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Dr. Suresh Chandra Banerjee And Ors. Accused, v. Punit Goala Opposite Party.
Factual and Procedural Background
The petitioners, accused in criminal proceedings, are members of the editorial board and management of a Bengali newspaper called "Loka Sevak" published in Calcutta. The complaint arose from a report published by the newspaper on March 14, 1951, which recounted a speech made by Dr. Suresh Chandra Banerji, a member of the Legislative Assembly and one of the accused, delivered on March 13, 1951. The complainant alleged that the published report contained defamatory matter and was published maliciously and in bad faith. Proceedings were initiated under section 500 of the Indian Penal Code. The petitioners challenged the proceedings, contending that Article 194 of the Constitution barred such prosecution and that reports of legislative proceedings were privileged. The Chief Presidency Magistrate rejected this contention and directed process to issue. The petitioners then obtained a rule nisi from this Court, seeking transfer of records to decide the constitutional question of whether Article 194 barred the prosecution.
Legal Issues Presented
- Whether Article 194 of the Constitution of India bars criminal proceedings against persons connected with the publication of reports of speeches made in a State Legislature.
- Whether reports of proceedings of a State Legislature published in a newspaper, but not under the authority of the Legislature, enjoy any privilege against defamation proceedings under Indian law.
- Whether the freedom of speech guaranteed under Article 19(1)(a) of the Constitution protects the accused from defamation proceedings in this context.
- The applicability and effect of the recent amendment to clause (2) of Article 19 on the proceedings.
Arguments of the Parties
Petitioners' Arguments
- Article 194 prohibits proceedings against members of the Legislature for anything said or published by or under the authority of the Legislature.
- Reports of legislative proceedings are privileged and cannot be the subject of defamation proceedings.
- Clause (3) of Article 194 extends privileges and immunities akin to those of the UK House of Commons to members and possibly to those connected with publication.
- Reliance on English precedent Wason v. Walter for qualified privilege for reports of parliamentary debates.
- Freedom of speech under Article 19(1)(a) protects publication of such reports.
Court's Observations on Arguments
- Clause (3) of Article 194 applies only to members of the Legislature, not to publishers.
- Clause (2) protects only publications made by or under the authority of the Legislature, which is not the case here.
- English authorities limiting liability for publication of parliamentary debates do not apply in India absent constitutional or statutory privilege.
- Section 499 of the Indian Penal Code contains no exception for publication of legislative proceedings.
- Article 19(1)(a) freedom is subject to restrictions including defamation laws, as per clause (2), which was not amended retroactively to protect the accused.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Rex v. Lord Abingdon (1 Esp. 226) | Establishes that members of Parliament are protected for speeches in Parliament but may be liable for publication outside Parliament. | Used to illustrate that absolute privilege does not extend to publication of speeches in newspapers. |
| Rex v. Creevey (1 M. & S. 273) | Similar principle as Rex v. Lord Abingdon regarding liability for publication of parliamentary speeches. | Supports the limitation of privilege to speeches within the legislature only. |
| Wason v. Walter (L.R 4 Q.B 73) | Qualified privilege for faithful reports of parliamentary debates in public newspapers under English law. | Rejected as not applicable under Indian law absent express constitutional or statutory provision. |
| Keshavan Madhava Menon v. State of Bombay [(1951) S.C.R 182] | Determined that constitutional provisions (Art. 13(1)) have no retrospective effect. | Applied to hold that the constitutional amendment to Article 19(2) could not affect proceedings initiated before its commencement. |
Court's Reasoning and Analysis
The Court examined Article 194 of the Constitution, which grants absolute privilege to members of the Legislature for speeches made within legislative proceedings and to publications made by or under the authority of the Legislature. It found that the privilege does not extend to publications by private entities such as the newspaper "Loka Sevak," which published the report without legislative authorization.
The Court clarified that Clause (3) of Article 194, which incorporates privileges of the UK House of Commons, applies only to members of the Legislature and not to publishers or others connected with publication. The Court further reasoned that the absolute privilege granted to speeches within the Legislature would be undermined if members could be held liable for subsequent publications of their speeches unless they themselves instigated such publication.
The Court rejected the argument that English case law granting qualified privilege to reports of parliamentary proceedings (e.g., Wason v. Walter) applies in India, noting the absence of such privilege in Indian law or the Indian Penal Code. The Court emphasized that the Indian Penal Code's defamation provisions do not exempt reports of legislative proceedings.
