P L D 1988 Karachi 309 (PLP)

The leading opinion was given by Gajendragadkar, C.J. with whom all the Judges agreed, whereas A.K. Sarkar, J., gave, his separate opinion. The learned Chief Justice gave the following answers to the above five questions,. (1) On the facts and circumstances of the case, it was competent for the Lucknow Bench of the High Court of Uttar Pradesh, 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 of Uttar Pradesh for its contempt and for infringement of its privileges and to pass orders releasing Keshav Singh on ball pending the disposal of his said petition. (2) On the facts and circumstances of the case, Keshav Singh by causing the petition to be presented on his behalf to the High Court of Uttar Pradesh as aforesaid, Mr. B . Solomon, Advocate, by presenting the said petition, and the said two Hon'ble Judges by entertaining and dealing with the said petition and ordering the release of Kashav Singh on, bail pending disposal of the said petition, did not commit contempt of the Legislative Assembly of Uttar Pradesh. (3) On the facts and circumstances of The case, it was not competent for the Legislative Assembly of Uttar Pradesh, to direct the production of the said two Hon'ble Judges and Mr. B. Solomon, Advocate, before it in custody or to call for their explanation for its contempt. (4) On the facts and circumstances of the case, it was competent for the Full Bench of the High Court of Uttar Pradesh to entertain and deal with the petitions of the said two Hon'ble Judges and Mr. B. Solomon, Advocate, and to pass interim , orders restraining the Speaker of the ‑‑‑‑legislative Assembly of Uttar Pradesh and other respondents to the said petitions from implementing the aforesaid d directions of the said Legislative Assembly; and (5) In rendering our answer to this question which is very broadly worded, we ought to preface our answer with the observation that the answer is confined to cases in relation to contempt alleged to have been committed by a citizen who is not a member of the House outside the four‑walls of the legislative chamber. A Judge of a High Court who entertains or deals with a petition challenging any order or decision of a Legislature imposing any penalty on the petitioner or issuing any process against the petitioner for its contempt, or for infringement of its privileges and immunities, or who passes any order on such petition, does not commit contempt of the said Legislature; and the said Legislature is not competent to take proceedings against such a Judge in the exercise and enforcement of its powers, privileges and immunities. In this answer, we have deliberately omitted reference to infringement of privileges and immunities of the House which may include privileges and immunities other than those with which we are concerned in the present Reference." It may be observed that during the course of the above opinion the learned Chief Justice also referred to Articles 194 and 211 of the Indian Constitution, which are akin to Articles 66 and 68 of the Constitution. It may be advantageous to reproduce the above Articles 194 and 211, of the Indian Constitution, which read as follows: 194(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. Article 211 No discussion shall take place in the Legislature of a State with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties. , On the above‑quoted Article a the learned Chief Justice observed as follows:- "We are not impressed by Mr. Seervai's arguments. The fact that Art. 211 appears under a topic dealing with 'Procedure Generally' cannot mean that the prohibition prescribed by it is not mandatory. As we have already indicated, in trying to appreciate the full significance of this prohibition, we must read Articles 211 and 121 together. It is true that Art. 194(2) in terms provides for immunity of action in any Court in respect of a speech made by a member or a vote given by him in the Legislative Assembly. But this provision itself emphatically brings out the fact that the Constitution was anxious to protect full freedom of speech and expression inside the legislative chamber, and so, it e precaution of making a specific provision to safeguard this freedom of speech and expression by say that even the breach of the Constitutional prohibition prescribed by Art. 211 should not give rise to any action. ,Undoubtedly, the Speaker would not permit a member to contravene Art. 211; but if, inadvertently, or otherwise, a speech is made within the legislative chamber which contravenes Art. 211, the Constitution‑, makers have given protection to such speech from action in any Court. The House itself may and would, no doubt, take action against him. It is also true that if a question arises as to whether a speech contravenes Art. 211 or not, it would be for the Speaker to give his ruling on the point. In dealing with such a question, the Speaker may have to consider whether the observations which a member wants to make are in relation to the conduct of a Judge in discharge of his duties and in that sense, that is a matter for the Speaker to decide, But the significant fact still remains that the Constitution‑makers thought it necessary to make a specific provision by Art. 194(2) and that is the limit to which the Constitution has gone in its objective of securing complete freedom of speech and expression within the four‑walls of the legislative chamber." (vii) Syed Yousaf Mahmud and others v. Abdul Hadi Khan through Dr. M. A. Hasseeb Khan and others 1983 C L C 3319, in which a learned Single Judge of the Lahore High Court while construing provisions of Displaced Persons (Compensation and Rehabilitation) Act 1958 and the Scheme framed thereunder, observed that when the enactment provides that a thing should be done in a particular manner it has to be done in the same way or not at all. (viii) Mulla Baz Muhammad and another v. Mst. Bakht Bibi and 31 others 1986 C L C

