State Of Kerala vs R. Sudarsan Babu And Ors. on 5 August, 1983

JUDGMENT

Subramonian Poti, C.J.

1. In view of the importance of the question arising for decision in this appeal a Division Bench of this Court before which the Writ Appeal came up for hearing earlier referred the case to a Full Bench and that is how the matter has come up before us now.

2. The Writ Appeal is by the State of Kerala against an order of a learned single Judge of this Court finding no ground for review of an order directing issue of notice to the respondents in the Original Petition including respondents 2 and 3, the Speaker, Kerala Legislative Assembly and the Secretary, Kerala Legislative Assembly respectively. When

the Original Petition came up for admission before the learned single Judge notice was directed to be issued to the respondents. It was then that the 1st respondent, the State, appeared in the case and filed a statement. The State made no motion as such. The learned Advocate General appearing for the State submitted that the Court must cancel its order directing issue of notice to the Speaker of the Kerala Legislative Assembly as well as its Secretary. The learned Judge by the order under the appeal held that there are questions which called for examination in the original petition and such examination cannot be at the admission stage but can only be after giving an opportunity to the respondents to have their say. The learned Judge particularly found that on the averments made and the grounds raised in the writ petition he was satisfied that the petitioner’s case required further examination. As a consequence of the order so passed by the learned Judge the original order directing issue of notice to respondents would operate. It is this that is taken by the State in appeal.

3. We must mention here that the petitioners in the original petition alone have been made respondents in the appeal. Neither the Speaker of the Kerala Legislative Assembly nor the Secretary of the Assembly is a party to the appeal so much so it is agreed on all sides that whatever decision is reached here will not be binding on the Speaker of the Legislative Assembly or the Secretary of the Assembly though a decision on the question in issue would concern them and them only and not the State. The State, the Advocate General contends, is in the position of an informant bringing certain facts to the notice of the Court which facts, according to the Advocate General, must persuade the Court not to issue notice to the Speaker, We are mentioning this here particularly because there is a preliminary objection raised by the respondents in the appeal that in the circumstances the appeal itself is not maintainable in law.

4. The 1st petitioner, R. Sudersan Babu, is the Staff Correspondent of the Malayalam Daily ‘Deshabhimani’. The 2nd petitioner is the Kerala Union of Working Journlists Trivandrum represented by its General Secretary. The 3rd petitioner is the Trivandrum Press

Club in turn represented by its Secretary. The Kerala Legislative Assembly Session was summoned by the Governor of Kerala to meet on 25th Feb., 1983. At the commencement of the session the Governor was to address. Passes to the members of the press to enter and occupy the press gallery during the course of the proceedings in the House are usually issued to accredited correspondents of newspapers. The accredition cards are issued under the authority of the 1st respondent, the State. It is the petitioners’ case that the long standing practice, which has become more or less a rule, is to issue the necessary passes to the accredited press correspondents the day previous to the date of meeting of the Assembly through the Public Relations Department. Such passes were to be sent by the Secretary of the Legislative Assembly the 3rd respondent. It is said that at about the time of the proposed commencement of the Session of the Kerala Legislative Assembly on 25-2-1983 there were 75 accredited press correspondents including the 1st petitioner. The 1st petitioner was an accredited press correspondent for the last 5 years, he was attending the Assembly proceedings on the basis of passes issued to him and he was representing ‘Deshabhimani’ for the last three years. As usual when the petitioner sought to get the accredited representative’s pass for attending the Session commencing on 25-2-1983 the petitioner was told that there was a direction that no pass need be issued to him. All the other 74 accredited press correspondents obtained their passes. The reason which prompted such an attitude was not disclosed nor was any opportunity to show cause why the 1st petitioner should be prohibited from entering the press gallery given to him. The 2nd petitioner, the Kerala Union of Working Journalists and the 3rd petitioner, the Trivandrum Press Club, were said to have been stunned by this action which was understood to be that of the 2nd respondent, the Speaker and consequently the press reporters are said to have unanimously decided not to report the proceedings of the Assembly including the address by the Governor of Kerala on 25-2-1983.

5, The conduct of the 1st respondent as well as respondents 2 and 3 in denying a pass to the 1st petitioner is thus the subject of challenge in the original petition. The press, it is said, is an important institution for the functioning of a democracy and it is for the press to make available to the public substantially true reports of the proceedings of the Assembly in order to affirm the confidence of the public in the functioning of the Legislature in a Parliamentary democracy. It is therefore said that the press correspondents must be given a right to attend from the press gallery without regard to their political, social or economic leanings or that of the newspapers represented by them and any act of discrimination favouring one section of the correspondents alone to the exclusion of another section for reasons which are not relevant, such as political bias of the newspapers represented by them, will be destructive of the democratic concept envisaged in the Constitution. Reference is made in the petition to Article 361-A which, it is said, read along with the proviso thereto recognises in spirit though not in letter the right of a representative of a newspaper to be present during the Sessions of the Assembly in order to report faithfully in the newspaper represented by him the proceedings of the Assembly. The denial of a pass to the press gallery would affect the right under Article 361-A. It is further contended that the non-issue of a pass to the 1st petitioner through the Public Relations Department as usual is not relatable to any of the provisions of the Constitution dealing with the powers of the Speaker of a Legislative Assembly for regulating the procedure or the conduct of business or for maintaining order in the Legislature falling within the ambit of Article 212 of the Constitution. The fact that the petitioner has been singled out in the refusal of pass to the press gallery is said to amount to discriminatory treatment and therefore such denial is said to be violative of Articles 14 and 15 of the Constitution. Petitioners 2 and 3 are said to be aggrieved because of the discrimination shown to the 1st petitioner as a press correspondent. It is therefore contended by the petitioners that the denial of pass to the 1st petitioner to the press gallery of the Assembly is violative of the 1st petitioner’s fundamental right, is opposed to the principles of natural justice and is void. The prayer therefore is to compel the respondents to issue a pass to the 1st petitioner as an accredited representative of a newspaper. In support of the prayer in the petition it

is urged in the grounds raised in the petition that if an uncontrolled and unguided power is available to respondents 2 and 3 to exclude any press representative of their choice from the press gallery such power has the potential of being used with discrimination. Logically a group of press representatives can be excluded in order to prevent publication of true versions of the proceedings in the Assembly. It is indicated that this may result in the views expressed by the opposition members in the Assembly being blocked out. This it is said, will be antithesis of the democratic functioning of the State. It is further said that any rule relating to entry into the Assembly Chambers other than the portions reserved for the members will fall within the ambit of Article 208 of the Constitution and therefore Rule 309 of the Rules of Procedure and Conduct of Business in Kerala Legislative Assembly must be a rule stemming from the power conferred by Article 208 of the Constitution. It is said that the rules will be subject to the fundamental rights under Part III of the Constitution.

