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Judgment
V. Ramasubramanian, J.—The Associate Editor of a Tamil bi-weekly magazine by name ""Nakkeeran"" has come up with the above Writ
Petitions challenging two notices issued by the Privileges Committee of the Tamil Nadu State Legislative Assembly. I have heard Mr. P.T.
Perumal, learned Counsel appearing for the Petitioner, Mr. S. Guru Krishna Kumar, learned Additional Advocate General assisted by Mr. S.
Venkatesh, learned Government Pleader appearing for the Respondent and Mr. A. Navaneethakrishnan, learned Advocate General appearing as
amicus curiae.
In the issue dated January 7.10.2012 of the said Tamil bi-weekly magazine, an article was published at page No. 5 as a cover story with the
front wrapper giving an indication of the story line. In the same issue of the magazine, an article in the form of an interview with the former Deputy
Chief Minister of the State also appeared.
A member of the State Legislative Assembly by name Professor Se. Ku. Tamizharasan submitted a letter dated 17.1.2012 to the Speaker of
the Assembly, bringing these articles to his notice and requesting him to take action against the publications for breach of privilege of the Assembly.
On the basis of the said letter of request, the Speaker referred the articles in question suo motu to the Privileges Committee.
Thereafter, the Petitioner was served with two communications dated 20.1.2012, calling upon the Petitioner to submit his explanations on or
before 27.1.2012. While one communication related to the cover story that appeared at page 5, the other notice related to the interview given to
the magazine by the former Deputy Chief Minister of the State.
Similar notices were also issued to the Editor of the magazine by name Mr. Gopal as well as to Mr. M.K. Stalin, who was the person
interviewed. The Petitioner and the editor of the magazine attempted to enter appearance through Counsel on 27.1.2012 and sought three weeks
time to respond. But, by a Letter dated 28.1.2012, the Respondent informed the Petitioner that a vakalat of a Counsel cannot be accepted and
that the parties may have to either appear in person and give an explanation or submit a written reply. The Petitioner was however granted time till
4.2.2012 to submit a reply.
Immediately upon receipt of the said communication, the Petitioner came up with the above two Writ Petitions challenging both the notices. The
Writ Petitions were admitted on 28.2.2012. Thereafter, the Respondent has filed Counter Affidavits containing a brief indication of the facts that
led to the initiation of proceedings and also the legal parameters on which the validity and maintainability of such Writ Petitions are to be tested.
Therefore, the Writ Petitions were taken up for hearing.
Before I consider the rival contentions, let me take up the question of maintainability of the Writ Petitions. The question of maintainability
revolves around the scope of judicial review. Therefore, let us see the same at the outset.
The march of law on the scope of judicial review of the exercise of legislative privilege, will be a matter of interest to a student of law, as the
path was strewn with both roses and thorns. One of the earliest cases that came up before the Supreme Court in this regard, was the one in
M.S.M. Sharma Vs. Sri Krishna Sinha and Others, which came to be known popularly as ""Searchlight-I"" case. In that case, the Editor of an
English newspaper challenged before the Supreme Court under Article 32 of the Constitution, a notice of breach of privilege issued by the
Secretary to the Bihar Legislative Assembly.
The primary contention raised in the said Writ Petition was that the proposed action by the Committee of Privileges was in violation of his
fundamental right to freedom of speech and expression guaranteed under Article 19(1)(a) and to the protection of his personal liberty guaranteed
under Article 21. Another question raised was as to whether by virtue of Article 194(3) of the Constitution, the Indian Parliament and the State
Legislatures have the powers, privileges and immunities enjoyed by the House of Commons of British Parliament and as to whether those powers,
privileges and immunities would prevail over the freedom of speech and expression guaranteed by the Constitution.
In respect of the latter, the Supreme Court held that until the Parliament or the State Legislature made a law defining the powers, privileges and
immunities of the House, its Members and Committees, they shall have all the powers, privileges and immunities of the House of Commons as at
the date of commencement of our Constitution. The Court also found after referring to various precedents that the House of Commons had, at the
time of commencement of our Constitution, the power or privilege of prohibiting the publication of even a true and faithful report of the debates or
the proceedings that take place within the House. Consequently, the House was held to have the power or privilege of prohibiting the publication
of an inaccurate or garbled version of such debates or proceeding.