22. In the above case a Division Bench of the Baluchistan High Court while construing sections 4 and 5, C.P.C. (Special Provisions) Ordinance (1 of 1968) held that where law provides certain manner for doing certain act and such provision was not directory but mandatory, the manner prescribed by law would be adhered to and any deviation from course prescribed, therefrom would vitiate action taken.

7. Mr. Kamal Azfar has also referred to the following treatise: (i) The Privileges and Practices of Parliament by Dr. M. Safi Khan Yousufzai in which the author has referred to the history of the U.K. Parliament in relation to its rights and privileges culminating in the passing of Bill of Right in 1689 providing that the freedom of speech and manner of speech in Parliament ought not to be questioned in any Court or place out of Parliament. (ii) Erskine May Parliamentary Practice, Eighteenth Edition, particularly the following passages: "SPEECHES IN PARLIAMENT NOT ACTIONABLE. 'the absolute privilege of statements made in debate it, no longer contested, but it may be observed that the privilege which formerly protected Members against action by the Crown now serves largely as protection against prosecution by individuals or corporate bodies. Subject to the rules of order in debate (see Chap. XIX) a member may state whatever he thinks fit in debate, however, offensive it may be to the feelings, or injurious to the character, of individuals; and he is protected by his privilege from any action for libel, as well as from any other question or molesation (s). Dillon v. Balfour.‑‑In this action brought in the Irish Courts in 1887 against a member of the House of commons for words spoken in the House, the Court being satisfied that those words constituted the cause of action, ordered that the writ and statement should be taken off the records of the Court, the Court having no jurisdiction in the matter (t). Restrain on Speech in Parliament. ‑‑'Speech and action in Parliament may thus, be said to be unquestioned and free. But this freedom from external influence or interference does not involve any unrestrained licence of speech within the walls of the House' (Anson, Vol. I (Parliament), p.170). The cases in which members have been called to account and punished by the House for offensive words spoken before the House are too numerous to mention (u). Some have been admonished, others imprisoned, and in the Commons some have been expelled (a). The unquestionable right of the Lords to commit a peer for words spoken in the House was recognized by the Court of King's Bench in Lord Shaftesbury's case (b). In the House of Commons the disciplinary powers of privilege are reinforced by the summary powers conferred on the chair by Standing Orders Nos.22, 23 and 24 (see p. 427).

8. He has also referred to rules 226 and 258 of the Rules. The former inter alia, provides that a member while speaking shall not discuss any matter which is sub judice and shall not discuss the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties; whereas the latter empowers the Speaker to expunge from the proceedings of the Assembly any speech or part of the speech if he is of the opinion that the words which have been used in debate are defamatory, indecent, unparliamentary or undignified. He has further referred to rules 244 and 245 which empower the Speaker to direct any member to withdraw from the Assembly.

9. On the other hand, Mr. Imam Ali Kazi learned Deputy Attorney- General has relied upon the above Supreme Court case of Islamic Republic of Pakistan v. Mian Mahmood Ali Kasuri and another 1976 SCMR 273 and the above 'ease of the Indian Supreme Court reported in A I R 1965 (Vol. 52) page

745. He has also relied on the following cases: (I) The State v. Zia ur Rahman and others reported in P L D 1973 S C 49. in which the Hon'ble Supreme Court inter alia elaborated the doctrine of trichotomy of powers between the executive the legislature and the Judiciary. (ii) Yaqoob Ali v. Presiding Officer, Summary Military Court, Karachi, P L D 1985 Kar.