6. The State has not filed an affidavit. In fact the stand taken by the State is not that it is answering any case set up against the State in the original petition, but is only apprising this Court of the correct Constitutional provisions regarding the issuance of notice to the Speaker and Secretary of the Kerala Legislative Assembly so that the names of respondents 2 and 3 may be removed from the party array in the original petition. In the statement filed by the Advocate General he states that the validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any irregularity of procedure and that no officer or member of the Legislature of a State in whom powers are vested by or under the Constitution for regulating the procedure or the conduct of business or for maintaining order in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers. This of course is the content of Article 212 of the Constitution. Reference is then made to Article 208 of the Constitution and to Rule 309 of the Rules of Procedure and Conduct of Business in the Kerala Legislative Assemby framed thereunder. After referring to these the Advocate General points out in the statement that the

jurisdiction of the Legislative House is exclusive and absolute regarding its own internal proceedings and the power of the Speaker to regulate the procedure and the conduct of the business in the House and in maintaining order in it is immune from the jurisdiction of this Court by virtue of Clause (2) of Article 212. The Secretary of the Legislature is said to be an officer of the Legislature in whom powers are said to be vested as envisaged in Article 212 (2) of the Constitution.

7. As already noticed, the order passed by our learned brother Justice M. P. Menon which is under challenge in this appeal is not an order passed on any petition. The learned Judge had directed the issue of notice on the original petition at the admission stage and before the notice was actually issued from the court the Advocate General filed a statement and attempted to draw the attention of the court to the propriety of non-issue of notice by the Court. The Court heard him and found no reason to hold up the issue of notice. Learned counsel for the respondents Shri Easwara Iyer submits that this order is net an appealable order since it decides we issue between the parties and for that reason is not an order contemplated by Section 5 (1) of the High Court Act. It is also the counsel’s case that the appeal will not lie for another reason too, namely that the State Government is not aggrieved by the order. In fact the stand taken by the Advocate General is that the State Government is only an informant. What is attempted through filing the statement is only to convey information and the real parties who will be concerned by this decision, namely the Speaker and the Secretary of the Kerala Legislative Assembly, according to the Advocate General, will in no way be bound by the decision here as they are not parties to the appeal. Shri Easwara Iyer contended that if so the court need not embark upon a futile exercise. In short the plea is that the appeal must be by an aggrieved party and the appellant is not therefore one competent to file the appeal.

8. According to the learned Advocate
General if the court goes into the case on the merits it could be found that the conduct impugned in the original petition falls within the scope of immunity under Article 212 (2) of the Constitution and for that reason such conduct is insulated from judicial review, He submits that the court, should not therefore issue notice to respondents 2 and 3 in the original petition or call upon them to answer any case.

9. Our learned brother Justice M. P. Menon has taken the view that whether a plea of immunity is available depends upon the facts and circumstances of the case, the examination of that question should appropriately be made with notice to those who will be affected, namely the Speaker and the Secretary and if so there is no reason to alter the earlier order passed by the court directing issue of notice to them.

10. Both sides have elaborately addressed us on the constitutional position and this has considerably helped us in dealing with the question of contours of jurisdiction of the Legislature and the Judiciary. This is necessary not with a view to finally decide the case, but with a view to determine whether under any circumstance interference by a Court in regard to the conduct of the Speaker or the Secretary of the Legislative Assembly would be justified. If no notice could be issued to the Speaker by the High Court in a petition under Article 226 of the Constitution under any circumstances then of course there is no need to examine the facts of the case to determine whether issue of notice would be called for. If on the other hand interference would be justified under certain circumstances or on certain grounds then the question would be whether those circumstances or grounds exist in a given case. Once such an examination is called for in this case there will be no scope for interference in appeal since the learned single Judge has only directed issue of notice for the purpose of the very examination.

11. Since the maintainability of the appeal has been raised as a preliminary issue by the learned counsel for the respondents we will first deal with that contention.

Section 5 of the Kerala High Court Act, 1958 provides for appeal from the judgment or order of single Judge. Section 5 reads thus :

“5. Appeal from judgment or order of single Judge: An appeal shall lie to a Bench of two Judges from–

   

(i) a judgment or order of a single Judge in the exercise of original jurisdiction; or
 

. (ii)  a judgment of a single Judge    in the exercise of appellate jurisdiction in

respect of a decree or order made in the exercise of original jurisdiction by a subordinate court; or
 

(iii) a judgment of a single Judge in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a subordinate court, if the Judge who passed such judgment certifies that the case is a fit one for appeal".    
 

While Sub-sections (ii) and (iii) deal with a judgment of a single Judge in the exercise of First Appellate and Second Appellate jurisdiction respectively, Sub-section (i) deals with a case of an appeal from a judgment or order of a single Judge made in original jurisdiction. The proceedings under Article 226 are proceedings in original jurisdiction. Thus an appeal will lie against every judgment or order of the single Judge in such proceedings to a Division Bench. If Section 5 (1) is to be understood as enabling a party to file an appeal against any order interlocutory or otherwise even an order granting an adjournment will be appealable to a Bench of two Judges That is not, according to us, the scope of Section 5 (1). The term ‘order’ is found in association with the term ‘judgment’ and therefore necessarily it takes its colour from such association. Section 5 (1) applies not only to writ proceedings, but to all proceedings of original jurisdiction. In the exercise of original jurisdiction the learned Judge may dispose of a proceeding by a judgment in certain cases and by an order in other cases. In either of such cases since the disposal is an adjudication there is finality attached to it and the judgment or order operates to decide the issue between the parties. A judgment may be preliminary or final. It may deal with and dispose of the main question in controversy. This was the case in State of Kerala v. Annam (1968 Ker LT 390): (AIR 1969 Ker 38), a decision of a Full Bench of this Court. Certain orders under the Essential Commodities Act were under challenge before a learned single Judge and the challenge succeeded to some extent, the court holding that some of the provisions had to be struck down a batch of petitions had to be disposed of in accordance with such decision and that had to be done by the Court on further examination of the individual facts of each case. The decision of the court was styled by the court itself as judgment. When the

question of maintainability was raised in appeal filed against such judgment by the State the court noticed that there was an adjudication on the main question raised in the Original Petitions and even the learned single Judge himself had styled the decision as a judgment, So an appeal was found to lie. A preliminary judgment is different from findings on the issues. In a short but precise judgment a Division Bench of this Court considered the maintainability of an appeal against an order of a single Judge rejecting some of the grounds urged in support of the prayer in the petition. The court observed thus:

“The petition brought by the appellant which despite other unnecessary though perhaps not improper prayers, is for quashing the notification, Ext. P. 6, is still pending before the learned single Judge and the rejection of some of the grounds urged in support of the prayer is at best a finding regarding those grounds and not a judgment or order within the meaning of Section 5 of the Kerala High Court Act so as to attract the appeal conferred by that Section. Therefore this appeal does not lie.”                                                                                          (Vide 1970 Ker LT 644).

