» Privip leges ing 5 SCS and Immunities of a Powers ps. egislatures and of members Privileges, tle, of the Houses of Legisagurss, on of a Constitution O™Millees thereof (a) Subject © regen Legis tu Stitutio, and to the rules and standing ortepesch Pe oan the Legislature, there skal be treed of of every State, ata, @) No mei Ceedings in ary. 1 State Legislatures and their Menibey, e liable to any ture of a State eee wote gig? pect of anything fond no person shall bed! any court in nyreommitice thereof, at Serie oka House im in the Legislature or any co under the author liable in respect of the publication by or ee or proceedings. 7 islature eee aot i (3) In oer esetane of a State, and of the mer es may from tet House of the Legis such Legislature, shall ee Cindi so defined, aj ee area bi y the Legislature by law, eee ee geee immediatal time be defined House and of its members an Constitution Party Fo tnc coming into force of Section 26 of the before the coming Amendment) Act, 1978]. Go alc) challicppy in relation @) The provisions of clauses (4 NO em eee eee x persons who by virtue of this Cons it Gea e een : otherwise to take part in the proceedings of, ii ion to members a State or any committee thereof as they apply in relatiot of that Legislature. mber of the Le; a Parliamentary Privileges. — This article whi. i i: islatur, ivil is /hich applies to the State Legislature, i tary Privileges. — This article e F and members and committees thereof is an exact reproduction of Article which applies to both Houses of Parliament and members and committees t of The following discussion may, sion under Article 105. 105, here. therefore, be supplemented with the discus, 67. Original cl. (3) restored by the Constitution 5. 34 of the Constitution (g2nd been brought into force till the: (3) In other respects, the powers, privileges and immu Legislature of a State, and of the members and the comm Legislature, shall be those of that House, and of its members and committees, at the commencement of Section 34 of the Constitution (Forty-second Amendment) Act 1976, and as may be evolved by such House of the Legislature of a State, so far as may be, in accordance with those of the House of the People, and of its members and commit. tees where such House is the Legislative Assembly and in accordance with those of the Council of States, and of its members and committees where Legislative Council. (44th Amendment) Act, 1978, S. 45, Amendment) Act, 1974 by repeatin, 6 which had replaced cl. ( n, Tead as: (3) but had not mities of a House of the ittees of a House of such such House is the for “shall be those of the House of Commons of Parliament of the United Kingdom, and of its members and committees, at the commencement of this ; Constitution (44th Amendment) Ac 69. See, Constitution” by the Scanned with CamScannerPOWERS, PRIVILEG| ART. 194) SOF § TATE LRGtstagy “STAVES, ML In defining parliamentary privilege, this anticte Parliament, adopts the following method, Two ai Tike Article ag Peete and freedom of publication of proceedings, we clauses (1) and (2) With respect to other priv; " clauses 1 ood, lad down that the powers, privileges or gine ate Legislatures shall be those of the House ore amu ot the St edined by an Act of the legislaturs Subsequent Amendment) Act, 978 amended clause (3) to junit By 2 AAmiemamunities of the members and committees ofa ane epose that were immediately in force before thi iegia Shall be tine 1979. For the privileges enjoyed by Gre this Amendment Act Pe the too privileges specifically mentioned in Arte ruse of Commons, ine 16 ta the discussion under Article 105. © 194, reference should onsker each clause of the article separately and take be which have arisen in relati ake note pai f the Constitution. ation to parliamentary Pelvieges UNities of Bae MINONS of the Uy Let us ct of certain problem: other provisions 01 Ciavst (1) Clause (1) of Article 194 declares that there shall be freed legislature of every State. Article 194(1) is made “subject ate of sy Constitution and to the rules and standing orders regulating ik Legislature”. Thus, this freedom would be subject to provi : seg. A member cannot accordingly raise discussion as ons of Articles a8 Supreme Court or High Court judge as it is prohibited by Article ne condi ofa ia this clause, itisnecessary to emphasise that the provisions of aces arg rct to which freedom of speech has been conferted on the le sslators nena the general provisions of the Constitution but only such of ieee ae the Betion of the procedure of the legislature, The freedom of oh ca teed to citizens under Article 191(1)(@) is, therefore, separate and inde Saat tee Te ogc) and does not control the first part of clause (0) of Article ae peech in the Provisions of this we procedure of the Cause (2) Clause (2) emphasises the fact that the freedom of speech conferred on the legisla tures under clause (1) is intended to be absolute and unfettered, Similar freedom is guaranteed to the legislators in respect of the