B L Saraf
As per the media reports, National Conference MLC Basher Ahmad Veeri has moved a privilege motion, in the Upper House of State Legislature, against a local Sub- Judge/ Judicial Magistrate, SHO and the complainant, “for lodging an FIR against his co-party MLC Showkat Ganai, on his remark made in the Legislative Council, a few days ago.” Reportedly, “the House Members took a serious note of registering an FIR and, referring to certain provisions of the Rules of Legislature, demanded an appropriate action against the officers and the person mentioned.”The development will, probably not without a reason, generate a debate and force people to make issue out of it. We are told that Jammu & Kashmir High Court Bar Association, Jammu, has struck work in solidarity with the Judicial Magistrate and as a protest against the privilege motion.
Well, leaving aside the details and the consequent turn the case may take and not holding brief for anybody, the matter needs to be put in proper perspective, quo its Constitutionality. That naturally takes us back to the year 1964, when on the Parliamentary Privileges issue, the U P State Assembly and the Allahabad High Court, almost, came to the head on collusion. House privilege was buttressed by the Speaker to issue warrants against two sitting Judges of the High Court.
Shorn off the unnecessary details, facts which gave rise to the unfortunate occasion in UP case are that on 14th March 1964 Legislative Assembly (House) issued a warrant against one Keshav Singh and ordered his detention in Lucknow District Jail, for having committed contempt of the House and the breach of privileges of Narrian Singh Pandey, member of the House, by leveling charges of corruption against him. To avoid his arrest and the consequences of the Speaker’s order, Keshav Singh engaged a counsel and approached Lucknow Bench of the Allahabad High Court, for release from the custody under an appropriate law. The petition was heard, on 19th March 1964, by the Bench of Justice N U Beg and Justice G D Sahgal, who ordered his release on bail. Feeling peeved by the High Court order, the House passed a resolution, on 21st March 1964, which said that the two Justices of the High Court, Keshav Sigh and his counsel had committed contempt of the House and ordered that, among others, Justices N U Beg and G D Sahgal should be brought in custody before the House.
When the learned Judges heard about this resolution they rushed to the Allahabad High court with petitions under Article 226. Full bench Of the Court, consisting of 28 Judges, took up the matter and ordered tje Speaker not to issue warrant in pursuance of the direction of the House. Then, President of India took notice of the matter, as it appeared to him that a serious conflict has risen between a High Court and a State Legislature which involved important and complicated questions of law. He, accordingly, made a reference (Special Reference No. 1 of 1964) to the Supreme Court, after framing as many as five questions for the determination.
The Apex Court answered the reference, as reported in AIR 1965 SC 745. The constraint of time and space will not permit a detailed examination of the case, but it is imperative to mention how the Hon’ble Court answered Question NOs 1, 3 & 4. They dealt, respectively, “with the competence of Lucknow Bench of the UP High Court, consisting of N U Beg and G D Sahgal, JJ to entertain and deal with the petition of Keshav Singh – challenging the legality of the sentence of imprisonment imposed upon him by the Legislative Assembly – and to pass orders of his release from jail: power of Legislative Assembly of Uttar Pradesh to direct the production of the said two Hon’ble Judges before it ; and, competence of Full Bench of UP High Court to entertain and deal with the petition of the two Hon’ble Judges and pass orders restraining Speaker and others from implementing the aforesaid direction of the said Legislative Assembly.” The Supreme Court answered Questions 1 & 4 in affirmative and Q 3 in the negative. In other words, the Apex Court held the action of two judges of the UP High Court as valid and competent when they passed interim order of bail in favor of petitioner Keshav Singh; and also opined that the Full Bench of the High Court was competent to entertain plea of two judges and to pass order of restraint against the action of Speaker of the Assembly. However, in answer to Q.3 the Apex Court felt that Legislative Assembly was not competent to direct the production of two judges of the Allahabad High Court, before it in custody.
In finding answers to the questions framed by the President, the Supreme Court alluded to various provisions of the Constitution. In particular, Article 211 was stressed which places a restriction on the discussion in the Legislature of the States with respect to the conduct of Judge of Supreme Court or a High Court in discharge of his duties. The Apex Court came to observe as;
“The existence of a fearless and independent judiciary can be said to be the very basic foundation of the Constitutional structure in India, and so, it would be idle,we think, to contend that the absolute prohibition prescribed by Article 211 should be read as merely directory and should be allowed to be reduced to meaningless declaration by permitting the House to take action against a Judge in respect of his conduct in the discharge of his duties.”
Protection granted to the High Court and Supreme Court Judges, could be, in spirit, read in favor of Sub-ordinate Judges as well. After all, they are equally important cogs in the system which is fearless and independent justice dispenser. It is not for nothing that we have separated judiciary from the executive way back in 1966.
It has to be understood that we are governed by a fundamental principle which rests on “Rule of law “as laid down in the Constitution. The UP Assembly put forth acclaim to determine for itself an ambit of its Constitutional power to punish citizen for its contempt. While not denying that power to it, the Assembly was reminded of its legal limits. We are sure that our legislative Council will pay heed.
J&K is confronted with so many contentious issues, some serious some spurious. We are riven apart. It could do well without one at the hand. We hope someone will read the Special reference No I, of 1964 to the Presiding Officer of the Legislative Council, before he moves on with the Privilege Motion.
(The author is former Principal District & Sessions Judge )
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