Though the decision in Mohammed Haji v. Ayamma (197& Ker LT 326) (FB) was brought to our notice it appears to us that this does not help to resolve the controversy in this case, for, that case concerns the question of maintainability of an appeal against an order on an interlocutory application in a Second Appeal passed by a learned single Judge. The question of maintainability arose for consideration under Section 5 (iii) of the Act which permitted only an appeal against a judgment of a single Judge. The decision therefore may not be of assistance here when we are concerned with the scope of the term ‘order’ in Section 5 (i) of the Act.

12. Our attention has been drawn to a decision of a Division Bench of this Court in Corporation of Cochin v. Janardhanan (1982 Ker LT 386) : (AIR 1983 Ker 148). One of us, Justice Khalid, was a party to that judgment. That was not an appeal from an interlocutory order in original proceedings, but from independent proceedings after an Original Petition seeking certain reliefs had been disposed of by the court finally giving direction to the petition to shift his milk booth to a place suggested by
the respondent in the Original Petition, the Corporation of Cochin. The petitioner is said to have constructed the booth contrary to the direction consequent upon which the Corporation is said to have demolished the booth. It was thereupon that miscellaneous petition was filed seeking relief against the action of the Corporation of Cochin in demolishing the booth. The learned single Judge directed the Corporation to carry out certain works pointed out within a week from the date of the order and required the petitioner to instal the booth if he chose to do so in the place indicated earlier. That order was the subject-matter of appeal in Corporation of Cochin v. Janardhanan, the decision reported in 1982 Ker LT 386 : (AIR 1983 Ker 148). The question whether a miscellaneous application in an original petition which was disposed of could be maintained was raised before the Division Bench. The complaint was not against any violation of the direction contained in the judgment in the Original petition. The petition was to direct the Corporation to do something outside the directions contained in the original judgment. This Court found that the violation complained of was an independent action unconnected with judgment and therefore sustained the objection that a miscellaneous petition was incompetent and the relief should have been claimed in a properly framed original petition. Evidently the appeal was maintained not from an interim order but from an order on a fresh application which was held to be unsustainable in law by the Division Bench. The question whether an appeal was maintainable from an interlocutory order in a pending petition never arose for consideration and cannot be deemed to have been adjudicated in that case.

13. The term ‘order’ in Section 5 (i) must have the character of an adjudication which is final and binding on the parties. It is in this background that we have to see whether the order with which we are concerned here is an adjudication of any rights of parties. The relief sought in the Original petition is against respondents 2 and 3. The State, the 1st respondent is a formal party. Perhaps the 1st respondent is made a party because the decision of respondents 2 and 3 are being carried out through the 1st respondent. Respondents 2 and 3 have yet had no notice of the

Original petition. The State, in the role of an informant, has appeared through the Advocate General only “to apprise the court of the correct legal position”. The learned Judge took the view that the question whether Article 212 (2) would be attracted depends upon the consideration of various factors and it is unfair to determine the question without notice to those who will be affected, The Judge found no reason to withhold the issue of notice which had already been ordered. That was not done on adjudication of the rights of parties. In fact that is not even an order passed after hearing those who may be aggrieved by the adjudication. Therefore it would be wrong to say that the appeal filed by the State is against an order finally adjudicating any matter between the parties who are concerned with such adjudication. Therefore the appeal itself is not maintainable.

14. There is yet another contention raised as to the non-maintainability of appeal. It is conceded by the learned Advocate-General himself that whatever we may decide here on the interesting questions raised by the Advocate-General it will not be binding on respondents 2 and 3 as they are not parties to this appeal and so far as the State is concerned the State being only an informant is not obliged to carry out any direction of this Court. If this be the case it would be a futile exercise on the part of the court to adjudicate on the appeal. A final disposal of the appeal pre-supposes that it will have consequences. The Government being not admittedly aggrieved and the decision being one that will have to be rendered in a case where those who might be aggrieved are not parties the court will be embarking upon a fruitless and barren venture.

15. In the Province of Bombay v. Western India Automobile Association (AIR 1949 Bom 141) a Division Bench of the High Court of Bombay was considering the validity of a plea that an appeal by the Province of Bombay was not maintainable because the Province of Bombay was not a party against whom a decision had been given by the learned single Judge of the Court and no leave was sought by the Province of Bombay to file the appeal. The Government had referred for adjudication a
dispute between Western India Auto-mobile Association and its workers. The Association challenged the jurisdiction of the Tribunal to -enquire into this dispute and they filed a petition for a writ of certiorari or in the alternative for a writ of prohibition against the Tribunal preventing it from proceeding with the investigation of this dispute. It was contended before Cojayee J. by the Association that the Industrial Disputes Act did not apply to the Association at all and therefore there could be no reference to the Tribunal. They also contended that in any event the question of reinstatement of the dismissed employees could not be considered and investigated by the Tribunal the learned Judge held that the Industrial Disputes-Act did apply to the Western India Automobile Association, but held that it was not open to the Tribunal to consider the issue of reinstatement of the dismissed employees. To that extent a writ of prohibition was issued against the Tribunal. From this order the province of Bombay filed an appeal. The Western India Automobile Association also filed an appeal inasmuch as the learned Judge had held that the Tribunal had jurisdiction to investigate the dispute except on the question of reinstatement. The Bench had to consider the maintainability of the appeal filed by the Province of Bombay without seeking leave of the Court, Chagla, C. J. speaking for the Bench said in that context:

“The Civil P. C. does not in terms lay
down as to who can be a party to an
appeal. But it is clear, and this fact
arises from the very basis of appeals,
that only a Party against whom a decision is given has a right to prefer an
appeal. Even in England the position is
the same. But it is recognised that a
person who is not a party to the suit
may prefer an appeal if he is affected
by the order of the trial court, provided
he obtains leave from the Court of Appeal.”

16. It may be pertinent here to notice certain observations of Sulaiman J. in the decision of the Federal Court in United Provinces v. Mt. Atiqua Begum, AIR 1941 FC 16. In a litigation between a landlord and tenant the question whether the Regularization of Remissions Act, 1938 was within the competence of the Legislature which enacted it

arose for decision. When the case was heard by the Full Bench of the High Court, the High Court caused notice to be given to the Advocate-General of the Province in order that if the Government so desired he may appear to support the validity of the Act. The Full Bench dealt with that question and the case against came up before the High Court to be finally dealt with. Then the Government applied to be made a party to the appeal so that it may have a right of appeal to the Federal Court, The application was not opposed. The Government was duly made a party and consequently the Government appeared on the records as a respondent. It was against the decision of the High Court that the matter was taken to the Federal Court by the United Province Government. In this appeal a preliminary objection was taken that the High Court had no power to make the United Province a party to the suit and therefore the United Province had no right of appeal. It was urged that this was a question of jurisdiction. In dealing with the question of appeal to the Federal Court reference had to be made to Section 205 (2) of the Government of India Act, 1935 which controlled the right of appeal. That provided that “any party in the case” may appeal to the Federal Court on the ground that any constitutional question has been wrongly decided. There was no requirement that the party who appeals should be aggrieved by the decision. There was no indication that a formal party cannot file an appeal. Considering the question whether the U. P. Government was rightly impleaded Sulaiman J. observed :

“This was not like a case where an Advocate-General may be allowed to intervene merely to present before the Court the point of view of his Government, if such a duty is assigned to him by the Governor under Section 53 (2) of the Act”.