On the first question, the Court held that the provisions of Article 19(1)(a), which are general, must yield to Article 194(1) and the latter part of
its Clause (3), which are special. On the question relating to Article 21, the majority held that the deprivation of the personal liberty of the
Petitioner, as a result of the proceeding before the Committee of Privileges, in accordance with the Rules framed by the Legislative Assembly,
would be a deprivation in accordance with the procedure established by law.
Incidentally, it must be noted that in Searchlight-I, the Writ Petitioner raised a question of fact by contending that the expunged portions of the
proceedings of the assembly were never published by him. While dealing with the said contention, the majority held in paragraph 34 (of the report)
that it must be left to the House itself to determine whether there has, in fact, been any breach of privilege or not. This assumes significance in the
light of the fact that what was challenged in Searchlight-I was also only a notice of breach of privilege issued by the Committee of Privileges, as it is
in the present case.
After the decision of the Supreme Court in Searchlight-I, the assembly was prorogued several times, as a result of which a fresh notice had to
be issued by a newly constituted Committee of Privileges. Challenging the fresh notice, a second Writ Petition under Article 32 was filed and this
case came to be known as Searchlight-II In Searchlight-II, the Writ Petitioner raised few additional issues apart from those raised in the first
instance.
After warding off the attempt to re-agitate the questions already decided in Searchlight-I, by applying the Principle of res judicata, the Court
took up for consideration the subsidiary questions from paragraph 10 onwards. One of the subsidiary contentions raised in Searchlight-II was that
the procedure adopted by the House of Legislature was not in accordance with law. The said contention was rejected by the Supreme Court with
three answers Pandit M.S.M. Sharma Vs. Dr. Shree Krishna Sinha and Others, . They are;
(i) that since the Petitioner had no fundamental right, he was out of Court;
(ii) that the validity of the proceedings inside the Legislature of a State cannot be called in question on the ground that the procedure laid down by
law had not been followed and that Article 212 is a complete answer to the Petitioner; and
(iii) that since the Petitioner had come to Court challenging a show cause notice issued by the Committee of Privileges, it was as yet premature to
consider the question of procedure, as the Committee was yet to conclude the proceedings.
While giving the above three answers, the Supreme Court pointed out that the Legislature is vested with complete jurisdiction to carry on its
proceedings in accordance with its Rules of business and that even if the procedural requirements for conducting its business had not been strictly
followed by the Legislature, it cannot be a ground for interference by the Court.
After Searchlight-II came, the presidential reference in In the matter of: Under Article 143 of the Constitution of India, under extraordinary
circumstances. While dealing with the vexed question relating to the powers and privileges of the House under Article 194 vis-a-vis the
fundamental rights of citizens, the majority pointed out in paragraph 40 of the report that though our Legislatures have plenary powers, they
function within the limits prescribed by the material and relevant provisions of the Constitution. Since the Legislatures, Ministers and Judges all take
oath of allegiance to The Constitution, the sovereignty which can be claimed by the Parliament in England cannot be claimed by any Legislature in
India in the literal and absolute sense.
After Keshav Singh came, the decision in Raja Ram Pal Vs. The Hon''ble Speaker, Lok Sabha and Others, This case which came to be
popularly known as ""cash for query"" case, was filed by the Members of Parliament, who were expelled from Parliament Primarily, three questions
were taken up for consideration by the Supreme Court in Raja Ram Pal. They were:
(i) Whether the Supreme Court has the jurisdiction to decide the content and scope of powers, privileges and immunities of the Legislatures and its
Members?
(ii) Whether the powers and privileges of the Legislatures in India include the power of expulsion of its Members, in the light of Article 105 of The
Constitution? and
(iii) Whether the Supreme Court has jurisdiction to interfere in the exercise of such power or privilege?