votes they may give in the legis- lature or in committees thereof. Thus, if a legislator, exercises a right of freedom. of speech in violation, say, of Article 211, he would not be liable for any action in any court. Likewise, if the legislator by his speech or vote is alleged to have vio- lated any of the fundamental rights guaranteed by Part Ill of the Constitution in the Legislative Assembly, he would not be answerable for the said contravention in any court. If the speech amounts to libel or becomes actionable or indictable under any other provision of the law immunity has been conferred on him from 70, In the case of Parliament, Arts. 118 and 120. och 71. Powers, Privileges and Immunities of State Legislatures, re, AIR 3965 SC. 745: (1965) 1 SCR 485 Scanned with CamScannerIst him in respect of literally !8islative crore mm of speech on the lemete = Y absolute la makes it plain that the freedon of 2 w Thea ' Craust: (3) a ae ng lene of ue oes empowers the State Legislature to make laws Pre P by the Constituany, pvileges and immunities; the latter part till its amendmen, s vuitution (44th Amendment) Act, 1978 provided that until such Ine © question shall enjoy the same powers, privileges es ¥ < t are made, the legislature in Consnities which the House of Commons enjoyed at the commencemeen Constitution. Under this clause, each House wos entitled vo such. priv ilegete wrere shown or proved, to have subsisted in the House of Commone st thee evant time, i.e. at the commencement of the Constitution and recognised a Gourt. The enquiry as to the existence is of course to be made by the courts. No. the clause provides that the powers, privileges and immunities shalt eee immediately before the coming into force of the 44th Amendwnt, The relevant, pf the pre-amendment law and the various privileges that exist under ite been discussed under Article 105. as If the State Legislature under the first part of clause (3) makes a law Which such law would be subject Prescribes its powers, privileges and immunities, Article 13 and clause (2) of that article would render it void if it contravenes op abridges any of the fundamental rights guaranteed by Part Ill. . Right to punish for contempt. — Of the several privileges, the most controver. of Commons to punish for its contempt, sial has been the privilege of the House Sir Thomas Erskine May has defined “Contempt of Parliament” in these words, [Any act or omission which obstructs or impedes either House of Parliament in the performance of its functions or which obstructs or impedes any membe, or officer of such House in the discharge of his duty, or which has a tendency, directly or indirectly, to produce such results even though there is no precedent of the offence.” In regard to the privilege claimed by the House to punish for contempt, it is nec. essary to point out that there is a well-established convention recognised by the English courts that contempt of either House is in practice within its exclusive jurisdiction, since the facts constituting the alleged contempt need not be stated on the warrant of committal. It can issue a general or unspeaking warrant and no court can go behind it. Has the Legislative Assembly in India the privilege of committing a person to prison for contempt by a general warrant, that is, without stating the grounds which constituted the contempt? And if it does so, have the courts of law the power to examine the legality of such a committal? The mattet came up for the decision of the Supreme Court in the famous advisory opinion 72. Ibid. 73. May, Parliamentary Practice (7th Edn.) 109. Scanned with CamScannerMt oe oN ART. 104 POWERS PRIVILEGES OF STATE LEGISLATIVES wy sus “yh in Powers, Privileges and Immunities of Slate Legislatures, re. This toferoneg * Seguin a are by a pce ra eee of the Allahabad High Court staying, under Article 226, the plementation gr y the UP. Assembly resolution ordering two judges of that court tie brought j, ad, custody before the Bar of the House to explain why they should nor ae Punished ‘ for the contempt of the House. The two judges had admitted the habeas con’ iy Petition and granted bail to one Keshav Singh who was undergoing impriee sett ment in pursuance ofthe Assembly Resolution declaring him uty of epee" a of Privilege. The resolution ofthe Assembly and the tay order nso fn = at Bench resulted in a constitutional stalemate. Consequently, the President bi 4 the matter under Article 143 to the Ren Cou rt for its opinion - Nt The Supreme Court by a majority of 6:1, through an elaborate and 1g 4 opinion delivered by Cajendragadkar C], held thet in India, notwithstananed hy general warrant issued by the Assembly, the courts could examine ye legality'ct the committal in proper proceedings. Ly of Yi in jhe following other propositions of constitutional significance were laid down \ in the majority judgment: 1. It is implicit in the Constitution that the struction of Article 194 in regard to the nature, Scope, and effect of power: of the House ultimately rests with the judiciary of the country ! 