The further observation made by the learned Judge is pertinent and is of relevance to this case. The learned Judge continued:

“In such a case, he would have no independent right of appeal”. There is an equally illuminating passage in that case where Chief Justice Sir Maurice Linford Gwyer dealt with the question thus :

“It seems to me however by no means to follow that, because the Advocate-General of the province has been permitted to be put on the record as, an intervener in the suit, he is also entitled to prefer an independent appeal to this Court, in the absence of any appeal by the parties. He has an interest in the litigation, it is true, but the suit is after all between private parties; and if they are content with the decision of the Court, whether it be in favour of the plaintiff or the defendant, it is difficult to see on what principle the Advocate-General can be held to have a locus standi sufficient to justify an independent appeal of his own. If one of the parties appeals, then of course the Advocate-General has a right to appear before this Court, since he is an intervener in the suit; but he is a party only in a very special and limited sense. The doubts which I have felt on this point are not diminished by a very recent decision of the Canadian Supreme Court, (1937) Can SCR 427. In that case the Supreme Court of Alberta had held that a statute under which a husband had been ordered to pay a certain sum towards the maintenance of his wife was beyond the competence of the Provincial Legislature to enact. The Attorney-General of the Province had intervened to uphold the validity of the Act, and special leave to appeal to the Supreme Court of Canada had been granted both to the Attorney-General and to the wife, but the wife failed to perfect her appeal. The Supreme Court were of opinion that though, on an appeal to the Court by the wife, the Attorney-General would, in the ordinary course, have the right to appear in order to support the validity of the Act, he had no status to appeal to the Court, so long as the wife had not perfected her appeal, and that until she had done so the Court had no jurisdiction. This decision seems to me, if I may respectfully say so, to be based upon sound principle, and in my opinion this Court ought to follow it. There is a significant observation by Lord Haldane in (1915) AC 330 at p. 334 : (AIR 1914 PC 174), that Attorney-General intervening in private litigation were only entitled to present their views to the Judicial Committee and had no right of reply. If an Attorney-General had in such circumstances an- independent right of appeal of his own, it is difficult to see why he

should not be allowed a right of reply like any other appellant”.

17. Though the State is a party to the Original Petition the Advocate General was not presenting any case of the State. It was plainly agreed that no interest of the State stood to suffer by the issue of notice and even the order to issue notice in so far it concerned respondents 2 and 3 was not an order which would affect the State, the 1st respondent. In such circumstances apart from the fact that no decision was involved in the direction to issue notice, in any case there was no decision against the 1st respondent which could be the subject matter of the appeal. The 1st respondent was not aggrieved by any decision and the 1st respondent was not taking up by way of challenge any decision by which any relief was granted against the 1st respondent. For this reason also we must hold that this appeal is not maintainable.

18. We do not want to dispose of this case merely on the finding as to maintainability of the appeal particularly since both sides have argued before us elaborately on the question of the propriety of the issue of notice. For this purpose we will assume that the appeal is maintainable and then examine whether it will be proper for this Court to reverse the order of the learned single Judge directing issue of notice to respondents 2 and 3.

19. The Indian Parliament consists of the President and two Houses, the Council of States and the House of the People. The powers, privileges and immunities of each House of Parliament and of the members and committees of each House is to be such as may from time to time be defined by Parliament by law. This provision in Article 105 (3) of the Constitution enables the Parliament to make laws concerning powers, privileges and immunities of the House, members and the commities of each House, but until the parliament makes such law and defines these powers, privileges and immunities, those of the House of Common in the United Kingdom shall apply to the Houses of Parliament. What is said of the Houses of Parliament in Article 105 is true of the Legislatures of States for which provision is made in Article 194 (3) of the Constitution. The State Legislature has not so far made any law defining such

powers, privileges and immunities. Therefore it is the corresponding powers, privileges and immunities of the British parliament as on the date the Constitution came into force that should define such powers, privileges and immunities in the Legislative Houses in India. Article 194 (1) affirms freedom of speech in the Legislature of every State. That Article begins with the words “subject to the provisions of this Constitution”, but the provisions subject to which such freedom is affirmed are provisions relating to procedure such as Articles 208 and 211 and not fundamental rights such as that in Article 19 (1) (a). If what was conferred under Article 194 (1) of the Constitution was the freedom under Article 19 (1) (a) it was unnecessary to confer it specifically under Article 194 (1). That Article 19 (1) (a) does not control Article 194 (1) has been held by the Supreme Court in the reference made by the President of India under Article 143 of the Constitution, Special Reference No. 1 of 1964 (opinions reported in AIR 1065 SC 745). Clause (2) of Article 194 makes the freedom under Clause (1) unfettered and absolute. Article 194 (3) is in two Parts as we have already indicated. Under the latter part, in every case an immunity or power is claimed, it is necessary to enquire whether it was a power, privilege or immunity existing on 25-1-1950. Such power, privilege or immunity should not only be claimed but also recognised by the English Courts. By Clause (4) of Article 194 provisions of Clauses (1), (2) and (3) have been extended to those who have 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. Article 208 of the Constitution enables a House of the Legislature of a State to make rules for regulating, subject to the provisions of the Constitution, its procedure and the conduct of its business. It is evident from the provision itself that rules of procedure made under Article 208 of the Constitution must be subject to the provisions of the Constitution and therefore such rules cannot contravene the provisions of fundamental rights in Part III of the Constitution. Despite the absolute freedom of speech conceived in the Legislature under Article 194 (1) and (2) there is a restriction on such right embodied in Article 211. It prohibits discussion 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. Evidently this is to insulate the higher judiciary from discussion in the floor of the Legislature and to that extent the freedom of speech is curtailed, though violation of Article 211 is not actionable. Immunity from enquiry by courts is conferred by Article 212 of the Constitution. Clause (1) of that Article provides that the validity of any proceedings in the Legislature of a State shall not be called in question on the ground of alleged irregularity of procedure, Clause (2) provides that no officer or member of the Legislature of a State in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business or for maintaining order in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers. Clause (1) which precludes the jurisdiction of the courts, to enquire into the validity of any proceedings in the Legislature is restricted in scope. It is only when the challenge is on the ground of alleged irregularity of procedure that the proceedings of the Legislature cannot be called in question in a court. If the impugned procedure is illegal and unconstitutional it would be open to scrutiny in a court of law. This is the view expressed by the Supreme Court in the opinion to which we had adverted to (vide para 64 of the opinions reported in AIR 1965 SC 745).

