard this freedom of speech and expression by saying that even the breach of the constitutional prohibition prescribed by Art. 211 should not give rise to any action. Undoubtedly, the Speaker would not permit a member to contravene Art, 211; but if, inadvertently, or otherwise, a speech is made within the legislative chamber which contravenes Art. 211, the Constitution-makers have given protection to such a speech from action in any court. The House itself may and would, no doubt, take action against him.
66. It is also true that if a question arises as to whether a speech contravenes Art. 211 or not, it would be for the Speaker to give his ruling on the point. In dealing with such a question, the Speaker may have to consider whether the observations which a member wants to make are in relation to the conduct of a Judge in discharge of his duties, and in that sense, that is a matter for the Speaker to decide. But the significant fact still remains that the Constitution-makers thought it necessary to make a specific provision by Art. 194(2) and that is the limit to which the Constitution has gone in its objective of securing complete freedom of speech and expression within the four-walls of the legislative chamber.
67. The latter part of Art. 194(3) makes no such exception, and so, it would be logical to hold that whereas a speech made in contravention of Art. 211 is protected from action in a court by Art. 194(2), no such exception or protection is provided in prescribing the powers and privileges of the House under the latter part of Art. 194(3). If a Judge in the discharge of his duties passes an order or makes observations which in the opinion of the House amount to contempt, and the House proceeds to take action against the Judge in that behalf, such action on the part of the House cannot be protected or justified by any specific provision made by the latter part of Art. 194(3). In our opinion, the omission to make any such provision when contrasted with the actual provision made by Art 194(2) is not without significance. In other words, this contrast leads to the inference that the Constitution-makers took the view that the utmost that can be done to assure absolute freedom of speech and expression inside the legislative chamber, would be to make a provision in Art. 194(2); and that is about all. The conduct of a Judge in relation to the discharge of his duties cannot be the subject-matter of action in exercise of the powers and privileges of the House. Therefore, the position is that the conduct of a Judge in relation to the discharge of his duties cannot legitimately be discussed inside the House, though if it is, no remedy lies in a court of law......'
8. It is in the above terms, the Supreme Court while holding that in certain circumstances it was open to the High Court to take action in a matter which came within the latter part of Art. 194(3) of the Constitution as it stood then, emphasised that Art. 194(2) of the Constitution stood entirely on a different footing and the immunity guaranteed thereunder was inviolable.
9. In Taj Kiran Jain v. Sanjiva Reddy : 1SCR612 where Art. 105(2) which corresponded to Art. 194(2) arose for consideration, in paras 7 and 8 the Supreme Court observed as follows:-
'7. Mr. Lekhi in arguing this appeal drew our attention to an observation of this Court in Special Ref No. 1 of 1964 : AIR1965SC745 where this court dealing with the provisions of Art. 212 of the Constitution pointed out that the immunity under that Article was against an alleged irregularity of procedure but not against an illegality, and contended that the same principle should be applied here to determine whether what was said was outside the discussion on a Calling attention Motion. According to him the immunity granted by the second clause of the one hundred and fifth article was to what was relevant to the business of Parliament and not to something which was utterly irrelevant.
8. In our judgment it is not possible to read the provisions of the article in the way suggested. The article means what it says in language which could not be plainer. The article confers immunity inter alia in respect of 'anything said......... in Parliament.' The word 'anything' is of the widest import and is equivalent to 'everything.' The only limitation arises from the words 'in Parliament' which means during the sitting of Parliament and in the course of the business of Parliament. We are concerned only with speeches in Lok Sabha. Once it was proved that Parliament was sitting and its business was being transacted, anything said during the course of that business was immune from proceedings in any court. This immunity is not only complete but is as it should be. It is of the essence of parliamentary system of Government that people's representatives should be free to express themselves without fear of legal consequences. What they say is only subject to the discipline of the of the rules of Parliament, the good sense of the members and the control of proceedings by the Speaker. The courts have no say in the matter and should really have none.'
10. This is not a case where any individual's fundamental right is involved. No prayer based on any ordinary civil or criminal law is made in this case. This is not a case where any objectionable words had been used in the course of the speech of a member made outside the agenda of the House or on a subject which had been disallowed by the Chairman. The specific case is that some words which contravened Art. 211 of the Constitution had been used by the Member and the Chairman had not expunged even though he was bound to do so. In substance what is prayed for is that this court should in exercise of its power under Art, 226 of the Constitution investigate into the correctness of the action or ruling of the Chairman of the House and if it is found that any portion of the speech made by the member contravenes Art. 211 of the Constitution, then this Court should direct that such part should be expunged from the proceedings of the House or declare them as non-existent. In other words, the petitioners request the Court to exercise supervisory jurisdiction over the proceedings of the house even though it may be to the limited extent of enforcing obedience to Art. 211 of the Constitution. If the prayers made by the petitioners have to be granted, the following steps have to be taken by this Court:-
(1) Issue of notices to the Chairman of the House and the member concerned;
(2) Calling for the relevant records relating to the proceedings of the House;
(3) Investigation into the truth or otherwise of the words used in the speech of the member concerned;
(4) determination of the issue whether any part of the speech contravened Art. 211 of the Constitution;
(5) Decision of the question relating to the correctness of the decision of the Chairman or on the question relating to his omission to take action; and
(6) If it is found that the decision of the Chairman was erroneous or his omission was unconstitutional, then to issue direction to him or to the House to expunge the objectionable part from the proceedings of the House or to make a declaration that they are unconstitutional.