Regarding Article 19(1)(a) and its restrictions under clause (2), the Court held that existing defamation laws prevail and that the recent amendment to Article 19(2) could not be applied retrospectively to bar the prosecution. The Court relied on the Supreme Court's decision in Keshavan Madhava Menon v. State of Bombay to support this conclusion.
Ultimately, the Court concluded that Article 194 does not bar the prosecution of the petitioners for the alleged defamatory publication and that the Chief Presidency Magistrate's order to proceed was correct.
Holding and Implications
The Court discharged the rule nisi and upheld the decision of the Chief Presidency Magistrate to proceed with the prosecution under section 500 of the Indian Penal Code.
The direct consequence of this decision is that the accused publishers and persons connected with the newspaper are not protected by Article 194 from defamation proceedings arising from the publication of the report of the legislative speech, as the publication was not authorized by the Legislature. No broader constitutional immunity or privilege attaches to such publications under Indian law unless expressly provided. The Court did not express any opinion on the merits of the defamation claim, leaving open the possibility of defenses under the ordinary law. No new precedent beyond the interpretation of Article 194 and its application to the facts was established.
Harries, C.J:— This is a rule calling upon the Chief Presidency Magistrate to show cause why the records of a certain case should not be transferred to this Court under the provisions of Art. 228 of the Constitution to enable this Court to decide the constitutional point involved in the case. We have heard the parties at length and we have come to the conclusion that this is not a case in which we should call for the records because it is clear that the view taken by the Chief Presidency Magistrate that the proceedings should, continue is well founded.
2. The petitioners, who are the parties accused in the proceedings, have been described by the complainant as members of the editorial board of a newspaper published in Bengali in the city of Calcutta known as “Loka Sevak”. Accused No. 1 Dr. Suresh Chandra Banerji, M.L.A, is said to be a member of the editorial board of that newspaper, whereas accused Nos. 2, 3 and 4 are respectively chairman of the board of editors, editor and publisher of the said newspaper. They are said also to be members of a recently formed political party in this State known as the Krishak Praja Mazdoor Party and the suggestion of the complainant is that the Loka Sevak is an organ of this party. The proceedings arose out of a report in this Bengali newspaper of a speech made by Dr. Suresh Chandra Banerji in the Legislative Assembly of the State of West Bengal. That speech is said to have been made on March 13, 1951, and the complainant in his complaint alleged that that speech contained matter defamatory of him. On March 14, the Loka Sevak published a report of the proceedings in the Legislative Assembly including a report of the speech of Dr. Suresh Chandra Banerji.
3. The complainant then filed a complaint in the court of the Chief Presidency Magistrate against the four petitioners alleging that this report of the speech of Dr, Suresh Banerji contained matter highly defamatory of him and had been published maliciously and in bad faith.
4. Before the Chief Presidency Magistrate it was contended that no proceedings could lie against the four petitioners. III was urged that such proceedings were prohibited by Art. 194 of the Constitution of India, and it was further contended that reports of proceedings of a legislature of a State were privileged and no prosecution could lie in respect of anything contained in such reports. The learned Chief Presidency Magistrate however directed process to issue and the petitioners were called upon to answer the complaint made in respect; of an offence under sec. 500 of the Indian Penal Code.
5. The petitioners then moved this Court and obtained a rule nisi calling upon the Chief Presidency Magistrate to show cause why the records of the case should not be transferred to this Court so that this Court could decide the constitutional point involved, namely, whether Art. 194 of the Constitution barred these proceedings.
6. We have heard Mr. Sudhansu Sekhar Mukherjee in support of this rule and we are satisfied that there is nothing in Art. 194 of the Constitution which bars this prosecution which has been instituted against the four petitioners.
7. Article 194 of the Constitution of India is in these terms:
“(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, and, until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution.
(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature”.
8. Clauses (1) and (2) of Art. 194 protect absolutely and completely a member in respect of any speech made by him in the Legislative Assembly or in any committee of the Legislature. His words spoken within the four walls of the Assembly are clearly absolutely privileged and no proceeding, either civil or criminal, may be taken in respect of them. It is therefore clear that Dr. Suresh Chandra Banerji who made the speech in the Assembly containing the alleged defamatory matter cannot be prosecuted for uttering the words complained of in the Assembly. It is to be observed however that in the complaint it is not suggested that he is liable in respect of the words spoken in the Assembly. What is suggested in the complaint is that he is liable in respect of the publication made at his instigation in the Loka Sevak on the following day.