20. For the purpose of this case was have to consider the scope of Article 194 (3) of the Constitution. As we have observed earlier, the State Legislature has not made any law under the first part of that Article. Such law could be made in exercise of the powers under Article 246 of the Constitution, but such law must be subject to the provisions of the Constitution including the fundamental rights. In other words any law made under the first part of Article 194 (3) is liable to be examined with a view to scrutinise whether it infringes the fundamental rights in Part III of the Constitution. If it does, to that extent the law would be void. If law is made by Parliament in exercise of its constituent power such law would be immune from attack as violative of the fundamental rights. Perhaps the Legislatures have not passed any law under Art 194 (3) precisely for

the reason that such law may be open to examination as violative under Article 13, That has been indicated in para 23 of the decision in Sharma’s case (AIR 1959 SC 395). Whatever privileges or immunities are now claimed by the Legislatures of the States are based on the existence of such privileges in the House of Commons in the United Kingdom when the Constitution came into force. Though Article 194 (3) has been amended by the Constitution (Forty-fourth Amendment) Act, 1978 that has not made any difference excepting that the same idea as conveyed by the article earlier by reference to the House of Commons is now conveyed without such reference.

21. The question calling for examination in the original petition is whether the powers, privileges and immunities under the latter part of Article 194 (3) would be subject to the fundamental rights in Part III of the Constitution and whether it would be open to the court to take cognizance of any complaint before it in respect of the Speaker and Secretary of the Legislature of a State in regard to a plea that the Speaker has been guilty of discriminatory exercise of powers. This calls for a closer examination of these two Articles.

22. The earliest reported case of the Supreme Court in which the Court was moved for redress in respect of an act of Legislature on the ground that there has been violation of fundamental rights is perhaps Gunupati Keshavram Reddy v. Nafisul Hasan (AIR 1954 SC 636). Pursuant to the order of the Speaker of the Uttar Pradesh Legislative Assembly one Shri Homi Dinshaw Mistry was arrested and detained. He was arrested on 11th March, 1952 and taken into custody to Lucknow to be produced before the Speaker of the Uttar Pradesh Legislalative Assembly to answer to a charge of breach of privilege. Mistry was not produced before a Magistrate within twenty four hours of his arrest, but was kept in detention in the Speaker’s custody at Lucknow. Chief justice patanjali Sastri, speaking for the Bench, found in that case that detaining a person in custody without producing him within 24 hours of the arrest before a Magistrate amounted to clear violation of Article 22 (2) of the Constitution which was quite peremptory in terms. Therefore the court found in the habeas corpus petition moved under Article 32 of

the Constitution that Mistry had to be released forthwith. Though there was not much of a controversy in that case on the question whether fundamental rights will operate in respect of an act of a Speaker and whether the Speaker has immunity from examination of his conduct in court on the basis of privilege claimed in Article 194 (3), we find that later, in Sharma’s case (AIR 1959 SC 395) there has been such an elaborate examination. That arose on a petition filed under Article 32 of the Constitution by the editor of ‘Searchlight’ on whom a notice from the Secretary of the Bihar Legislative Assembly was served to show cause before the Privileges Committee why action should not be taken for publishing a report of the speech of Shri Maheshwar Prasad Narayan Sinha In the Assembly including portions which had been directed by the Speaker to be expunged. It was claimed by the Secretary of the Legislative Assembly that publication of expugned portions amounted to breach of privilege conferred by Article 194 (3) of the Constitution and therefore the editor of ‘Searchlight’ who was responsible for such publication was liable to be proceeded against. In answer the petitioner relied on the freedom under Article 19 (1) (a) of the Constitution. After an examination of the powers possessed by the House of Commons the Supreme Court took the view that the House of Commons had, at the beginning of the Constitution, the power of preventing or prohibiting the publication of even a true and faithful report of the debate and proceedings that took place within the House. Then the question was whether, nevertheless, the latter part of Article 194 (3) should yield to the freedom of speech under Article 19 (1) (a) of the Constitution. Simply because there is no express provision in Article 194 (3) that it will be subject to the provisions of the Constitution it was not to be taken that the provisions of the Constitution including the fundamental rights would not operate in regard to that sub-article. If those provisions also operate the question would then be one of reconciling the two provisions to the extent possible. In this view S. R. Das, C. J. speaking for the bench said in Sharma’s case towards the close of para 28 of the judgment (vide 410 of the report).

“Article 19 (1) (a) and Article 194 (3) have to be reconciled and the only way

of reconciling the same is to read Article 19 (1) (a) as subject to the latter part of Article 194 (3), just as Article 31 has been read as subject to Article 265 in the cases of Ramjilal v. Income-tax Officer, Mohindargarh, 1951 SCR 127: (AIR 1951 SC 97) and Laxmanappa Hanumantappa v. Union of India, (1955) 1 SCR 769 : (AIR 1955 SC 3), where this Court has held that Article 31 (1) has to be read as referring to deprivation of property other wise than by way of taxation”.

Thus, considering the scope of the fundamental right under Article 19 (1) (a), the Court was of the view that the latter part of Article 194 (3) will not be subject to Article 19 (1) (a).

23. The petition before the Supreme Court in Sharma’s case (AIR 1959 SC 395) was one under Article 32 complaining of infringement of the fundamental right under Articles 19 (1) (a) and 21. Having found that Article 19 (1) (a) was not available the court examined whether Article 21 would be available. That was answered by the Supreme. Court by noticing that the petitioner cannot complain of infringement of Article 21 so long as procedure was prescribed in the matter of consideration by the Committee of Privileges and deprivation of liberty would only be in accordance with such procedure. This decision has been understood in the later case of opinion on the reference under Article .143 as recognising the operative force of Article 21 as against the privileges, rights and immunities under the latter part of Article 194 (3).

24. It may be interesting to notice that in the dissenting judgment of Justice K. Subba Rao in Sharma’s case (AIR 1959 SC 395) he has made a different approach. The latter part of Clause (3) of Article 194 was understood by him as a transitory provision and therefore the learned Judge expressed the view that, unless there was clear intention to the contrary, the transitory provision cannot be given a higher sanctity. Therefore if the law made by the first part would be void to the extent it contravened Article 19 (1) (a) of the Constitution unless saved by law made under Article 19 (2) there is no reason to assume that this would not be the case with regard to the powers, privileges and immunities under the latter part of Clause (2). The framers of the Constitution could not have, according to. Subba Rao J., thought that the privileges of the House of Commons

was subject to the fundamental rights in, that country, for, to assume so would be to impute ignorance to them , of the fact that the Parliament of the United Kingdom was supreme.

25. There was a more exhaustive examination of the question of fundamental rights vis-a-vis Article 194 (3) in the
matter referred to the Supreme Court
under Article 143 of the Constitution (AIR
1965 SC 745). The Speaker of the Legislative Assembly of Uttar Pradesh ad
ministered, in the name of and under
the orders of the said Legislative As
sembly, a reprimand of Keshav Singh
for having committed contempt of the
House and also for having committed
breach of the privileges of Narsingh
Narain Pandey, a member of the House.

