This article has been written by Soumyadutta Shyam. This article discusses in detail the facts of the case, issues raised in the case, arguments of the parties, laws involved in the case, relevant judgements referred to in the case, judgement of the case and analysis of the case.

The legislature has a major role in a democracy. The legislature enacts laws, manages the nation’s finances; other than that it is the legislature where issues of national importance are discussed and debated. The legislature is even more significant in a parliamentary form of government, as the party with the majority forms the government.

In view of the central role played by the Parliament, the members of the Parliament as well as the Parliament itself has been bestowed with certain privileges so that it can discharge its functions effectively without any interference.

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In Keshav Singh v. Speaker, Legislative Assembly & ors (1965), the Apex Court examined the extent and scope of Article 194 and its relation to Articles 143 and 226 of the Indian Constitution. This is an important judgement, as it discusses in detail the “privileges of the legislature” conferred by the Constitution on the legislature and its interplay with other provisions of the Constitution.

Case No.- Special Reference No. 1 of 1964

Date of Judgement- 30.09.1964

Bench- Chief Justice P.B Gajendragadkar, Justice A.K Sarkar, Justice K. Subbarao, Justice K.N Wanchoo, Justice M. Hidayatullah, Justice J.C Shah and Justice N. Rajagopala Ayyangar (Seven Judges Bench)

Citation- AIR 1965 SC 745; 1965 SCR (1) 413

Laws involved- Article 143, Article 194, Article 211 and Article 226 of the Constitution.

A person named Keshav Singh, hailing from Gorakhpur who was affiliated with the Socialist Party distributed a pamphlet against Congress MLA, Narsingh Narain Pandey. The pamphlet contained allegations of corruption against Narsingh Narain. On 14th March, 1964, the Speaker of the Legislative Assembly of Uttar Pradesh issued orders of reprimand against Keshav Singh for contempt of the House as well as for the breach of privileges of Narsingh Narain Pandey.

Subsequently, the Assembly made the decision and the Speaker instructed that Keshav Singh should be sentenced to prison. The reason for this decision was, he was deemed liable of contempt of the House for the second time when he was called to receive the reprimand, for his insubordinate behaviour as well as addressing a contemptuous letter to the Speaker of the Assembly. A warrant was issued ordering that Keshav Singh should be imprisoned in District Jail, Lucknow for a term of seven days. Thus, he was subsequently detained in furtherance of the order.

On 19th March, 1964, Advocate B. Solomon submitted a petition to the High Court for Keshav Singh under Article 226. In the petition, the Speaker of the Legislative Assembly, the Chief Minister of Uttar Pradesh and the Superintendent of the District Jail, Lucknow were named as respondents. The petitioner asserted that the imprisonment was illegal. The High Court instructed that the applicant should be set free on bail. The Court also instructed that the applicant should attend all hearings of the matter. Therefore, the petition was allowed and notice was directed to be served to the respondents.

However, rather than obeying the order of the High Court, the House decided to initiate measures against the two Judges who made the order in Keshav Singh’s matter, Keshav Singh and his advocate on 21st March, 1964. The House passed a resolution stating that the above mentioned persons had committed contempt of the House. Afterwards, separate petitions were filed before the Allahabad High Court under Article 226. It was claimed that the resolution was blatantly unconstitutional and infringed upon the provisions of Article 211. It was asserted in the petitions that the application presented by Keshav Singh was valid, and the Judges passed the order releasing Keshav Singh under power vested upon them by  Article 226. A full Judge Bench of the High Court also made interim orders restricting the Speaker of the Legislative Assembly and also the rest of the respondents from imposing the order of the Legislative Assembly. 

In view of the developments in this matter, the President chose to exercise his power as per Article 143(1) and refer this matter to the Apex Court. After considering the facts of this dispute between the legislature and the Judiciary, the President framed five questions for the opinion of the Supreme Court. The facts and circumstances showed that there was a serious dispute between the High Court and the State Legislature regarding the exercise of the powers, privileges and immunities by the State Legislature. 

The issues presented before the Supreme Court in this reference were as follows:-

  • Whether it was appropriate for the High Court to address the petition of Keshav Singh objecting the validity of the punishment of detention given to him by the Legislative Assembly of Uttar Pradesh for its contempt, as also for breach of its privileges and to make orders releasing Keshav Singh on bail?
  • Whether it was appropriate for the Legislative Assembly of Uttar Pradesh to order the appearance of two Judges of the High Court and Advocate B. Solomon?
  • Whether it was appropriate for the full bench of the High Court to make interim orders restricting the Speaker of the Legislative Assembly as well as other respondents from enforcing the directive of the Legislative Assembly?
  • Whether the judges of the High Court handling a petition challenging the direction of a Legislature which laid down punishment on the petitioner for breaching its privileges or immunities, acted in contempt of the above stated legislature?
  • Does the Legislature have the authority to initiate action against a Judge in the implementation of its powers, privileges and immunities?