243. In the above case in the minority judgment of the Full Bench of the five Judges, inter alia it was observed that Constitution be construed like any other document reading It as a whole and giving every part thereof a meaning consistent with the other. provisions thereof. 10." It seems that it is by now settled position in United Kingdom that the jurisdiction of a House of Parliament over its own internal proceedings is exclusive but the Court claims jurisdiction over the matters of privilege which affect the right of persons exerciseable outside the Parliament. The Hon'ble Supreme Court of Pakistan in the above case of Ahmed Saeed Kirmani P L D 1958 S C Pak. 397 has also taken the view that the High Court is not competent to interfere with the internal proceedings of an assembly as it is within its exclusive jurisdiction. It was also observed by A.R. Cornelius, J. (as he then was) that the whole course of development of representatives institutions in Pakistan during the long period when it was a part of the Sub‑continent and since the commencement of separate existence is a continuation in its broadest aspect of the course of development of such institutions through more than six centuries in the United Kingdom and the position in Pakistan approximates closely to that which obtains , in the Untied Kingdom., It may also be observed that the Indian Supreme Court in the aforesaid special reference A I R 1965 S C 745 has taken the view that the High Court can entertain 6 Constitutional Petition over the matters of Assembly privileges which affect the right of persons exerciseable outside the Assembly. However, at the same time while construing Articles 199 and 211 of the Indian Constitution, it opined that Article 194(2). in terms provides for immunity of action in any Court in respect of speech made by a member or a vote given by him in the legislative assembly; and ever, a breach of Article 211 (which prohibits the legislature of State from discussing the conduct of a Judge of Supreme Court or the High Court in the discharge of his duties) should not give rise to any action and that the Speaker would not permit a member to contravene above Article 211 and but if inadvertently or otherwise a speech within the legislative chamber contravening Article 211 of the Constitution is made, the makers of the Constitution has given protection to such a speech from an action by any Court. There seems to be no judgment of any Superior Court of Pakistani origin on the above point. In the above case of Mian Mahmud Ali Kasuri and another 1976 S C M R 273 the Hon'ble Supreme Court of Pakistan 'had entertained a Petition for contempt under Article 204 of the Constitution against the above two members of the National Assembly who made derogatory remarks about the Supreme Court in their speeches in the National Assembly and had issued show‑cause notices. Though the. show‑cause notices were discharged upon the submission of unconditional apology by. the two members and the question of privilege claimed by them under Articles 66 and 69 of the Constitution was left open for decision in some future case but the factum that a Contempt Petition under Article 204 was entertained by the Supreme Court, a show‑cause notice in pursuance thereof was issued to the two members of the National Assembly and their unconditional apology was accepted for the discharge of the notices, is indicative of the fact that the Supreme Court prima facie found that the petition under Article 204 of the Constitution in respect of speeches made by the members in the National Assembly in contravention of Article 88 of the Constitution could be entertained.

11. Adverting to the I submissions of the learned counsel for the parties and of the learned Deputy Attorney-General and Additional Advocate‑General, we may observe that it may be advantageous to reproduce Articles 66, 68 and 204 of the Constitution which read as 'follows: 66.(l) Subject to the Constitution and to the rules of procedure of Majlis‑e‑Shoora (Parliament)~ there shall be freedom of speech in Majlis‑e‑Shoora (Parliament) and no member shall be liable to any proceedings in any Court in respect of anything said or any vote given by him in Mailis‑e‑Shoora (Parliament), and Ag no person shall be so liable in respect of the publication by or under the authority of Majilis‑e‑Shoora (Parliament) of any report, paper, votes or proceedings. (2) In other respects, the powers, Immunities and , privileges of Majlis‑e‑Shoora (Parliament) and the Immunities and privileges of the members of ‑e‑Shoora (Parliament), shall be such as may from time to time be defined by law and, until so defined, shall be such as were, immediately before the commencing day, enjoyed by the National Assembly of Pakistan and the Committees thereof and its members. (3) Provision may be. made by law for the punishment, by a House evidence or produce documents before a committee of the House when duty required by the chairman of the committee so to do‑ Provided that: any such law (a) may empower a court to punish a person who refuses to give evidence or produce documents‑ and (b) shall have effect Subject to such Order for safeguarding confidential matters from disclosure as may be made by the president. (4) The provisions of this Article shall apply to persons who have the right to speak in, and otherwise to take part in the proceedings of, Majlis‑e‑Shoora (Parliament) as they apply to members. (5) in this Article, Majlis‑e‑Shoora (Parliament) means either House or a joint sitting, or a committee thereof." "

68. No discussion shall take place In Majlis‑e‑Shoora (Parliament) ‑with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties. "204.(l) In this Article, "Court" means the Supreme Court or a High Court. (2) A Court shall have power to punish any person who‑‑ (a) abuses, interferes with or obstructs the process of the Court in any way or disobeys any order of the Court; (b) scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt; (c) does anything which tends to prejudice the determination of a matter pending before the Court; or (d) does any other thing which, by law, constitutes contempt of the Court. (3) The exercise of the power conferred on a Court by this Article may be regulated by law and, subject to law, by rules made by the Court."

