Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Contracts Expression
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The Supreme Court of India upheld the regulatory authority of a state legislative assembly to regulate the publication of its debates or proceedings over the right to free speech. M. Sharma published an address to the Bihar Legislative Assembly in its entirety, claiming that his right to free speech protected this action, despite an order of the Speaker to expunge certain portions of the address. The Court found that Sharma’s actions did not directly fall under the free speech protections of Article 19 because it violated the authority reserved to the Assembly in Article 194 over the publication of its proceedings.
Petitioner M. S. M. Sharma was a journalist and the editor of “Searchlight”—one of the well-known English daily newspapers having a wide circulation in Bihar. Respondent Krishna Sinha was the “Chief Minister of Bihar and the Chairman of the Privileges Committee of the Bihar Legislative Assembly.” [p.1]
On May 30, 1957, Maheshwar Prasad Narayan Sinha, a member of the Bihar Legislative Assembly delivered a speech on the floor of the Assembly described as “one of the bitterest attacks against the way the Chief Minister was conducting the administration of the State.” [p.2] He alleged that Mahesh Prasad Sinha guided the Chief Minister in the selection of Ministers and the transfer of public servants, and he also alleged several instances of encouragement of corruption by the Government. [p.2] For instance, he referred to the case of a District Judge who was only “transferred” and not “discharged” as per the advice of the Chief Justice of the High Court of Bihar, because of the intervention of Mahesh Prasad Sinha. The member also criticized the appointment of Mahesh Prasad Sinha to the post of Chairman of Bihar State Khadi Board and alleged that it was made “to enable him to stay in Patna (the capital of Bihar) where residential accommodation at Bailey road was procured for him.” [p.2] Immediately thereafter, on a point of order being raised by member of the Legislative Assembly, the Speaker stated:
“I have already ruled with reference to whatever has been said about Mahesh Babu that such words would be expunged from the proceedings. But, whatever may be said with reference to the Chairmanship of the State Khadi Board will remain in the proceedings and the Honorable Member has the right to speak on the matter.” [p. 2]
In spite of the remarks being expunged, on May 31, 1957, “Searchlight published a report of the speech of Maheshwar Prasad Narayan Sinha.” [p.3] On June 10, 1957, Nawal Kishore Sinha, a member of the Legislative Assembly gave notice to raise a question of breach of privilege of the House in the Legislative Assembly. The notice stated that “Searchlight…published the entire speech of Maheshwar Prasad Narayan Sinha containing all the references to Mahesh Prasad Sinha which were ordered to be expunged”. [p.5] Consequently, the Legislative Assembly referred the matter to the Privileges Committee.
On August 18, 1958, a notice was served to the Petitioner calling upon him to show cause establishing “why appropriate action should not be recommended against him for breach of privilege of the Speaker and the Assembly in respect of the offending publication.” [p.8]
The Petitioner filed a writ petition under Article 32 of the Constitution in the Supreme Court of India contending that the said notice and the proposed action of the Privileges Committee violated his fundamental right to freedom of speech and expression under Article 19(1)(a) and the protection of his personal liberty under Article 21 of the Constitution of India. [p.10]
The Respondent, relying on Article 194(3) of the Constitution, contended that a State Legislative Assembly “enjoys all powers, privileges and immunities enjoyed by the House of Commons of the British Parliament at the time of commencement of the Constitution of India (i.e., 26 January 1950).” [p. 11] Thus, “proceedings in the House are not in the ordinary course of business meant to be published at all and that under no circumstances is it permissible to publish parts of speeches which had been directed to be expunged.” [p.11] Consequently, such a publication is a clear breach of the privilege of the Legislative Assembly and it is entitled to protect itself by calling the offender to account.
Chief Justice Sudhi Ranjan Das delivered the majority opinion of the Court.
The first issue before the Court was whether Article 194(3) of the Constitution of India empowered a State Legislative Assembly “to prohibit entirely the publication of the publicly seen and heard proceedings that took place in the Assembly or even publication of that part of the proceedings which had been directed to be expunged”. [p.20] The second issue before the Court was whether “such a privilege of the House under Article 194(3) [would] prevail over the fundamental right [to free speech and expression] under Article 19(1)(a) [of the Constitution].” [p.20]
The Court noted that the “Legislature of Bihar had not made any law with respect to the powers, privileges and immunities of the House of Legislature as enumerated in Entry 39 List II of the Seventh Schedule to the Constitution of India. Therefore, as per Article 194(3), each House of ‘the Legislative Assembly of Bihar [enjoyed] the powers, privileges and immunities enjoyed by the House of Commons at the time of commencement of the Constitution (i.e. 26 January 1950)’.” [p.20] Hence, the Court examined the privileges of the House of Commons at the time of commencement of the Constitution.
The Court noted that the House of Commons had asserted the right to control and, if necessary, to prohibit the publication of the debates and the proceedings since 1641. In 1641, “the House of Commons of the Long Parliament framed standing order ‘that no member shall either give a copy or publish in print anything that he shall speak in the House’ and ‘that all the members of the House are enjoined to deliver out no copy or notes of anything that is brought into the House, or that is propounded or agitated in the House’.” [p.23] The aforementioned standing order had not been abrogated or repealed and continued to remain in force. The Court also enumerated various other resolutions passed by the House of Commons reaffirming its privilege to censor publication of parliamentary debates and proceedings. [p.24-31] Thus, the Court came to the conclusion that “the House of Commons had at the time of commencement of the Constitution [i.e. 26 January 1950] the power or privilege of prohibiting the publication of even a true and faithful report of the debates or proceedings that [took] place within the House. A fortiori the House had at the relevant time the power or privilege of prohibiting the publication of an inaccurate or garbled version of such debates or proceedings.” [p.32] Consequently, the Court held that, as per Article 194(3) of the Constitution, the Bihar State Legislative Assembly was to have the same powers, privileges and immunities as the House of Commons until it enacted a law providing for the same. As a result, the Assembly could validly prohibit the Petitioner from publishing expunged portions of the speech.