Contentions of the Petitioner

In the petition submitted by Advocate B. Solomon for Keshav Singh, it was contended that his imprisonment was unlawful for many reasons. Firstly, Keshav was directed to be imprisoned after he was reprimanded and thus, the order of imprisonment was unlawful. Secondly, it was asserted that Keshav was not afforded a chance to defend himself and this was opposed to the rules of natural justice.

Eminent Jurist M.C Setalvad representing the Judges asserted that there was no need for including the dichotomy which prevailed between the Judiciary and the House of Commons in England in discourse about the Indian Constitution. He argued that there cannot be any uncertainty that the issue of interpreting Article 194(3) comes under the exclusive domain of the Supreme Court and the High Courts. The interpretation that the Court would put on the appropriate terms utilised in the latter part of the provision would conclusively decide the scope, extensiveness, as well as the nature of the privileges of the legislature. It was also said that Article 194(3) must not be read separately, instead it should be interpreted in its context and in consonance with other Constitutional provisions like Articles 32, 211 and 226. The substantial part of Article 194(3) hence read, it should be evident that there was no need of bringing any conflict or dichotomy between the authority of the High Court and the Legislative Assembly in this case. It was further said that it was not correct for the Legislative Assembly to adopt an approach which was prevalent in the House of Commons in England in the 18th-19th centuries. Mr. Setalvad also said that this issue should be handled based on the common agreement that has developed between the Judiciary and the Legislature.

Contentions of the Respondents

One of the contentions presented in front of the Supreme Court was that the reference as per Article 143(1) was invalid since any of the questions presented before the Court were not connected with any of the subjects in List I or List III of Seventh Schedule of the Constitution. Therefore, it was unwarranted for the President to refer these questions to the Court.

Mr. H.M Seervai stated that it is the privilege of the House to interpret the appropriate provisions of Article 194(3), as also to decide by itself what its powers and privileges are. It was also argued that even in England this dichotomy between the two contending jurisdictions asserted by the judicial bodies and the Parliament has been there since the beginning and exists even in modern day. The conflict between the Judiciary and the House of Commons has taken very serious character in some instances. There has been complete contradiction between the approaches adopted by the two bodies in some cases.

Mr. Seervai said that the Legislative Assembly took a similar stance which the House of Commons took in issues of comparable nature. He said that the Allahabad High Court had no jurisdiction to address the issues put forward by Keshav Singh. It was said that the submission of a petition by Keshav Singh through his advocate constituted contempt of the Legislative Assembly. At the time the Judges dealt with the petition and made an order on the same, they acted in contempt of the Legislative Assembly. In this case, the resolution ratified by the House against the two Judges and Mr. Solomon was in the character of a general resolution. Although warrants against the Judges had been revoked, it was evident that the resolution of the House and the warrants that were originally issued in furtherance of the said resolution were general resolution and general warrants. Therefore, it was not appropriate for the Court to examine the causes for which the warrants were promulgated. The House could not be asked to explain the causes for issuance of such warrants. This itself was an intrinsic component of the powers and privileges of the Assembly as per Article 194(3). 

Article 143 : Power of the president to consult the Supreme Court

Article 143(1) sets out that if at any time it appears to the President that :-

(a) a question of law or fact has arisen or may arise in future, or

(b) the question is of such character and public significance that it is suitable to seek the opinion of the Supreme Court on it, he may put forward the question for the advisory opinion of the Court and the Court may, subsequent to such hearing as it views appropriate, report to the President its opinion on the matter.

Under clause (2), if the President refers to the Supreme Court those matters that are excluded from its jurisdiction under the proviso to Article 131, the Court will offer its opinion on the subject.

The use of the word “may” in clause (1) of the Article shows that the Supreme Court is not obligated to provide its advice for a reference made to it by the President.

In this case, the President put forward five questions for the opinion of the Supreme Court on 26th March, 1964. The order of reference indicated that it appeared to the President that the events in this instance had given rise to a major dispute between the High Court and the State Legislature which involved important questions of law regarding the jurisdiction of the High Court and the powers, privileges and immunities of the State Legislature and its members.

As regards to this case, the Supreme Court opined that the requisite of this provision is that the President must be convinced that a question of law has arisen or may arise in future. Prima facie the satisfaction of the President should justify the reference. The scope of this provision is wide enough that the President can put any question before the Supreme Court for its advice.