After holding that the Parliament is a coordinate organ and its views do deserve deference, the Supreme Court pointed out that its acts are
amenable to judicial scrutiny. But on the scope of its jurisdiction, the Court held that although the British House of Commons had a broad doctrine
of exclusive cognizance of its internal proceedings, the said principle was displaced in India by Articles 122(1) & 212(1). Eventually, the Court
gave the summary of the principles relating to the parameters of judicial review, in paragraph 431 (of the report). Since all contentions that could
be raised by all parties in many cases of this nature may necessarily have to fall within anyone or more of these parameters, paragraph 431 is
extracted as follows:
(a) Parliament is a coordinate organ and its views do deserve deference even while its acts are amenable to judicial scrutiny;
(b) The Constitutional system of Government abhors absolutism and it being the cardinal principle of our Constitution that no one, howsoever lofty,
can claim to be the sole judge of the power given under the Constitution, mere coordinate Constitutional status, or even the status of an exalted
Constitutional functionaries, does not disentitle this Court from exercising its jurisdiction of judicial review of actions which partake the character of
judicial or quasi-judicial decision;
(c) The expediency and necessity of exercise of power or privilege by the legislature are for the determination of the legislative authority and not for
determination by the Courts;
(d) The judicial review of the manner of exercise of power of contempt or privilege does not mean the said jurisdiction is being usurped by the
judicature;
(e) Having regard to the importance of the functions discharged by the legislature under the Constitution and the majesty and grandeur of its task,
there would always be an initial presumption that the powers, privileges, etc. have been regularly and reasonably exercised, not violating the law or
the Constitutional provisions, this presumption being a rebuttable one;
(f) The fact that Parliament is an august body of coordinate Constitutional position does not mean that there can be no judicially manageable
standards to review exercise of its power;
(g) While the area of powers, privileges and immunities of the legislature being exceptional and extraordinary its acts, particularly relating to
exercise thereof, ought not to be tested on the traditional parameters of judicial review in the same manner as an ordinary administrative action
would be tested, and the Court would confine itself to the acknowledged parameters of judicial review and within the judicially discoverable and
manageable standards, there is no foundation to the plea that a legislative body cannot be attributed jurisdictional error;
(h) The judicature is not prevented from scrutinising the validity of the action of the legislature trespassing of fundamental rights or the Constitutional
provisions is not correct;
(i) The broad contention that the exercise of privileges by legislatures cannot be decided against the touchstone of fundamental rights or the
Constitutional provisions is not correct;
(j) If a citizen, whether a non-Member or a Member of the legislature, complains that his fundamental rights under Article 20 or 21 had been
contravened, it is the duty of this Court to examine the merits of the said contention, especially when the impugned action entails Civil
consequences;
(k) There is no basis to the claim of bar of exclusive cognizance or absolute immunity to the Parliamentary proceedings in Article 105(3) of the
Constitution;
(l) The manner of enforcement of privilege by the legislature can result in judicial scrutiny, though subject to the restrictions contained in the other
Constitutional provisions, for example Article 122 or 212;
(m) Article 122(1) and Article 212(1) displace the broad Doctrine of Exclusive Cognizance of the legislature in England of exclusive cognizance of
internal proceedings of the House rendering irrelevant the case-law that emanated from Courts in that jurisdiction; inasmuch as the same has no
application to the system of governance provided by the Constitution of India;
(n) Article 122(1) and Article 212(1) prohibit the validity of any proceedings in legislature from being called in question in a Court merely on the
ground of irregularity of procedure;
(o) The truth or correctness of the material will not be questioned by the Court nor will it go into the adequacy of the material or substitute its
opinion for that of the legislature;
(p) Ordinarily, the legislature, as a body, cannot be accused of having acted for an extraneous purpose or being actuated by caprice or mala fide
intention, and the Court will not lightly presume abuse or misuse, giving allowance for the fact that the legislature is the best judge of such matters,
but if in a given case, the allegations to such effect are made, the Court may examine the validity of the said contention, the onus on the person
alleging being extremely heavy;
(q) The rules which the legislature has to make for regulating its procedure and the conduct of its business have to be subject to the provisions of
the Constitution;
(r) Mere availability of the Rules of Procedure and Conduct of Business, as made by the legislature in exercise of enabling powers under the
Constitution, is never a guarantee that they have been duly followed;
(s) The proceedings which may be tainted on account of substantive or gross illegality or unconstitutionality are not protected from judicial scrutiny;
(t) Even if some of the material on which the action is taken is found to be irrelevant, the Court would still not interfere so long as there is some
relevant material sustaining the action;
(u) An ouster clause attaching finality to a determination does ordinarily oust the power of the Court to review the decision but not on grounds of
lack of jurisdiction or it being a nullity for some reason such as gross illegality, irrationality, violation of Constitutional mandate, mala fides, non-
compliance with Rules of Natural Justice and perversity.
