Privilege and Fundamental Rights

In one line

In 1958 the Supreme Court held by four to one that article 19(1)(a) must yield to legislative privilege; six years later it held that article 21 does not, and the reasoning of the first decision has been narrowing ever since.

In the wording a student can write in an exam: in M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395, the majority held that article 194(3) and article 105(3) stood in the same supreme position as the provisions of Part III, could not be affected by article 13, and that on a harmonious construction the general provisions of article 19(1)(a) must yield to the special provisions of article 194(1) and the latter part of article 194(3), while Subba Rao J dissented on the ground that in a conflict article 19(1)(a) must prevail and privilege must yield to the extent it affects the fundamental right; and in Special Reference No. 1 of 1964, (1965) 1 SCR 413, the Court held, as Raja Ram Pal v. Hon'ble Speaker, Lok Sabha, (2007) 3 SCC 184, records, that the majority decision in the earlier case must be taken to have settled that article 19(1)(a) would not apply and article 21 would.

M.S.M. Sharma, the Searchlight case

Facts. M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395, [1959] Supp (1) SCR 806, decided on 12 December 1958, the majority being Das CJ, Bhagwati, Sinha and Wanchoo JJ, with Subba Rao J dissenting. The petitioner was the editor of the English daily Searchlight of Patna. He published in its entirety a speech delivered in the Bihar Legislative Assembly by a member, portions of which the Speaker had directed to be expunged. The Secretary of the Assembly called on him to show cause before the Committee of Privileges. He moved the Supreme Court under article 32, contending that the notice and the proposed action violated his freedom of speech and expression under article 19(1)(a) and his personal liberty under article 21, and that as an editor he was entitled to the benefits of the freedom of the Press. The Assembly relied on article 194(3), no law having been made by the Bihar Legislature under Entry 39 of List II.

Held on the freedom of the Press, and this half is still good law. There could be no doubt that the liberty of the Press was implicit in the freedom of speech and expression guaranteed by article 19(1)(a) and must include the freedom of propagation of ideas ensured by the freedom of circulation; but the liberty of the Press in India flowed from that freedom of a citizen and stood on no higher footing, and no privilege attached to the Press as such.