Article 194 : Powers, Privileges etc., of the House of Legislatures and of the members and committees thereof

Article 194 deals with certain powers and privileges which have been vested on the State Legislature. Such powers and privileges are – freedom of speech, right of publication of its proceedings, freedom from arrest, right to exclude strangers from its proceedings and hold secret sessions, right to prohibit publication of its reports and proceedings, right to regulate internal proceedings, right to punish members or outsiders for contempt.

Historically, privileges of the legislature evolved in England as a way for legislators to avoid arrest or prosecution for things said in the House. This power extends to the legislature’s authority over publishing its proceedings.

The State Legislatures also have the authority to penalise its members and outsiders for its contempt. The State Legislature has the authority to promulgate a general warrant to arrest a person found liable for contempt of the House.

The Supreme Court in this case ruled that the two Judges of the Allahabad High Court were not liable for contempt of the Assembly for passing an interim bail order. As per Article 226, a court has the power to direct the release of a person from unlawful detention. It was observed that courts in India have the prerogative to look into the legality of the imprisonment of a person deemed culpable by the Assembly in pursuance of a general warrant. As far as the assertion of the Assembly that the courts in England do not have the authority to determine the legality of a general warrant promulgated by the House of Commons, it was replied that such prerogative is not vested upon the Indian legislature. In India, legislatures have not at any occasion performed any judicial function and their historical or Constitutional framework does not permit them to be considered as Courts of Record. Therefore, the very basis on which the English Courts treat a general warrant issued by the House of Commons as incontestable, is absent in India.

Article 211 : Restriction on discussion in the Legislature

Article 211 forbids any discourse or debate relating to the conduct of any Judge of the Supreme Court or the High Courts in relation to their duties in the State Legislature. 

In this case, the Allahabad High Court stated that the resolution ratified by the Uttar Pradesh Legislative Assembly against the two Judges of the High Court was unconstitutional and in violation of Article 211. 

Article 226 : Power of High Courts to issue certain writs

Article 226 lays down that notwithstanding anything in Article 32, all High Courts will have the power, within the territorial limits of which they have jurisdiction to issue to any person or authority including in suitable cases, any Government, in those territories, directions, orders of writs, including writs such as habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them for the implementation of fundamental rights enshrined in Part III or for any other cause.

In this instance, Advocate B. Solomon filed a writ of Habeas Corpus as per Article 226 for Keshav Singh contending that detention imposed by the Legislative Assembly was illegal. Subsequently, the Legislative Assembly ratified a resolution against the two Judges of the High Court, Keshav Singh and his counsel B. Solomon. They immediately filed separate petitions in front of the Allahabad High Court. On 25th March, 1964, Advocate B. Solomon prayed for a writ of Mandamus and requested for a suitable order. The petition was heard by the Full Bench of the High Court which passed an interim order directing the stay of implementation of the resolution of the Legislative Assembly.

The Supreme Court said that the two Judges Bench of the High Court comprising Justice N.U Beg and Justice G.D Sahgal had the authority to address the writ petition contending the validity of the sentence enforced by the Legislative Assembly. It was further observed that under Article 226, a Court has the jurisdiction to order the release of a person sentenced by the Legislative Assembly under a general or unspeaking warrant. 

In Pandit M.S.M Sharma v. Shri Sri Krishna Sinha and Ors (1958), the question before the Supreme Court was whether the privilege of the House under Article 194(3) overrule the fundamental right enshrined in Article 19(1)(a) and can the Bihar Legislative Assembly exercise the same authority as the House of Commons in United Kingdom. The Supreme Court dismissed the petition, as a foreigner managing a newspaper is not permitted to claim the freedom of speech and expression. The Court further ruled that the Bihar Legislative Assembly has identical powers and privileges as held by the House of Commons at the commencement of the Constitution.

In Re Delhi Laws Act, 1912 (1951), a reference was put forward by the President under Article 143 asking a few questions about the delegation of legislative powers to the executive for its opinion. It was laid down by the Supreme Court that the Indian Parliament is a creation of the Constitution of India and its powers, privileges and duties arise out of the Constitution. The Parliament cannot relinquish its powers by creating a parallel authority. Only ancillary powers can be delegated. There are restrictions on the delegation of power. Legislature is not permitted to delegate its essential functions.

