Dr. Jatish Chandra Ghosh vs Hari Sadhan Mukherjee 
The case of Dr. Jatish Chandra Ghosh vs Hari Sadhan Mukherjee [1961], is an important case on Parliamentary privileges. The issue in this case was that a MLA of Bengal assembly asked some questions to the ministry but his questions were not allowed to ask. Then, he published those questions in a local journal, the person against whom those questions were asked, filed case of defamation. The MLA raised the claim that he asked those questions in assembly and therefore, he is protected by parliamentary privileges.
The case reached to supreme court through appeal.
Facts of the case
- The appellant was an MLA of Bengal Legislative Assembly. In January, 1954, the appellant gave notice of his intention to ask certain questions in the Assembly. Those questions were disallowed in accordance with the rules of procedure for the conduct of business of the Assembly.
- In February, 1954, the appellant was informed that the questions proposed by him had been disallowed. The appellant published the questions that had been disallowed in a local journal called Janamat, in its issue of February 28, 1955.
- In July, 1955, the first respondent, whose conduct formed the subject-matter of the questions and who was then functioning as a Sub-Divisional Magistrate, filed a complaint against the appellant and two others, the editor, and the printer and publisher respectively of the journal aforesaid.
- The petition of complaint alleged that the appellant had made and published scandalous imputations against him intending them to be read by members of the public, that those imputations were false and unfounded and had been made with the definite intention of harming or with the knowledge and that the complainant felt greatly aggrieved and harmed in mind and reputation.
He also alleged that being a Government servant, the, complainant had to obtain the necessary permission from the Government for instituting legal proceedings for the vindication of his character as a public servant and that accounted for the delay in filing the petition of complaint.
- The petition of complaint charged the appellant with an offence under s. 500 of the Indian Penal Code and the second and third accused, who have been cited as respondents 2 and 3 in this Court, under s. 501 of the Indian Penal Code. The petitioner raised the question of his absolute privilege and immunity from prosecution under the provision of the Constitution. The Magistrate overruled the objection and held that the privilege claimed by the accused was not an unqualified one.
- And, the High Court Judge dismissed the application holding that a member of the Legislative Assembly had no absolute privilege in respect of the questions sought to be asked by him, which had been disallowed but he had published them all the same. It was also pointed out that the questions had never been asked in the House and that, therefore, could not be said to form part of the proceedings of the House.
- The appellant then moved Supreme Court and obtained special leave to appeal from the judgment of the High Court refusing the claim of privilege.
Contention of the Appellant
In the Court, it had been contended on behalf of the appellant that the learned Judge below had erred in his interpretation of the provisions of Art. 194 of the Constitution and that on a proper construction of those provisions it should have been held,
(1) that questions sought to be asked by a member of a Legislative Assembly, even though disallowed by the Speaker, formed part of the proceedings of the House, and, as such, their publication would not attract the provisions of the Indian Penal Code;
(2) the provisions of Art. 194 should be liberally construed in favour of persons like elected members of the Assembly who are rendering public service not only by making speeches and asking questions in the Assembly, but also by publishing them in the public press with a view to apprising the country and, particularly the constituency of what had been happening in the House.
In other words, it was claimed that there was an absolute privilege in favour of a member and that, therefore, he could not be prosecuted for having published the questions he sought to put, but had been disallowed by the Speaker.
Analysis of the court
This case is based on the provision of Art. 194; the said article provide as follows-
194. Powers, privileges, etc, of the House of Legislatures and of the members and committees thereof
(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State
(2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings;
(3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law;
The court noted that the first clause of Art. 194 does not call for any comment in, this case because no question as regards freedom of speech in the Legislature of a State has been raised.
Clause (2) of the Article has, firstly, laid down a bar against any proceedings, civil or criminal against any member of a Legislature of a State in respect of anything said or any vote given by-him in the Legislature or any Committee thereof; and
secondly, that no person shall be liable in a civil or criminal proceeding in respect of the publication of any report, paper, votes or proceedings under the authority of a House of such a Legislature.
The publication complained against in this case was not under the authority of the Legislative Assembly of West Bengal. So the second part of the second clause of Art. 194 could not be pressed in aid of the appellant’s contention. Neither, the court accepted the case within the purview of first clause under the meaning ‘anything said or any vote given’ by a member of the Legislative Assembly.