After Raja Ram Pal came, the case of Amarinder Singh Vs. Special Committee, Punjab Vidhan Sabha and Others, , who was the Chief
Minister of the State of Punjab during the 12th term of the Punjab Vidhan Sabha. He was also a duly elected Member of Vidhan Sabha for its
13th term. On 10.9.2008, the Punjab Vidhan Sabha passed a resolution for the expulsion of Amarinder Singh for the remainder of the 13th term,
on the ground that he was guilty of Criminal Misconduct in the matter of grant of exemption for a vacant plot of land notified for acquisition by
Amritsar Land Improvement Trust for a development scheme. The resolution of the House was challenged by Amarinder Singh before the High
Court. Though the High Court ordered notice, no interim stay was granted. Therefore, he filed a Special Leave Petition, which was referred to a
Three-Member Bench. Later, the case was taken up by a Constitution Bench. Three questions were taken up for consideration in that case, as
seen from paragraph 23 of the report. They were:
(i) Whether the alleged misconduct on the part of the Appellant warranted the exercise of legislative privileges under Article 194(3) of The
Constitution?
(ii) Whether it was proper for the Vidhan Sabha to take up as a matter of breach of privilege, an incident that occurred during its previous term?
and
(iii) Whether the acts of Punjab Vidhan Sabha violated the norms that should be respected in relation to subjudice matters.
While dealing with the first question, the Court pointed out in paragraph 36 of the report that legislative privileges serve a distinct purpose and
that they are exercised to safeguard the integrity of legislative functions against obstructions that could be caused both by the Members as well as
by the non-Members. Again, the Court pointed out in paragraph 47 that such privileges can be exercised even to protect persons engaged as
administrative employees and that the important consideration for scrutinizing the exercise of legislative privileges is whether the same was
necessary or not to safeguard the integrity of legislative functions.
After extracting the parameters laid down in paragraph 431 of the decision in Raja Ram Pal, the Court expressed the following opinion in
paragraphs 54 & 55:
(i) That though Courts cannot inquire into matters relating to irregularities in the observance of procedures before the Legislature, the Courts can
always examine whether the proceedings conducted under Article 105(3) or 194(3) are tainted on account of substantive or gross irregularity or
unconstitutionality;
(ii) That the actions of the Legislature in the ordinary course of events do deserve due deference; and
(iii) That the threshold for exercising judicial review in a case of that nature was indeed very high and that the Court must begin with a presumption
that the Legislature''s actions were valid.
Therefore, it is clear that though I cannot exercise power of judicial review under Article 226 on a mere procedural irregularity in the initiation
of proceedings by the Committee of Privileges, I can certainly examine whether the impugned proceedings are tainted on account of substantive or
gross irregularity or unconstitutionality. Keeping this fundamental principle in mind, if we have a look at the grounds on which the Petitioner has
come up with the above Writ Petitions, it is seen that the primary contentions of the Petitioner are two, namely-
(i) That the impugned proceedings have been initiated without any application of mind to the question as to whether the Petitioner had anything to
do either with the cover story or with the interview of the former Deputy Chief Minister of the State; and
(ii) That at any rate, u/s 7 of the Press and Registration of Books Act, 1867, the publishers of the magazine have filed a declaration, naming the
Editor of the magazine alone as responsible for whatever was published and hence an Associate Editor, who was not named there in cannot be
proceeded against.
In so far as the First Contention is concerned, I do not think that the answer is far too difficult to seek. The question as to whether the
Petitioner was associated with any or both of the two articles that have become the subject matter of controversy, is broadly a question of fact.
Even in normal cases, a Court exercising jurisdiction under Article 226 will not go into such questions of fact. In this case, the Petitioner has come
even at the threshold, namely upon receipt of a notice from the Committee of Privileges. Therefore, I am obliged, in the Constitutional scheme of
things, to leave it to the Petitioner to establish before the Privileges Committee itself, that he was not associated or involved with any of the two
articles in question as I cannot and am not supposed to, record a finding of fact.
The second contention raised by the Petitioner is of interest, in view of the fact that it has arisen for consideration, for the first time.
The Press and Registration of Books Act, 1867, which is a colonial legislation, was enacted actually for an entirely different purpose. The
Statement of Objects and Reasons shows that the makers of the law projected a different purpose, namely that of collection and preservation of
important and interesting works published in India. The Royal Asiatic Society in London instigated the Secretary of State for India to instruct the
Directors of the East India Company to acquire copies of important and interesting works published in India and send them to England to be kept
in the library of the India House. The Statement of Objects and Reasons proclaimed that the literature of a country is an index of the opinions and
condition of the people and that such an index is essential to good governance. The statement also declared that such a collection is in the interest
not only of history, but also of the scholars of Europe.