The Petitioner contended that he had a fundamental right “to publish a true and faithful report of the publicly heard and seen proceedings of Parliament or any State Legislature including the portions of speeches directed to be expunged along with a note that the portion has been directed to be so expunged” under Article 19(1)(a) of the Constitution of India. [p.19] Further, in case of a conflict, the Petitioner contended that Article 19(1)(a) would prevail over Article 194(3) of the Constitution. Assuming that such a right to free speech vested in the Petitioner, the Court examined the conflict between Article 194(3) and 19(1)(a) of the Constitution and whose right would prevail (i.e. the Bihar Legislative Assembly or the Petitioner). [p.32]
The Petitioner made two principal arguments for supporting the proposition that Article 19(1)(a) of the Constitution prevailed over Article 194(3) of the Constitution.
First, the Petitioner contended that the provisions of Article 194(3) were subject to Article 19(1)(a) of the Constitution. [p.32] The Court rejected this contention on the ground that the language of Article 194 subjected only “clause (1) expressly to other provisions of the Constitution”. [p.34] On the other hand, “clause (2) to (4) [of Article 194] had not been stated to be so subject. [This] indicated that the Constitutional makers did not intend to subject those clauses to other provisions of the Constitution.” [p.34] Therefore, Article 194(3) was not subject to Article 19(1)(a) of the Constitution. Hence, the Petitioner failed in contending that the privileges of the Bihar Legislative Assembly were subject to his fundamental right to free speech and expression.
Second, Petitioner contended that Article 194(3) “operates as an abridgement of his fundamental right to free speech under Article 19(1)(a) of the Constitution”. [p.32] In this regard, it is pertinent to note that, as per Article 13 of the Constitution, a law made by the Parliament or State Legislative Assembly in its legislative capacity will be rendered void if it conflicts with fundamental rights such as the right to free speech and expression as stipulated in Part III of the Constitution. [p.36] Furthermore, it must also be noted that Article 194(3) provides that “powers, privileges and immunities of a House of Legislature of the State and of the members and committees thereof shall be such as may from time to time be defined by the Legislature by law (i.e law made in exercise of its legislative power) and that until then they shall be those of the House of Commons of the Parliament of United Kingdom and of its members and committees (i.e., constituent law meaning law that forms part of the Constitution itself).” [p.36] The Court held that a law made by a “State Legislature in pursuance of earlier part of Article 194(3) will not be a law in exercise of constituent power, but will be one made in exercise of its ordinary legislative powers. Consequently, if such a law takes away or abridges any of the fundamental rights, it will contravene the provisions of Article 13 and it will be void.” [p.36] However, the powers, privileges or immunities conferred on a Legislative Assembly by the latter part of Article 194(3) would not be void even if they were repugnant to fundamental rights because “Article 194(3) is part of the Constitution and as supreme as Part III of the Constitution.” [p.36] In light of the conflict between the Article 19(1)(a) and Article 194(3) of the Constitution, the Court held that the “principle of harmonious construction must be adopted and so construed, the provisions of Article 19(1)(a), which are general, must yield to Article 194(3) which are special”. [p.37]
Thus, the Court came to the conclusion that notice and proposed action by the Committee of Privileges of the Bihar Legislative Assembly was proper and hence dismissed the petition.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Justice Subbarao, in his dissenting opinion, noted that the Supreme Court of India in Gunupati Keshavram Reddy v. Nafisul Hasan AIR 1954 SC 636 held that “Article 194(3) (i.e. privileges) was subject to Part III (i.e fundamental rights)”. [p.57] However, in fairness, it must be conceded that the aforesaid case was “not a well considered opinion on the subject.” [p.37]
Nevertheless, the earlier position of law would have given precedence to the fundamental right to freedom of speech and expression of the Petitioner over the privileges of the Bihar Legislative Assembly.
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Case significance refers to how influential the case is and how its significance changes over time.
As per Article 141 of the Constitution of India, the law declared by the Supreme Court of India binds all courts in the territory in India. Therefore, this case establishes a binding precedent in the Indian jurisdiction.
It is also important to note that prior to the 42nd amendment to the Constitution of India, privileges of the State Legislatures and the Parliament of India were to be the same as those enjoyed “by the House of Commons”. However, after the 42nd amendment to the Constitution, the privileges of the State Legislature or its members “were to be those existing at the commencement of 42nd amendment and were to be ‘evolved’ by the House from time to time”. This meant that the existing privileges were to continue until the House evolved its own privileges.  So, the privileges of the State Legislatures and the Parliament of India continued to be that of the House of Commons. Thus, the 42nd amendment to the Constitution did not effect any change in the Constitution, though there was a verbal change in Article 194(3) of the Constitution. 
(1) M P Jain, Indian Constitutional Law, 2412 (6th Ed., 2013)
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