2 Article 194(3) cannot be read in isolation. The impact of Articles 236 32and 211 has to be ascertained in order to determine the scope icle Article 226 empowers the High Court to issue a writ of bese against “any authority”. This would include the legislature since y ae tion is made in favour of a detention order by the House for br i privileges. Article 211, on the other hand, unambiguoush the conduct of a judge in the discharge of his dutie. subject-matter of any action taken by the House in privileges conferred by the latter part of Article 1 3. Article 212 does not act as a limitation of the Powers of the court to test the legality of an action. This article ousts the jurisdiction of the courts only in cases of regulation of procedure inside the House. 4. The fact that the first privileges as being s construing the latter “law” question of determining the con- ly indicates that can never become the exercise of its powers or 94(3). Part of Article 194(3) refers to future laws defining the ubject to fundamental rights is a significant factor in part of Article 194. Such a State legislation would be within the meaning of Article 13 and the courts will be competent to examine its validity vis-a-vis the fundamental rights. 5. Possibly there is a well-established convention recognised by the English courts to treat a general or unspeaking order issued by the House as usu- ally conclusive. The basis for this convention is rooted in the history of England where the House of Commons was the highest court of justice * One time. It is because of this history that the House of Commons ae fl be regarded as a superior court of record, with the result that the gen AIR anke on Scanned with CamScanner-_ Warr; on a Warra 1ssued Y it were PART Vy © Not subj ch senate? Superigy Hist Io close serainy ust as similar ReVer dischay nit {0 Ind ia, 0 ae Of record were held to ybelexerpt tional p, k 2t8ed any judicial fur the ther hand, 1 eervandl consti Bround a, '@' functions and their historical a! Tecord in any Rts Not support their claim to be regarded as ee Tants issued ects No immunity from scrutiny by _— of general war. 6 Although 'Y @ House in India can, therefore, be claim ee eral, jt on ® Pinion was tendered as regards fundamental rights in Een ‘ei ’2S Made clear that so far as Articles 21 and 22 ar eee Privileges etc, which are claimed must be consistent with these arti ein the Context of Article 208. The principle laid down in this oe : aa Sharma v. Sri Krishna Sinha’ was specifically restricted to Article 19(3)(a). er Article 105. For further developments and details, see comments under Arti 5 195. Salaries and allowances of members. — MS Assembly and the Legislative Council of a State shall be ta Aiba i such salaries and allowances as may from time to time be determined, by the Legislature of the State by law and, until provision in that respect is so made, salaries and allowances at such rates and upon such conditions as were immediately before the commencement of this Constitution applica- ble in the case of members of the Legislative Assembly of the correspond- ing Province. Legislative Procedure 196. Provisions as to introduction and passing of Bills. — (1) Subject to the provisions of Articles 198 and 207 with respect to Money Bills and other financial Bills, a Bill may originate in either House of the Legislature of a State which has a Legislative Council. (2) Subject to the provisions of Articles 197 and 198, a Bill shall not be deemed to have been passed by the Houses of the Legislature of a State having a Legislative Council unless it has been agreed to by both Houses, either without amendment or with such amendments only as are agreed to by both Houses. (3) A Bill pending in the Legislature of a State shall not la of the prorogation of the House or Houses thereof. (4) A Bill pending in the Legislative Council of a State which has not been passed by the Legislative Assembly shall not lapse on a dissolutior of the Assembly, (5) A Bill which is pending in the Legislative Assembly of a State, 0 which having been P ich hi assed by the Legislative Assembly is pending in th egislative Council, shall lapse on a dissolution of the Assembly. ipse by reason Scanned with CamScannerFINDIA aE Ordi warty, inance, Similar, 1985 Which w: . similarly in Kridye not 82S Kept alive through repromulgation SAME 19h, ART 2 keep aliyy 'shna Kumar Singh v. State BE ain esive ordinances Issued ty, © the initial o ate of Bihar’, saccessiee oT Sted in th establish: rdinance were held unconstitutional . Ever ishment of status quo ante. fai evide Proviso t son a mater in 0 clause ( “ceo caters vo an oreinanies On OT us Cor (3). — The proviso refers to 2 on respect lo ma current List and should be read alone, Wit 54. With ee yolatures = ter erated i Union and State 7 7 ‘enumerated in the Concurrent List, both the Sees an Act of Partiamens 5, Petent to make laws, but if a State law is TEPUBT ONS the extent of FePURNANG, aw shall "gets that Where aS for the consid existing law on the same subject, the Stale be void. Article 254(2) admits an tion to this vire, is reserved law, after it has been passed stature: font thereto, that law, in spite oy of the President and the ?’ as ve of Parliament oF 2% exiting lath be wat ond op lia mes the principle Contain i 0 othe proviso applies the PN 2 be valid and operative im tHe Fre Governor with this sfiference ha repugnant 0} " tions from the President. Carrer V ‘The High Courts in the States 214. High Courts for States. — "I" * “] There shall be a High Court for each State. opt 4] nen «article has to be read along with Articles 230 and 231 which respectively Tie te aka ai f High Courts to the Union territories rovide for the extension of jurisdiction © prev or the establishment of a common High Court for two or more States. A High Court may also have one or more Benches jurisdiction. In determining the question the opinion of the Chief Justice of the Hig! The Chief Justice may express his opin’ opinion is not open to challenge before the Supreme Court? Cont and this tion of itself within the area of its territorial of having Benches and their location jh Court shall have prime importance, ion through a committee of judges. Such 215. High Courts to be courts of record. — Every High Court shall bea court of record and shall have all the powers of such a court including the power to punish for contempt of itself. 9. (1998) 5 SCC 643. 10. The brackets and figure “(1)” omitted by the Constitution (7th Amendment) Act, 1956, and Sch. ™_ 11. Cs. (2) and (3) omitted by S. 29 and Sch, ibid, Omitted cls. read: (2) For the purposes of this Constitution the High Court exercising jurisdict S25 ion it relation to any Province immediately before the commencement of this Constitutio shall be deemed to be the High Court for the corresponding State. (3) The provisions of this Chapter shall apply to every High Court referred to int article. 12, Federation of Bar Associations in Karnataka v. Union of India, (2000) 6 SCC 715: AIR 2000 2544. Scanned with CamScannerART. 216) Every High Court is declared to be a court of re« THEMICH Coutts teristics of a court of records) tha records of auch, cord. There are two oy istics Oly value and they cannot be ques Of such a court are adsnitied ue "Re power to punish for contempt of Ree ce acon Pe tof court is a special power derived from pene Coen 2 Santi Contempt of Courts Act, 1971. No Act of Legislature Gud Ge cof confer it afresh on the High Court by virtue of its own Sue eee this power remains unrestricted by any legislation." The High eae Therefore, this fo try and punish for contempt of court includes all necessary Saas joryers to effectuate that jurisdiction.” As the power to punish for its Saat oe eh High Court contempt maters arising in one High Court cannet be transferred to another High Court.” e ‘As courts of record the High Courts also have the power to review and correct their decisions, even’ though no specific power of review is conferred on the High Courts as is conferred on the Supreme Court under Article 137. AS such they have inherent and plenary powers which include the power to review their decisions and correct the errors apparent on the face of the record.” It can undo its decision obtained by playing a fraud on the court. 216. Constitution of High Courts. — Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint. vp *] 2) it has contemp! The Constitution does not fix the number of judges of a High Court, Each vonsist of such number of judges as may be deemed necessary by the (uaiges’ case), the court held that the In S.P. Gupta v. Union of India” “jer a constitutional obligation to review the strength of each High the arrears of cases pending, therein. However, no mandamus | the President to increase the strength. Finally, in Supreme Court e court held that ‘Advocates-on-Record ‘Assn. v. Union of India?! (Second Ju dges’ case), the the Chief Justice of India and the Chief Justice of the High Court concerned mus' undertake the periodical review of the strength of judges in the interest of effec tive administration of justice and make recommendations about such strength t court is to President. President is un Court vis-a-vis could lie to compe’ «aa Patnaik v. Balakrushna Kar, AIR 1953 Ori 249, 1 Phitam Pal v. High Court of M-P, 1993 Supp (8) SCC 529: AIR 1992 SC 904. 15, RL Kapur v. State of Madras, (1972) + SCC 651; ‘AIR 1972 SC 858. Te, Sukides v. Teja Singh, AIR 1954 SC 186: 1959 SCR 454, TF MM. Thomas v. Slate of Keraia, (2000) 1 SCC 666: AIR 200 SC 540. 18. Hamza Haji. State of Kerala, (2008) 7 SCC 436: ‘AIR 2006 SC 3028. 19. Proviso omitted by S. 11, ibid. Omitted proviso read: Provided that the Judges so appointed shall at maximum number as the President may, from time that Court. 20. 1081 Supp SCC 87: AIR 1982 SC 149; Subhash Sharma v. Union of India, 1991 Supp («sce 13. Bijoyanan no time exceed in number £ to time, by order fix in relatic Scanned with CamScanner