These arose because of a pamphlet print
ed under the signature of Keshav Singh
and others. In pursuance to the decision taken by the House the Speaker
directed that Keshav Singh be committed to prison for committing another
contempt of the House by his conduct in
the House when he was summoned to
receive the reprimand and for writing
a disrespectful letter to the Speaker of
the House earlier. A warrant was issued
over the signature of the Speaker of the
House. In execution of the warrant
Keshav Singh was detained in Jail.

Thereupon one Mr. Solomon, an advocate, presented a petition to the Allahabad High Court on behalf of Keshav
Singh under Article 226 of the Constitution
and Section 491 of the Civil P. C. The Speaker
of the House, the Chief Minister of Uttar Pradesh and the
Superintendent of the District
Jail, Lucknow were respondents in the
petition. The petition came up before a
Bench of two Judges of the Court. The
Court passed an interim order directing
release of Keshav Singh on his furnishing two sureties and on execution of a
personal bond. Notice was ordered to be
issued to the respondents in the petition.

Instead of answering the notice issued
from the Court the Legislative Assembly
proceeded to take action against the two
learned Judges of the Allahabad High
Court who passed order on Keshav
Singh’s application, on Keshav Singh and
also on his advocate. It was as if all the
four had committed contempt of the
House. Keshav Singh was directed to be
taken into custody immediately and the
lawyer and the two Judges were asked
to be brought into custody before the

House. Thereupon the Judges filed separate petitions under Article 226 of the Constitution of India challenging the resolution passed by the Legislative Assembly as wholly unconstitutional and violating the provisions of Article 211 of the Constitution. The Judges contended that it was within their jurisdiction to exercise authority under Article 226 on the petition brought before them by Keshav Singh, that the resolution adopted by the Legislative Assembly amounted to contempt of court and since it was wholly without jurisdiction it had to be set aside. The petition was brought against the Speaker of the Vidhan Sabha and its Marshal. Apprehending serious developments a Full Bench of the Allahabad High Court consisting of 28 Judges of that Court took up the petitions for hearing and directed that these petitions should be admitted. The Full Bench also ordered issue of notices to the respondents restraining the Speaker from issuing the warrant in pursuance to the direction of the Legislative Assembly and from securing the execution of the warrant, if already issued. In the meanwhile the advocate for Keshav Singh also presented a similar petition. That application was also heard by the Full Bench of 28 Judges of the Allahabad High Court and an interim order was passed prohibiting the implementation of the resolution, the validity of which was challenged by the advocate as petitioner. Thereupon the Legislative Assembly explained its earlier stand by passing a clarificatory resolution, withdrew the warrants against the two learned Judges of the Allahabad High Court and the counsel, but placed them under an obligation to appear before the Legislative Assembly and offer their explanations. Evidently in the background of these developments the President of India considered it appropriate to make a reference of the matter to the Supreme Court under Article 143 of the Constitution for its opinion. It is in this reference that the relevant questions were exhaustively examined by that Court. Justice Gajendragadkar speaking for the Court expressed the view that just because Clause (3) of Article 194 does not begin with the words “subject to the provisions of the Constitution” it would not be reasonable to suggest that certain provisions of the Constitution which may not appear to have been excluded would nevertheless be understood as

excluded. Whenever there is an apparent conflict between the provisions in Article 194 (3) and the fundamental rights an attempt would have to be made to resolve the said conflict. The court ad-dressed itself to the question as to how the conflict is to be resolved if it appears that any powers, privileges and immunities claimed by the Legislative Assembly are inconsistent with the fundamental rights guaranteed by the Constitution. The Court adverted to Sharma’s case (AIR ,1959 SC 395) and noticed that the answer to this is to be found in the majority judgment in that case. That the decision in Sharma’s case does not lay down any general proposition that whenever there is a conflict between the provisions of the latter part of Article 194 (3) and any of the fundamental rights guaranteed by Part III the latter must always yield to the former was noticed by the Court. The majority decision therein must be taken to have settled that Article 19 (1) (a) would be subject to Article 194 (3), but Article 21 will operate notwithstanding the provisions of Article 194 (3). The Court indicated in para 127 of its judgment (page 786 of the report) that it did not propose to enter into a general discussion as to the applicability of all the fundamental rights to the cases where legislative powers and privileges can be exercised against any individual citizen of this country. It found that the matter was being dealt with on the looting that Article 19 (1) (a) does not apply, but Article 21 does. It further found that if an occasion arose it may become necessary to consider whether Article 22 can be contravened by the exercise of the power or privilege under Article 194 (3). The court also found that if Article 21 applies as has been found Article 20 may conceivably apply. It may be pertinent to refer to the following passage found at para 128 of the report:

“It would indeed be strange that the judicature should be authorised to consider the validity of the legislative acts of our Legislatures, but should be prevented from scrutinising the validity of the action of the Legislatures trespassing on the fundamental rights conferred on the citizens”.

26. To say that the act of the Legislature of the State or any of its members or the Speaker would be immune from scrutiny by courts under any circumstances is to pitch the claim too high. The Indian Constitution conceives the

judiciary and the legislature as different organs of the State having independent specified functions. Just as it is within the power of the Legislature to exercise all functions conferred on it there are functions conferred on the judiciary by the Constitution which it is expected to perform in accordance with the Constitution. Immunity from action would be desirable if proper functioning is to be secured and such immunity has been conferred on the Legislature by Article 194 read with Article 212 of the Constitution while immunity of the judiciary from discussion by the Legislature despite the very wide amplitude of the right of discussion by the Legislature has been conferred by Article 211 of the Constitution. True democratic spirit calls for mutual respect by these institutions and avoidance of trespass. The decision in the reference case has, to a considerable extent, resolved the controversy as to the scope of powers of the Legislature under the articles adverted to here in this judgment, but that cannot be understood as in any way contemplating immunity from examination by courts of any act of the Legislature. In fact one of the functions of the courts is to examine the validity of legislative acts. Whether the Legislature has been functioning within the permissible limits of its legislative power is a matter which quite often arises for examination before courts. Even so immunity is conferred on the Legislature under Clause (1) of Article 212. The proceedings in the Legislature may not be challenged on the ground of mere irregularity but may be challenged as illegal or unconstitutional. The proceedings of the Legislature may become unconstitutional if it violates the provisions of the Constitution and then there would be a case for examination as observed in the reference case at para 64 of the opinion.