9. It is further clear from clause (2) of Art. 194 of the Constitution that all persons connected with any publication of proceedings of a Legislature are protected if such publication is made by or under the authority of the Legislature itself. Official and authorised reports of proceedings are authorised by the Legislature and all persons connected with such a publication are protected from both civil and criminal proceedings by reason of clause (2) of this Article. It is not suggested that the reports of the proceedings in the Loka Sevak are published by or under the authority of the Legislative Assembly of this State and therefore clause (2) of the Article has no application whatsover.
10. Mr. Sudhansu Mukherjee however contended that these four persons connected with the publication of the report of the speech in the Loka Sevak were protected by reason of clause (3) of Art. 194 of the Constitution. That clause provides that in respect of all matters other than those covered by clause (2) the powers, privileges and immunities of members of a Legislative Assembly shall be such as may from time to time be defined by the Legislature and until such powers, privileges and immunities have been defined they shall be those of members of the House of Commons in England at the date upon which the Constitution came into force.
11. It appears to me that clause (3) of Art. 194 can have no application whatsoever to the case of publishers because it only applies to privileges, powers and immunities of members of the Legislative Assembly. Clause (3) would apply to Dr. Suresh Chandra Banerji as a member of the Legislative Assembly. But as I have said he is not being charged as a member, but as a person concerned with the publication of a defamatory matter in a newspaper.
12. Further it appears to me that if Dr. Suresh Chandra Banerji had in his private capacity caused his speech to be published in a newspaper he would still be liable in spite of clause (3) of Art. 194. A member of Parliament in England cannot be proceeded against in respect of anything which he has said in the House of Commons, but it has been held that if he causes his speech to be published in a newspaper, then he may be liable both civilly and criminally. Such were the decisions in the cases of Rex v. Lord Abingdon (1) (1 Esp. 226) and Rex v. Creevey (2) (1 M. & S. 273).
13. Further it appears clear from the words of clause (2) of Art. 194 of the Constitution that no publication of reports is protected unless such is a publication authorised by the Legislature. Protection by this Article is only given to one class of reports and by the ordinary rule of construction it must be held that no other class of reports is protected. Expressio unius exclusio alterius.
14. As this report is not protected by anything in the Constitution the ordinary law of the land must apply. It was urged by Mr. Sudhansu Mukherjee that reports of proceedings in a Legislature are the subject of a qualified privilege and he relied upon the well-known English decision in Wason v. Walter (3) (L.R 4 Q.B 73), in which it was held that a faithful report in a public newspaper of a debate in either House of Parliament, containing matter disparaging to the character of an individual which had been spoken in the course of the debate, is not actionable at the suit of the person whose character has been called in question. But the publication is privileged on the same principle as an accurate report of proceedings in a Court of justice is privileged, viz., that the advantage of publicity to the community at large outweighs any private injury resulting from the publication.
15. Mr. Mukherjee has urged that we should apply the same rule to India. But it appears to me that we cannot possibly do so. We have to apply the criminal law of the land and unless reports of proceed- ings in a Legislative Assembly are given a privilege by Indian law then we cannot possibly extend the principle of Wason v. Walter, (3) to proceedings in this country.
16. The offence of defamation is dealt with in Sec. 499 and sec. 500 of the Indian Penal Code and in sec. 499 appear a number of exceptions in which it is laid down what cannot be defamation. The fourth exception provides:
“It is not defamation to publish a substantially true report of the proceedings of a Court of Justice, or of the result of any such proceedings.”
17. But it is to be observed that there is no exception providing that it is not defamation to publish the report of proceedings of a Legislative Assembly. The rule of law enunciated in the English case of Wason v. Walter (3) finds no place in the Indian Penal Code and therefore we must hold that reports of proceedings of a Legislature in an Indian newspaper, unless such are expressly authorised by the House, are not the subject-matter of privilege and may found a complaint for defamation under sec. 500 of the Code.
18. Whether the matters contained in the report amount to defamation would of course depend upon whether such matters fell within any of the other exceptions of the Code Set out in section 499. We are not concerned with that question as the only matter before us is whether or not the report is privileged merely because it was a report of proceedings in a Legislative Assembly.
19. It appears to me quite clear that the fact that the report was a report of proceedings in a Legislative Assembly affords no privilege or protection, because the report was not one published under the authority of the Legislature concerned.