12. It may be noticed that Article 66 is couched more or less in the same language as Article 194 of the Indian Constitution reproduced hereinabove but there is difference in phraseology in para 1 thereof. it may further be noticed that clause (1) of Article 66 of the Constitution is pre‑fixed with the expression "Subject to the Constitution and to the rules of procedure of Majlis‑e‑Shoora (Parliament) there shall be freedom of speech in Majlis‑e‑Shoora and no member shall be liable to proceeding in any Court in respect of anything said or any vote given by him in Majlis‑e‑Shoora etc." The other clauses of the above Article 66 provides for other allied subjects on the question of privileges. It may further be noticed that Article 68 prohibits any discussion in Majlis‑e‑Shoora with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties. It may also be noticed that above Article 204 empowers the Court which means the Supreme Court or a High Court to punish any person who, inter alia, scandalizes the Court or otherwise does anything which tends to bring the Court or a Judge of the Court into hatred, ridicule or contempt.

13. We are inclined to hold that we cannot attribute any redundancy to any provision of the Constitution or any part thereof. The provisions of the Constitution are to be construed as to give effect to each and every word thereof. If we were to accept the contentions of Mr. Kamal Azfar the words "Subject to Constitution" appearing in pars, 1 of Article 66 will be rendered redundant/surplusage which will be against the above well‑settled principle of interpretation of a Constitutional' provision and also against the intention of the Framers of the Constitution as the above words were not used in the, corresponding provisions of the late Constitution of 1962, namely, Article 111, but have been deliberately used in the above Article

66. A reasonable construction of above‑quoted Article 156 In conjunction with Articles 68 and 204 will be that the freedom of speech of a member of the Mailis‑e‑Shoora envisaged by pars, 1 of above Article 66 is subject to the Constitution and, therefore, if any of its provision is violated by a speech and for such a violation remedial action can be taken under the Constitution, the same can be availed of ‑ It must, therefore, follow that if a member violates the provision of the Constitution, he is amenable to Article 204 of the constitution However, we may observe that the Court will be reluctant to exercise the power of contempt of Court in respect of a speech made by a member within the four‑walls of Majlis‑e‑Shoora chamber unless there are compelling reasons. There cannot be two opinions that the proper functioning of a Parliament, its members should have freedom of speech uninterfered with by an outside institution but at the same time it cannot be denied that the Judges of the superior Courts cannot discharge their constitutional onerous duties unless they are free from all suits or outside pressures and, therefore, the Constitution Makers thought it fit and proper to incorporate above Articles 68 and 204 for prohibiting any discussion in the Mailis‑e‑Shoora with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties and empowering the Court to take action for contempt. We may observe that a written Constitution like one which we have, contemplates trichotomy of powers between the three organs of the State, namely, the executive, the legislature and the judiciary. They have to act within the bounds specified in the Constitution, any transgression or encroachment by one organ over the sphere of the other will result into chaos and uncertainty. It is therefore, of paramount importance that an equilibrium is to be maintained inter se between the above three organs within the limits prescribed by the Constitution.

14. We are unable to subscribe to the submission made by Mr. Kamal Azfar that since under the rules the Speaker has the power to expunge any speech or any part thereof or to expel a member, the Court cannot take; action under Article: 204 of the Constitution. In our view, the Court cannot be divested of its power conferred on it by the Constitution by framing of rules under Article 67 of the Constitution. Nor his submission that Article 68 is directory and not mandatory in nature seems to be in consonance with the language employed therein, which is of mandatory nature as the words used are "No discussion shall take place in". We may point out that in the above‑cited Indian Supreme Court case of 1965, the Indian Supreme Court repelled the contention that the corresponding Article of Indian Constitution, namely, 211 was directory. However, we are inclined to subscribe to his submission that Article 68 is an exception to the rule of freedom of speech provided in Article 66 and the same is to be construed strictly and unless there is a clear violation of Article 68, no action under Article 204 against a member of the Majlis‑e‑Shoora can be taken in respect of the speech made by him within the four‑walls of the chamber of the Majlis‑e‑Shoora,

15. For the aforesaid reasons our answer to the question referred to hereinabove is that the speeches of the members of the National Assembly enjoy qualified privilege subject to Constitution and are amenable to contempt of Court proceedings under Article 204 as', indicated hereinabove. M.B.A. /K‑58/K Reference answered.