Can the Legislative Assembly order imprisonment of judges and advocates for contempt?

The supremacy of the constitution is fundamental to the existence of a federal State in order to prevent either the legislature of the federal unit or those of the member States from destroying or impairing that delicate balance of power which satisfies the particular requirements of States which are desirous of union, but not prepared to merge their individuality in a unity. This supremacy of the constitution is protected by the authority of an independent judicial body to act as the interpreter of a scheme of distribution of powers. Nor is any change possible in the constitution by the ordinary process of federal or State legislation.

Gajendragadkar, P.B.

THE BACKGROUND

Let’s paint a sordid picture of disrespect, contempt and conflicting egos.

One fine day in March’64, Keshav Singh from Gorakhpur, trying his hand at politics, hitherto under the radar and not talked about, printed, and published a scurrilous pamphlet titled ‘Shri Narsingh Pandey ke Kale Karnamon ka Bhanda-Fod’ alleging that Narsingh Pandey, Congress MLA, was corrupt. It was condemned by the Legislative Assembly as amounting to contempt of the House and breach of parliamentary privileges.

At the time, no one could have guessed that Keshav, the infinitesimal, aspiring politician seeking his 15 minutes of fame, could have embattled the two pillars of our democracy, viz. Legislature and Judiciary.

Keshav was reprimanded by the Assembly and on account of his subsequent misdemeanor by way of his disrespectful letter to the then Speaker, Madan Mohan calling their order ‘Nadirshahi’ (tyrannical), he was directed to be imprisoned for 7 days.

HABEAS CORPUS PETITION

Mr. B. Solomon, Keshav’s Advocate filed a Habeas Corpus Petition before the Allahabad High Court under Article 226, Constitution wherefore, the 2-Judge bench released Keshav on bail on his 6th day of imprisonment and issued notice to the Speaker. Pertinently, the said order was passed ex-parte due to non-availability of the Government Advocate.

CONTEMPT OF HOUSE

Instead of filing a Reply, the House passed a resolution definitively declaring that both the Judges G. D. Sahgal and N. U. Beg, Keshav Singh and his Advocate B. Solomon had committed contempt and, it was ordered that Keshav Singh should immediately be taken into custody for the remaining term of his imprisonment and both the Judges along with the Advocate should be brought in custody before the House.

CONTEMPT OF COURT

The Judges and the Advocate then rushed to the Allahabad High Court with writ petitions under Article 226 contending that in petitioning and making an order releasing Keshav Singh, the Advocate and Judges were exercising their duty, jurisdiction and authority. Their contention was that the resolution amounted to contempt of Court, and since it was wholly without jurisdiction and violative of Article 211, it should be set aside and by an interim order, its implementation should be stayed.

FULL BENCH OF ALLAHABAD HIGH COURT

A Full Bench of the Allahabad High Court of 28 Judges took up the matter on the same day it was filed, and upon the Senior Standing Counsel of the Speaker’s statement of having no instructions of raising any objections, passed an order to restrain the Speaker from issuing or executing any warrant against the Judges and the Advocate. Consequently, the Speaker issued a clarification resolution, withdrew the warrants and in the garb of affording an opportunity to be heard, directed the Advocate and the Judges to appear before the House and explain themselves.

PARLIAMENTARY PRIVILEGES

As defined by Subhash C. Kashyap in his book ‘Parliamentary Procedure, Law, Privileges, Practice and Precedents (2000)‘, parliamentary privileges are those powers, privileges, and immunities which are enjoyed by the Parliament or a Legislative Assembly (House) collectively as well as by its committees and members individually, without which they cannot discharge their functions effectively.

Additionally, a member of the Legislature was given the immunity from any proceedings in any Court in respect of his “speech or vote” in either Chamber of the Indian Legislature by virtue of Section 28(1), Government of India Act, 1935, presently retained in Articles 105(1) and 194(1).

In the absence of any special laws defining them, the powers, privileges and immunities of each House of Parliament and each State Legislature continue replicate those of the House of Commons of the Parliament of United Kingdom. Accordingly, the Parliament and all State Legislatures acting through the Speaker are vested with the power to punish for breach of privilege or contempt of the House, identical to that of the House of Commons of the UK Parliament, which is exercised by the Speaker.

RESTRAINT

Article 211 places restriction on the Parliament from discussing the High Court and Supreme Court Judges’ conduct. It stipulates 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. If a judge of the Supreme Court or High Court, in the process of discharging his duties, makes some observation or gives some suggestion as part of his duty, there should be no discussion regarding that in the legislature. Equally, as per Article 212, the conduct of legislators is not discussed in courts, the conduct of other judges is also not discussed in the courts.

PRESIDENTIAL REFERENCE

Eventually, vide a presidential reference under Article 143, the Supreme Court was requested to dispel controversy.

The following five questions were formulated by the President and answered by the Apex Court:

1.Whether the Judges were competent to entertain and deal with Keshav’s Petition challenging the legality of the House’s resolution?