Naturally, therefore, reliance was placed in the course of arguments in the Court on the provisions of cl. (3) of Art. 194. Thus, the question arose,
“Does the publication of a disallowed question by a member of an Assembly come within the powers, privileges and immunities of the members of the House?”
The court noted as below-
- “If we turn to the legal position in England with reference to the House of Commons, it is clear that the immunity of a member of the House of Commons is in respect of the speeches made by him in Parliament, but it does not extend to the publication of the debate outside Parliament. If a member of a House of Commons publishes his speech made in the House separately from the rest of the proceedings in the House, he will be liable for defamation if his speech contains matters defamatory of any person.”
- The court referred two celebrated cases, ‘R v. Lord Abingdon (1794)’ and “Rex v. Creevey (1813)”.
- In the celebrated case of R. v. Lord Abingdon Lord Kenyon had decided that a speech which had been made in the House of Lords was not privileged if published separately from the rest of the debate. An information was filed against Lord Abingdon for a libel. He had accused his attorney of improper professional conduct in a speech delivered in the House of Lords, which he afterwards published in several newspapers at his own expense.
Lord Abingdon pleaded his own case in the Court of King’s Bench, and contended that he had a right to print what he had, by the Law of Parliament, a right to speak; but Lord Kenyon said that a member of Parliament had certainly a, right to publish his speech, but that speech should not be made a vehicle of slander against any individual; if it was, it was a libel. The Court gave judgment that his lordship should be imprisoned for three months, pay a fine of pound 100, and find, security for his good behaviour.
- Creevey’s case (supra)-Mr. Creevey, a member of the House of Commons, had made a charge against an individual in the House, and incorrect reports of his speech having appeared in several newspapers, Mr. Creevey sent a correct report to the editor of a newspaper, with a request that he would publish it. Upon an information filed against him, the jury found the defendant guilty of libel, and the King’s Bench refused an application for a new, trial.
Mr. Creevey, who had been fined pound 100, complained to the House of the proceedings of the King’s Bench; but the House refused to admit that they were a breach of privilege.
- After referring both above case, the court observed that,
“It is clear on a reference to the law in England in respect of the privileges and immunities of the House of Commons that there is no absolute privilege attaching to the publication of extracts from proceedings in the House of Commons. So far as a member of the House of Commons is concerned, he has an absolute privilege in respect of what he has spoken within the four walls of the House, but there is only a qualified privilege in his favour even in respect of what he has himself said, in the House, if he causes the same to be published in the public press.
The case of publication of proceedings of Parliament, not under the authority of the House, stands on the same footing as the publication of proceedings in courts of justice.
For this reasoning, the court referred the case of ‘Wason v. Walter(1868) where Cockburn, C.J. explaining why the publication of a single speech in the proceedings in the House would not be absolutely privileged, observed:-
” It is to be observed that the analogy between the case of reports of proceedings of courts of justice and those of proceedings in Parliament being complete, all the limitations placed on the one to prevent injustice to individuals will necessarily attach on the other; a garbled or partial report, or of detached parts of proceedings, published with intent to injure individuals, will equally be disentitled to protection. So long as Parliament does not crystallise the legal position by its own legislation, the privileges, powers and immunities of a House of a State Legislature or Parliament or of its members are the same as those of the House of Commons, as stated above.”
The court reached on the conclusion that,
“There is no absolute privilege, even in favour of a member of the Legislature, in respect of a publication.”
And as the case also involved the question of defamation, the court held that,
“The law of defamation has been dealt with in ss. 499 and 500 of the Indian Penal Code. Section 499 contains a number of exceptions. Those specified exceptions lay down what is not defamation. The fourth exception says that it is not defamation to publish a substantially true report of the proceedings of a court of justice, but does not make any such concession in respect of proceedings of a House of Legislature or Parliament.
The legal position is undisputed that unless the appellant can make out an absolute privilege, in his own favour, in respect of the publication which is the subject-matter of the charge in this case, the prosecution against him cannot be quashed. As we have held, that he has no such absolute privilege, in agreement with the High Court, he must take his trial and enter upon his defence, such as he may have.”
Dr. Jatish Chandra Ghosh vs Hari Sadhan Mukherjee: 1961 AIR 613, 1961 SCR (3) 486
 , 1961 SCR (3) 486
 (1794) 1 ESP. 226; 170 E.R.337
 (1868) L.R. 4 Q.B. 73