11. It was contended that the expression 'proceedings in any court' appearing in Art. 194(2) of the Constitution related only to criminal or civil proceedings and not to proceedings under Art. 226 of the Constitution which has conferred power on the High Court to enforce the provisions of the Constitution in appropriate cases. It is difficult to place such a narrow construction on the expression 'proceedings' appearing in Art. 194(2) of the Constitution. The expression, having regard to the object with which Art. 194 is enacted, should be given the widest meaning possible and proceedings under Art. 226 of the Constitution also fall within the scope of that expression. No court whether it is the Supreme Court or a High Court or a Civil or a criminal court can initiate proceedings against a member in respect of anything said on the floor of the House.
12. It was next contended that since no relief was being asked against respondent 2 a mere issue of notice would not amount to making him liable for any proceedings. As mentioned earlier, the issue of notice and the calling for the records of the house are only two preliminary steps in the judicial process involved in this case in the event of the case being heard after the stage or preliminary hearing. The substantive prayer made in this writ petition is that the proceedings of the House should be sent for and they must be quashed. Necessarily a decision on that question would involve the process of ascertaining the words used by the member on the floor of the House and an investigation into the question whether those words contravened Article 211 of the Constitution. It cannot, therefore, be said that by merely issuing a notice in this case, the court would not be making the member 'liable to any proceedings.'
13. The next question which arises for consideration is whether in a case of this type, it would be open to the Court to call for the records of the House. Art. 212(1) of the Constitution provided that ' the validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure.' In May's 'Parliamentary Practice' 18th Edition, at page 197, we have the following passage dealing with the privileges of the Houses of Parliament:-
'In practice, however, there is a wide field of agreement on the nature and principles of privilege in spite of the apparent deadlock on the question of jurisdiction.
1. It seems to be recognised that, for the purpose of adjudicating on questions or privilege, neither house is by itself entitled to claim the supremacy over the ordinary courts of justice which was enjoyed by the undivided High Court of Parliament. The supremacy of Parliament consisting of the Sovereign and the two Houses, is a legislative supremacy which has nothing to do with the privilege jurisdiction of either House acting singly.
2. It is admitted by both Houses that, since neither House can be itself add to the law, neither House can by its own declaration create a new privilege. This implies that privilege is objective and its extent ascertainable, and reinforces the doctrine that it is known by the courts.
On the other hand, the courts admit:-
3. That the control of each House over its internal proceedings is absolute and cannot be interfered with by the courts.
4. That a committal for contempt by either House is in practice within its exclusive jurisdiction, since the facts constituting the alleged contempt need not be stated on the warrant of committal.'
It may be that for the purpose of determining a case falling within the scope of the latter part of Art. 194(3) as it stood prior to its amendment by the 42nd Amendment it was open to the court to issue a notice to the Legislature in order to produce the relevant records for the purpose of determining the issue involved, but it would not be open to issue a notice to the Presiding Officer of a House when the proceeding in which it is issued is itself outside the pale of determination by the courts. The records have to be called in this case according to the learned counsel for the petitioners for the purpose of examining the truth or otherwise of the words used by a member and whether any such words used by him had violated Art. 211 of the Constitution. When that enquiry, as mentioned earlier, falls outside the scope of proceedings in a Court, the records of the Legislature pertaining to it cannot be called. The Presiding Officer of a House is the supreme authority with regard to the regularity or otherwise of the proceedings. The question whether a member while exercising his freedom of speech has contravened Art. 211 or any other provision of the Constitution is a matter which falls within his exclusive jurisdiction as observed by the Supreme Court and that the courts have no say in the matter. This Court cannot go into that question and express any opinion on it. Hence, the question of sending for the records and quashing any such proceedings does not arise.
14. It is unfortunate that an occasion has arisen in this Court to hear a case of this nature. But at the same time the Court cannot take any action which interferes with the immunity which a member has been granted under Art. 194(2) of the Constitution merely because what he may have said is in violation of Art. 211 of the Constitution. Was it not Voltaire who said like this: 'I do not agree with you; but I will fight for upholding your right to disagree with me till the end of my life.' In the same spirit, this court which has a special obligation to uphold the Constitution and the laws, upholds Art. 194(2) of the Constitution and the immunity guaranteed to the members of the Legislature thereunder, leaving it to them to uphold Art. 211 of the Constitution in their deliberations. I am of the view that no action is called for in this case. The petition is dismissed.
15. Petition dismissed.