It was answered in the affirmative and held that “If the right to move the courts in enforcement of the fundamental right is given precedence, the privilege which provides that if a House commits a person by a general warrant that committal would not be reviewed by courts of law, will lose all its effect and it would be as if the privilege had not been granted to a House by the second part of Article 194(3). This was not harmonious construction. That-being so, it would follow that when a House commits a person for contempt by a general warrant that person would have no right to approach the courts nor can the courts sit in judgment over such order of committal. However, till the Lucknow Bench was apprised of the fact that the detention complained of was under a general warrant, it had full competence to deal with the petition and make orders on it.”

2. Whether the Judges and the Advocate were in contempt of the House by petitioning and ordering Keshav’s release on bail?

It was answered in the negative, and held that “contempt of the Assembly is for the Assembly to determine and if the determination does not state the facts, courts of law cannot review the legality of it. For an act to amount to contempt, it has not only to be illegal but also willfully illegal. Now in the present case it does not appear that any of the persons mentioned had any knowledge that the imprisonment was under a general warrant. That being so, I have no material to say that the presentation of the petition was an illegal act much less a willfully illegal act. No contempt was, therefore, committed by the Hon’ble Judges or B. Solomon or Keshav Singh for the respective parts taken by them in connection with the petition.”

3. Whether the Full Bench of Allahabad High Court was competent to pass the interim order restraining the execution of warrants against the Judges and the Advocate?

It was answered in the negative, and held that “it would not be competent for the Assembly to find the Hon’ble Judges and B. Solomon to be guilty of contempt without giving them a hearing and they were not so guilty. That being so, it was not competent for the Assembly to direct their production in custody. As to the competence of the Assembly to ask for explanation from the two Judges and B. Solomon, it had. That is one of the privileges of the House. As it has power to commit for contempt, it must have power to ascertain facts concerning contempt.”

 4. Whether the Full Bench was competent to pass the interim order restraining the execution of warrants against the judges?

It was answered in the affirmative, as it follows from the answer to the first question.

5. Whether any Judge who entertains a petition challenging the order/resolution passed by the House acts in contempt warranting initiation of legislative proceedings against him?

It was observed that this answer could be given only in the context of the factual score of the matter at hand. In that, it was held that “a Judge has no jurisdiction to interfere with a commitment by a House under a general warrant. If he makes an order which interferes with such a commitment, his action would be without jurisdiction. It would then be a nullity. Any officer executing that order would be interfering with the committal by the House and such interference would be illegal because the order is without jurisdiction and hence a nullity. If the House proceeded against him in contempt, a Court of Law could not, in any event, have given him any relief based on that order. It may be that the Judge by making such an order would be committing contempt of the House for by it he would be interfering with the order of the House illegally and wholly without jurisdiction. If his order was legal, then, of course, he would not leave committed contempt and question of immunity for him would not arise. It was however conceded that Art. 211 did not give an enforceable right in view of Art. 194(2) but it was said to indicate the intention of the Constitution-makers that a Judge is to be immune from liability for contempt for the Assembly.”

While resolving the conflict inter se Articles 194 & 211, it was observed that when Article 194(3) says that the State Legislatures shall have certain privileges, it really incorporates those privileges in itself. Therefore, the proper reading of Article 194(3) is that it provides that the State Legislatures have, amongst other privileges, the privilege to prohibit publication of its proceedings. It is only then that the conflict between Articles 194(3) and 19(1)(a) can be seen. When there is a conflict between a privilege conferred on a House by the second part of Article 194(3) and a fundamental right, that conflict has to be resolved by harmonizing the two provisions. It would be wrong to say that the fundamental right must have precedence over the privilege simply because it is a fundamental right or for any other reason. In the present case the conflict is between the privilege of the House to commit a person for contempt without that committal being liable to be examined by a court of law and the personal liberty of a citizen guaranteed by Article 21 and the right to move the courts in enforcement of that right under Article 32 or Article 226. If the right to move the courts in enforcement of the fundamental right is given precedence, the privilege which provides that if a House commits a person by a general warrant that committal would not be reviewed by courts of law, will lose all its effect and it would be as if that privilege had not been granted to a House by the second part of Article 194(3). Article 211 is not enforceable while Article 194 is. Even so, since the Judges and the Advocate were unaware at the time that the Assembly had issued a general warrant which could not have been reviewed by a court of law, it was not a willfully illegal act and they could not be held liable for contempt for simply fulfilling their duty in their official capacity.

Keshav, on the other hand, had to go back to prison for another day.

CONCLUDING REMARKS

Before parting, Supreme Court observed that “the result of the order of the Hon’ble Judges was not to interfere with a perfectly legitimate action of the Assembly in a case where interference was not justifiable and was certainly avoidable. On the other hand, the Assembly could have also avoided the crisis by practicing restraint and not starting proceedings against the Judges at once. It might have kept in mind that the Judges had difficult duties to perform, that often they had to act on imperfect materials, and errors were, therefore, possible. I sincerely hope that what has happened will never happen again and our Constitution will be worked by the different organs of the State amicably, wisely, courageously and in the spirit in which the makers of the Constitution expected them to act.“

Read the full Judgment here.

Sanya Arora

Yet another Lawyer who happens to indulge in the gratification of reading and writing the Language of Law.

Yet another Lawyer who is trying to be better than yesterday.