Article 12 of the Constitution defines the State as including the Legislature of the State and so prima facie the power conferred under Article 226 of the Constitution on the High Court can be exercised even against the Legislature. The Supreme Court observed in the opinion rendered in the reference case that if an application is made to the High Court for the issue of a writ of habeas corpus it would not be competent to the House to raise a preliminary objection that the High Court has no jurisdiction to entertain the application because the detention is by an order of the House. Article 226 (1) read by itself does not seem to permit such a plea to be raised. Article 32 which deals with the power of this Court puts the matter still on a higher pedestal. The question here is not under what circumstances the Court would be justified in interfering, but whether under any circumstances it is open to the court to examine the validity of the proceedings of the Legislature. It may be that such validity is challenged on the ground of violation of the fundamental rights under Article 20 or 21 of the Constitution. In such cases they are open to examination is settled. It may be that there is challenge on the ground that such proceedings violate Article 14. If there is such violation as renders the act unconstitutional there is no reason why the Court should not consider the question of such trespass in proceedings under Article 226 of the Constitution. Reference may again be made to the opinion in the reference case at para 129 at page 787 of the re-port:

“If the power of the High Courts under Article 226 and the authority of this Court under Article 32 are not subject to any exceptions, then it would be futile to contend that a citizen cannot move the High Courts or this Court to invoke their jurisdiction even in cases where his fundamental rights have been violated. The existence of judicial power in that behalf must necessarily and inevitably postulate the existence of a right in the citizen to move the Court in that behalf; otherwise the power conferred on the High Courts and this Court would be rendered virtually meaningless. Let it not be forgotten that the judicial power conferred on the High Courts and this Court is meant for the protection of the citizens’ fundamental rights, and so, in the existence of the said judicial power itself is necessarily involved the right of the citizen to appeal to the said power in a proper case”.

27. It may be of interest in this context to refer to the well known case of Powell v. McCormack, (1969) 23 L Ed 2d 491. The petitioner Powell was duly elected from the 18th Congressional District of New York to serve in the United States House of Representatives for the 90th Congress. But, pursuant to a resolution in the House he was not permitted to take his seat. He along with some

of his voters filed a suit in the Federal District Court. His case was that he could be excluded only if the House found that he failed to meet the standing requirements of age, citizenship and residence. These requirements he did meet. Therefore it was claimed that he was excluded unconstitutionally. The District Court dismissed his complaint for want of jurisdiction of the subject-matter. This was confirmed in appeal. The Supreme Court of the United States found that it was an error to dismiss the complaint and that Powell was entitled to a declaratory judgment that he was unlawfully excluded from the 90th Congress. This is a case where the authority of the court vis-a-vis the House Representatives had to be decided by the United States Supreme Court. It was contended in that case by the respondents in the appeal that Article I, Clause (5) of the Federal Constitution assigns to each House of Congress the power to judge the elections and qualifications of its own members and to punish its members for disorderly behaviour. It was also said that under Article 1, Clause (3) the Senate has the ‘sole power’ to try all impeachments. This was contended to be delegation to the legislative branch of explicit grant of judicial power to the Congress. It was therefore the case of the respondents that the matter was not justiciable. Alternatively it was urged that even if justiciability was found the question seemed to be a political question and it was well established that the Federal Courts will not adjudicate on political questions. In determining whether the question was justiciable Chief Justice Warren, delivering the opinion of the Court observed:

“In deciding generally whether a claim is justiciable, a court must determine whether “the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded”. Baker v. Carr, (1962) 369 US 186 at p. 198 : L Ed 2d 663 at p. 674 (supra). Respondents do not seriously contend that the duty asserted and its alleged breach cannot be judicially determined. If petitioners are correct, the House had a duty to seat powell once it determined he met the standing requirements set forth in the Constitution. It is undisputed that he met those requirements and that he was nevertheless excluded.”

28. Explaining the plea that the case presented a political question it was said that judicial resolution of petitioners’ claim would produce a ‘potentially embarrassing confrontation between coordinate branches’ of the Federal Government. This was answered by Chief Justice Warren in the following words:

“But as our interpretation of Article 1, Clause (5), discloses, a determination of petitioner Powell’s right to sit would require no more than an interpretation of the Constitution. Such a determination falls within the traditional role accorded courts to interpret the law, and does not involve a ‘lack of the respect due (a) coordinate (Branch) of Government’, nor does it involve an “initial policy determination of a kind clearly for non-judicial discretion.” Baker v. Carr, (1962) 369 U S 186, at 217 : 7 L ed 2D 663, at p. 686. Our system of Government requires that Federal Courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the court’s avoiding their constitutional responsibility.”

29. The principles deducible from the above discussion with reference to the decisions of the Supreme Court may be summed up thus ;

1. A petition under Article 226 of the Constitution of India would be maintainable even against the Legislature of the State as such Legislature is within the definition of the term ‘State’ in Article 12 of the Constitution.

2. The freedom of speech in the Legislature of every State is absolute and it is not controlled by Article 19 (1) (a) of the Constitution. It is unfettered or absolute subject to the limitation in Article 211 of the Constitution, which provision insulates Judges of the High Courts and Supreme Court acting in the discharge of their duties, against discussion by the Legislature.

3. The law made by the Legislature under Article 194 (3) of the Constitution defining the powers, privileges and immunities of a House of the Legislature, of the members and the Committees of the House of such Legislature cannot contravene fundamental rights. It is open to the court to examine the validity of a plea that such laws are void to the extent they infringe the fundamental rights of the citizens.

4. The rules framed under Article 288 of the Constitution for regulating the procedure of a House of the Legislature and the conduct of its business are liable to judicial review if there is a case of infringement of the fundamental rights.

5. Till the legislature frames laws to define powers, privileges and immunities those asserted and recognised in the House of Commons in the United Kingdom as on the 26th Jan. 1950 will be in force.

6. In regard to such powers, privileges and immunities as are mentioned in (5) above it cannot be said that whenever there is a conflict between them and the fundamental rights in Part III of the Constitution the latter will yield to the former. An examination may be called for in respect of each of such fundamental rights asserted to determine whether it will survive against such powers, privileges and immunities.

7. The fundamental rights guaranteed under Article 19 (1) (a) of the Constitution will not so survive, but fundamental rights secured to citizens under Articles 20 and 21, will survive.

8. The immunity envisaged in Article 212 (1) of the Constitution is restricted to a case where the complaint is no more than that the procedure was irregular. If the impugned proceedings are challenged as illegal or unconstitutional such proceedings would be open to scrutiny in a court of law.

9. It would be futile to contend that a citizen cannot move the High Courts or the Supreme Court to invoke their jurisdiction in cases where his fundamental rights have been violated. The existence of judicial power in that behalf must necessarily and inevitably postulate the existence of a right in the citizen to move the court in that behalf.

30. Now we will come to the facts of the case before us. As mentioned earlier in this judgment the act of denial of pass to the first petitioner, an accredited press, representative, when to all others, 74 in number, such passes were issued is the basis for the plea of arbitrariness. It is also said that the procedure adopted for such denial was against the recognised practice and was violative of principles of natural justice. Evidently the first petitioner was never told why pass was being denied to him

when passes were issued to all other accredited press representatives. The petitioner had been attending the Assembly Session on behalf of “Deshabimani”. The denial of a pass to him would effectively get him out of the house and disable him from reporting the proceedings of the Assembly, a matter in which he would be vitally concerned as representing one of the newspapers in the State and as practising the avocation of a press reporter. It is true that there is no freedom of the press as such recognised as a fundamental right in India, but it is only a facet of freedom of speech and expression recognised in the Constitution. In these circumstances whether the first petitioner could complain that there has been an arbitrary denial to him of a privilege which has been extended to all others and that too by resort to a procedure which is unfair and violative of the principles of natural justice is a matter in the realms of discrimination under Article 14 of the Constitution. At this stage we do not have any material to show what justification there was for adopting such a course against the first respondent. Reference is made by the learned Advocate General to Rule 309 of the Rules made under Article 208 of the Constitution relating to procedure and the conduct of business in the Kerala Legislative Assembly. The rule reads :

“309. The admission of strangers during the sitting of the Assembly to those portions of the Assembly Chamber which are not reserved for the exclusive use of members shall be regulated in accordance with orders made by the Speaker.”