20. It is to be observed that Dr. Suresh Chandra Banerji could not be held liable for the publication in this newspaper apart from his connection with the activities of the newspaper unless of course he had expressly instigated the newspaper to publish the report. It is true that a person may be liable for defamation though he himself had not published the defamatory matter. For example, if A sends a communication to B but knows that B would be bound or likely to show the communication to others, A may be held liable for the publication to those others by B. It might therefore be said that when a person makes a speech in a Legislative Assembly he knows or ought to know that that speech would be duly reported in the local newspapers, particularly if the speech contained any matters of great public interest or matters likely to create a sensation. Therefore it might be said that though the speaker in the Legislative Assembly did not publish the Words, he uttered them in the Legislative Assembly knowing that they would be published outside the Assembly. This rule however as to vicarious publication cannot possibly apply to speeches made in the Assembly. Absolute privilege has been given in respect of anything said in a House of the Legislature. It was thought in England and in India that unless such absolute privilege was granted members of Legislative Assemblies might be afraid to speak out their minds and freely to express their views. Members therefore were completely protected even though the words they uttered were malicious and false to their knowledge. It was thought advisable in the interests of free and open discussion to give utterances in a Legislature complete and absolute protection.
21. It seems to me that if a member could be proceeded against because of the publi- cation of his speech, it would defeat completely the absolute privilege given to the speech itself in the Legislative Assembly. Any speaker in a Legislative Assembly must know that his speech may be reported and would know for a certainty that his speech would be reported if it was a sensational one or contained matters of great public interest. If there was any risk of his being made liable for the words by reason of the fact that he must have known that they would be published, he would lose that freedom to express himself which the law intended he should have within the four walls of the chambers of the Assembly. I think it is clear that a person who makes a speech in a Legislature cannot possibly be held liable for its publication in a newspaper when he has himself done nothing to cause such publication. The matter as I have already said is different if he has himself taken steps to publish it, as it is suggested Dr. Suresh Chandra Banerji did in this case.
22. For these reasons I think it is clear that Art. 194 of the Constitution of India does not prohibit proceedings in respect of this report in the newspaper. Upon the merits we express no opinion whatsoever. It will be open to these four accused persons to take any defence which is legitimately open to them. The only matter which we decide is that Art. 194 of the Constitution afford them no defence.
23. It was suggested in argument that Art. 19(1) (a) and clause (2) of Art. 19 of the Constitution might affect the question, It is however clear that the freedom of speech guaranteed to citizens by Art. 19(1)(a) is subject to the restrictions set out in clause (2) of the Article. Clause (2) of Art. 19 as it stood before the recent amendment was in these words:
“Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevents the State from making any law relating to libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.”
24. Existing law as to defamation therefore prevailed and sections 499 and 500 of the (Indian Penal Code were part of the existing law.
25. Clause (2) of Art. 19 has recently been amended by sec. 3(a) of the Constitution First Amendment Act, 1951. This Act received the assent of the President on June 18, 1951, and it is conceded that the proceedings in this case had been launched before the amendment. This amendment cannot be retrospective in its effect and that is the result, I think, of the decision of the Supreme Court in Keshavan Madhava Menon v. State Of Bombay. (4) [(1951) S.C.R 182]. In that case a majority of the Supreme Court held that Art. 13(1) of the Constitution had no retrospective effect but was wholly prospective in its operation. Further, it did not in terms make the existing laws which were inconsistent with the fundamental rights void ab initio or for all purposes. It had only the effect of nullifying or rendering all inconsistent existing laws ineffectual or nugatory and devoid of any legal force or binding effect only with respect to the exercise of fundamental rights on and after the date of the commencement of the Constitution. As it had no retrospective effect, if an act was done before the commencement of the Constitution in contravention of the provisions of any law which, after the Constitution, became void with respect to the exercise of any of the fundamental rights, the inconsistent law was not wiped out so far as the past act was concerned, for to say that it was, would be to give the law retrospective effect. It was therefore held that there was no fundamental right that a person should not be prosecuted and punished for an offence committed before the Constitution came into force. So far as the past acts were concerned the law existed notwithstanding that it did not exist with respect to the future exercise of fundamental rights.
26. It follows therefore that even if the recent amendment of clause (2) of Art. 19 affected the matter in any way it would not be material.
27. However it does not appear to me that the recent amendment can possibly affect the matter. But it need not be further discussed as Mr. Mukherjee concedes that clause 2 of Art. 19 as it originally stood would offer his clients no protection whatsoever. It appears to me that the amended Article also offers them no protection.
28. In my judgment the view taken by the learned Chief Presidency Magistrate that this prosecution should proceed was the right view and we therefore discharge the Rule and direct the prosecution to proceed.
29. Apparently the records were sent to this Court although not called for and they should be returned forthwith to the Court of the Chief Presidency Magistrate with a copy of this judgment.
30. It was suggested that we should interfere in this case under oar revisional powers or our inherent powers. In our view no grounds have been made out for any such interference at this stage.
Banerjee, J.:— I agree.
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