In Re Kerala Education Bill, 1957 (1958), the President put forward some questions of law to the Supreme Court in accordance with Article 143(1) regarding the validity of the Kerala Education Bill, 1957. The Bill was ratified by the Kerala Legislative Assembly in 1957 and was held back by the Governor for review by the President. The issue before the Supreme Court was were the provisions of the Bill in violation of the fundamental rights of minorities provided under Article 30(1) and were the provisions of the Bill in contravention of the rights enshrined under the Constitution. The Supreme Court ruled that other than clauses (14) and (15), the rest of the provisions in the Bill did not contravene Article 30(1). It was further said that the legislation enacted by the State of Kerala must not supersede the fundamental rights set out in the Constitution.

After hearing the contentions and considering the important points laid down before it, the Supreme Court answered all the questions in this reference as follows:-

  • The Lucknow Bench of the High Court of Uttar Pradesh, comprising of Justices N.U Beg and G.D Sahgal had the power to address the petition of Keshav Singh objecting the validity of the punishment of detention laid down on him by the Legislative Assembly of Uttar Pradesh for its contempt and for the breach of its privileges and to make orders releasing Keshav Singh on bail until the disposal of the petition.
  • Keshav Singh by submitting the petition through his advocate and the Judges by addressing the petition and directing the release of Keshav Singh on bail had not acted in contempt of the Legislative Assembly of Uttar Pradesh.
  • It was inappropriate for the Legislative Assembly of Uttar Pradesh to order the appearance of the two judges of the High Court along with Advocate B. Solomon in front of it and to summon them for clarification of its contempt. 
  • It was valid for the full bench of the High Court of Uttar Pradesh to issue interim orders restricting the Speaker of the Legislative Assembly of Uttar Pradesh and the rest of the respondents from enforcing the directions of the Assembly.

Rationale behind the judgement

The Supreme Court said that powers vested on the President under Article 143(1) is broad enough that he can put any question to the Apex Court for its opinion. The prerequisite of this provision is that the President must be convinced that a question of law or a fact has arisen or will possibly arise. He must also be sure that the issue is of such a character and public significance that it is suitable to seek the advice of the Supreme Court. This case posed a difficult issue and thus the President took the decision to seek reference from the Supreme Court.

While discussing the scope of Article 194, the Court opined that though a legislator exercises his right of freedom of speech in infringement of, for instance, Article 21, he will not be accountable before a court. The framers of the Constitution gave so much significance to the necessity of absolute freedom in discussions in the legislature that they considered it was important to bestow full immunity on the legislators from any action in any court in regard to their speeches.

Regarding the judgement of Pandit M.S.M Sharma v. Shri Sri Krishna Sinha (1958) as mentioned above, the Supreme Court observed that the arguments advanced by the petitioner did not raise a general issue as to the relevance and applicability of all the fundamental rights guaranteed by Part III at all. The infringement of only two Articles was pleaded, they were Articles 19(1)(a) and 21. The case did not lay down a general proposition that whenever there is a conflict between the provisions of Article 194(3) and any of the provisions of the fundamental rights guaranteed by Part III, the latter must yield to the former.

The Supreme Court further elucidated that the paramountcy of the Constitution is crucial to the continuance of a federal State to restrain either the legislature of a federal unit or of the constituent States from undermining the fine balance of power upon which a Union of States is founded. This paramountcy of the Constitution is safeguarded by the supremacy of an independent Judiciary.

The legislatures in India have been vested with plenary powers, however, such rights are guided by the fundamental terms of the written Constitution. It may be implemented within the limits of the legislative domains assigned to their jurisdiction by the three lists provided in the Seventh Schedule; although the legislature must not exceed that limit. The power of the legislatures along with the Parliament is ruled by the provisions in Part III of the Constitution. If the Legislatures act in excess of the legislative subjects given to them and infringe on the fundamental rights of the citizens, their legislative measures ought to be set aside by the courts in India.

In a democratic nation which is governed by the Constitution, it is the Constitution which is supreme. Legislators, Ministers and Judges all pledge their allegiance to the Constitution. Thus, there is no uncertainty that the supremacy that can be asserted by the Parliament in England, cannot be asserted by any legislative body in India.

The Constitution endowed the Judiciary with the duty of interpreting the Constitutional provisions and safeguarding the fundamental rights of the citizens. Adjudication of a dispute is entrusted with the Judiciary of the nation and the power of interpreting of Article 194(3) is also vested with the Judiciary.

In this instance, the Apex Court had to determine and resolve the dispute between the Allahabad High Court and the Legislative Assembly of Uttar Pradesh. Resolving the dispute between the two main branches of the Government was important for smooth functioning of the State. After assessing the serious and sensitive nature of the issue, the President forwarded the issue to the Apex Court for its advice on the issue. In the order of reference, it was stated that the events caused a dispute of critical nature between the High Court and the State Legislature. 