We asked the learned Advocate-General whether the Speaker has issued any general orders regulating admission of strangers under Rule 309 of the Rules of Procedure and the learned Advocate-General has no case that any general orders have been passed. In fact we have no material to know whether in the absence of any general order any special order has been passed in this case under Rule 309, to exclude the first petitioner from the Assembly, if there is such an order whether it is for the whole session or whether it is in perpetuity, whether any order was passed by the Secretary or whether no order was passed at all, but only passes less one in number than usual were signed and handed over to the public Relations
Department. In other words, we do not know whether the circumstances of the case attract the application of Rule 309. We do not know whether the exercise under Rule 309, if it was one such, would be justified or whether it could be characterised as arbitrary, A rule made under Article 208 is a rule which is subject to challenge as violating fundamental rights, if the jurisdiction of the Court is not ousted simply because the respondents are the Speaker and the Secretary of the Assembly and there are cases in which it is open to the Court to hold an examination of the facts with a view to determine whether the petitioner would be entitled to any relief then we need not decide in this case whether on the facts disclosed there is a case for action, for, the facts have not been disclosed. They will be disclosed only on the appearance of respondents 2 and 3, if respondents 2 and 3 cannot pitch their case so high as to claim that under no circumstances whatsoever a court can issue notice to a Speaker or the Secretary of the Legislative Assembly then of course there is a case for examination here. That is all what we attempt to show. The learned single Judge also felt so and directed issue of notice. There is absolutely no reason why that should be interfered with in appeal.

31. We have to indicate here that the issue of notice to the Speaker is only an intimation to the Speaker of the proceedings pending in this Court and of the date fixed for considering the respective cases of the parties. It would not require the Speaker or for that matter the 3rd respondent, the Secretary, to appear in the Court nor would it even compel them to file a return unless they dispute the petitioners’ case. If it be the duty of the Court to adjudicate, that duty cannot be performed except by bringing the institution of the proceedings to the notice of respondents 2 and 3 and giving them an opportunity to have their say in the matter,

32. We also wish to mention here about the plea that the 3rd respondent could claim any immunity or privilege. He is the Secretary of the Legislative Assembly, a paid officer appointed to the office of the Secretary. He is evidently not a member of the House. Though at first sight it would appear

that he is an officer the term ‘Officer’ used in Article 212 (2) has a meaning different from that in common parlance. Chap. III of Part VI of the Constitution deals with the State Legislature. Articles 168 to 177 fall under the heading ‘General’. Articles 178 to 187 fall under the heading ‘officers of the State Legislature’. Articles 188 and 189 fall under the heading ‘Conduct of Business’. Articles 190 to 193 are under the heading ‘Disqualification of Members’. Articles 194 and 195 fall under the heading ‘Powers, Privileges and Immunities of State Legislatures and their Members’. Articles 196 to 201 fall under the heading ‘Legislative Procedure’. Articles 202 to 207 fall under the heading ‘Procedure in Financial Matters’ and Articles 208 to 212 fall under the heading ‘Procedure Generally’. Thus we have to look into the provisions of Articles 178 to 187 to understand the term ‘Officers’ of the State Legislature. Article 178 shows that the members of the Assembly chosen as Speaker and Deputy Speaker are officers of the Legislative Assembly. Similarly Article 182 indicates that the Chairman and Deputy Chairman of the Legislative Council are officers of that Council. Article 187 deals with the Secretariat of State Legislature. The House or each House of the Legislature of a State shall have a separate secretarial staff and the Legislature of a State may by law regulate the recruitment and the conditions of service of persons appointed to the secretarial staff of the House or Houses of the Legislature of the State. Under circumstances similar to those here in the decision in K. A. Mathialagan v. P. Srinivasan, AIR 1973 Mad 371 (FB), the Secretary of the Legislative Assembly of Tamil Nadu claimed immunity and privilege when he was summoned under rule nisi to appear and answer a writ. The Tamil Nadu High Court took the view that he could not claim any such immunity because (at p. 386):

“It is only in a case where the officer of the Legislature of a State in whom powers are vested by or under the Constitution for carrying on regulating procedure or conduct of business he shall not be subject to the jurisdiction of any court in respect of the exercise by him of those powers”.

That court was of the view that where he was only exercising ministerial functions inside the House and he was summoned under the writ to state what happened inside the Legislature there was no question of immunity or privilege being claimed by him. Certain observations in the judgment of the Punjab and Haryana High Court in Jai Sing Rathi v. State of Haryana, AIR 1970 Punj & Har 379 (FB), may indicate a different view. There Article 227 of the Constitution was attempted to be invoked to examine the proceedings of the Haryana Legislative Assembly. Dealing with this the court in Para 13 of the judgment observed:

“Article 227 gives superintendence to this Court over all Courts and Tribunals within its territorial jurisdiction, but the Haryana Legislative Assembly is neither Court nor a Tribunal subordinate to this Court over which it has jurisdiction of superintendence according to that article. The power of Mr. Speaker to regulate the procedure or the conduct of business in the House or for maintaining order in it is immune from the jurisdiction of this Court under Clause (2) of Article 212. Same or similar immunity is also available to other officers of a State Legislature, such as its Secretary. So Mr. Speaker and the Secretary of the Haryana Legislative Assembly are unnecessary parties to this petition.”

There is no doubt and assumption by the court that the Secretary is an Officer evidently understanding the meaning of the term ‘officer’ as commonly used. There has been no examination of the scope of this term as used in Article 212 (2) of the Constitution in the context of the relevant provisions of the Constitution. We are only mentioning the arguments placed before us by both sides. We do not propose to resolve this question here.

33. We make it clear beyond doubt that the question whether the action is impugned in this petition is outside the immunity enjoyed by the Speaker or not is a matter on which we need not be taken to have spoken as it calls for consideration independently by the learned single Judge on the materials in the case. We have made reference to the decisions and have summarised the views expressed by the Supreme Court for the limited purpose of considering whether in any situation a notice could be issued to a Speaker by a court. In other words, we should not be taken to
have pronounced on the question in issue in the Original Petition on the merits. It is for the learned single Judge to consider how the principles of the decisions adverted to by us apply to the facts of the case.

In the circumstances we find that the original order of the learned single Judge directing issue of notice to respondents 2 and 3 must stand and no interference in appeal is called for even assuming that the appeal is maintain-able in law. We dismiss the appeal. No costs.