The issue began when a person was ordered to be imprisoned for contempt of the State Legislature. When the two Judges of the High Court dealt with the petition of Habeas Corpus in accordance with Article 226, the matter further escalated. The House even passed a resolution against the two Judges of the High Court. Thereafter, two separate petitions were filed before the High Court. The centre of this dispute was whether the High Court was justified in determining the legality of the detention passed by the Legislative Assembly.

This case also led to the comparison between the authority and privileges of the House of Commons in the United Kingdom and the Parliament as well as the State Legislatures in India. The authority and privileges of the House of Commons evolved over a period of time as a result of customs and conventions, which were finally codified by the enactment of the Parliamentary Privilege Act, 1770. The House of Commons has the authority to penalise a person either a stranger or its own member for its “contempt” or “breach of privileges.” In this matter, the House is the exclusive authority to decide on whether its privilege has been breached or not. The House can promulgate a general or unspeaking warrant to arrest a person found culpable of contempt of the House. Any court cannot examine its legality. The Courts in the U.K generally avoid interfering in the powers of the House. In Bradlaugh v. Gossett (1824), the plaintiff was restrained from entering the House at the directions of the House of Commons. The plaintiff pleaded to the Court to render the directive of the House as unlawful. It was ruled that the House of Commons was not answerable to the regulation of the Court, as far as internal proceedings were concerned. The House of Commons is the exclusive judge of the legality of its internal affairs. The Courts have no power to intervene in its right to regulate its own affairs.

The Legislature in India obtains its power and authority from the Constitution. The Constitution expressly sets out two privileges i.e, the freedom of speech in the legislature and the right of publication of its own proceedings. Before the 44th Amendment, in relation to the other privileges, Article 194(3) laid down that the powers, privileges and immunities until specified by the House of the State Legislature shall be those of the House of Commons. Subsequent to the 44th Amendment, Section 194(3) now sets out that the powers, privileges and immunities of the Legislature of a state, and its members and committees of such legislature will be that as shall be specified by the legislature by law, and till then it will be such as existed before the 44th Amendment. It is to be noted that after the 44th Amendment, any mention of the House of Commons has been erased.

The Supreme Court in this case ruled that courts in India have the authority to determine the legality of imprisonment of a person penalised by the Legislative Assembly under a general warrant. This marks a clear departure from the custom of the House of Commons. While interpreting Article 194(3), the rule of harmonious construction should be adopted.

This case is an example of the struggle for power that has taken place between the legislature and the judiciary. There were several missteps which escalated the conflict in this matter. The choice of the Legislative Assembly to pass a resolution against the two Judges of the High Court undermined the authority of the Judiciary, which has been entrusted with safeguarding and interpreting the Constitution.

The powers of the legislatures in India should not be equated with the powers held by the House of Commons in the U.K. Though the powers are similar in nature, the legislature in India is subject to Constitutional provisions. The Constitutional supremacy in India must be acknowledged. All the organs of the government should function in conformation to the Constitution.

The power of the legislature to punish for its contempt must be exercised carefully. This power to punish for his contempt must be exercised in line with the other provisions of the Constitution. Article 32 and 226 of the Constitution confers wide powers upon the Supreme Court and the High Courts respectively, to issue a writ of habeas corpus against any authority which according to Article 12, includes even the legislature. Thus, the Supreme Courts and the High Courts can exercise their power even against the legislature. The legislature is sovereign only to the extent that the Constitution grants it and, therefore, it is open to the Judiciary to examine the legality of the use of legislative power.

How is the House of Commons different from the legislature in India? 

The House of Commons is the lower house of the Parliament in the United Kingdom. The House of Commons can punish a person for its contempt or breach of its privileges. It is the sole Judge in this matter. Any Court cannot examine the legality of its decisions.

The Legislature in India is subject to the provisions of the Constitution. The Judiciary in India has the right to examine the legality of a legislative action.

What is the right to freedom of speech given to the legislature by the Constitution? 

Article 105(1) and Article 194(1) bestows freedom of speech upon the members of the Parliament and the State Legislatures respectively. These provisions give immunity to the members of the House in respect of anything said within the House. They shall not be liable before any court of law in relation to anything said inside the House.

What is the right to publication of its own proceedings given to the legislature by the Constitution?

Article 105(2) and Article 194(2) provide that the members of the Parliament and the State Legislatures shall not be liable to any proceeding in any court in respect of anything said or any vote given by them in Parliament and the State legislatures or any committee thereof, and they shall not be liable in respect of the publication under the authority of the Parliament in any report, paper, votes or proceedings. 



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