But, there was obviously a hidden agenda behind this Act (despite which free India has retained this colonial enactment). This is why Section 4
of the Act mandated that no person shall, within India, keep in his possession, any press for the printing of books or papers, if he had not made
and subscribed to a declaration in the prescribed format, before the District, Presidency or Sub-Divisional Magistrate, within whose local
jurisdiction the press was located. Section 4 also conferred powers upon the Magistrate to cancel a declaration, thereby making the publication
unlawful in terms of Section 4(1).
Similarly, Section 5 prescribed a set of rules, except in conformity with which no newspaper shall be published.
Part (4) of the Act contained several penal provisions, for violation of the provisions of Sections 3, 4, 8, 9 & 11. Section 17 provides for
recovery of forfeitures and disposal thereof.
Section 7 of the Act on which reliance is placed by the learned Counsel for the Petitioner reads as follows:
Office copy of declaration to be prima facie evidence.--In any legal proceeding whatever, Civil as well as Criminal, the production of a copy of
such declaration as is aforesaid, attested by the seal of some Court empowered by this Act to have the custody of such declaration, or, in the case
of the editor, a copy of the newspaper containing his name printed on it as that of the editor shall be held (unless the contrary be proved) to be
sufficient evidence, as against the person whose name shall be subscribed to such declaration, or printed on such newspaper, as the case may be
that the said person was printer or publisher, or printer and publisher (according as the words of the said declaration may be) of every portion of
every newspaper whereof the title shall correspond with the title of the newspaper mentioned in the declaration or the Editor of every portion of
that issue of the newspaper of which a copy is produced.
A reading of Section 7 shows that the purpose of the said provision is to create a presumption that the person whose name is printed on the
newspaper as that of its Editor, shall be deemed to be the Editor of such newspaper. It is no doubt a rebuttable presumption.
The above presumption was originally made available in the Act, only in cases where a copy of the declaration attested by the seal of a Court
empowered by the Act to have custody of the declaration, is produced. But by an amendment Act 14 of 1922, the scope of the said presumption
was enlarged. Now the presumption is available once a copy of the newspaper containing the name of the editor is produced.
But, the first part of Section 7 makes it clear that the presumption indicated in the Section will be raised only in ""any legal proceeding whatever,
Civil as well as Criminal"". Therefore, two questions arise for consideration, namely, (i) as to whether the proceedings initiated by the Assembly for
the breach of its privilege is a ''legal proceeding'' within the meaning of Section 7 of the Act; and (ii) assuming that it is so, whether Section 7
creates an immunity for those whose names are not found in the copy of the newspaper as its editor.
The expression ""legal proceedings"" is defined in Black''s Law Dictionary (Ninth edition) in the following words:
Any proceeding authorised by law and instituted in a Court or Tribunal to acquire a right or to enforce a remedy.
A proceeding for breach of privilege before the House of a Legislature, may be a proceeding authorised by law. But it is not instituted in a Court or
Tribunal. In any case, it is not for acquiring a right or enforcing a remedy. It is true that in some cases, the Courts have given a wider interpretation
to the expression ""legal proceedings"". But it must be examined whether the such a course is permissible in respect of proceedings before the
Legislative Assembly.
In Assistant Collector of Central Excise, Guntur Vs. Ramdev Tobacco Company, , the Supreme Court was concerned with the scope of
Section 40 of the Central Excise and Salt Act, 1944, which barred a Suit, prosecution or other legal proceedings from being instituted in respect of
anything, after the expiration of six months from the accrual of the cause of action. The question arose in the context of a show cause notice issued
under the Act for the imposition of penalty, after the expiry of a period of six months from the accrual of the cause of action. Therefore, the
Supreme Court was ordained to consider the question whether the issuance of a show cause notice and the initiation of consequential adjudication
proceedings under the Central Excise and Salt Act, 1944 could be described as ""other legal proceedings"" within the meaning of Section 40(2) of
the Act. Allowing the Appeal of the Assistant Collector of Central Excise and setting aside the order of the High Court quashing the show cause
notice, the Supreme Court held in paragraph 5 of the said decision that the Rule of ejusdem generis is generally invoked where the scope and
ambit of general words which follow certain specific words, are required to be determined.
If the said Rule is applied to Section 7 of the Press and Registration of Books Act, 1867, it would be clear that the expression ""any legal
proceedings whatever"" is followed by the words ""Civil as well as Criminal"". Therefore, the meaning to be assigned to the expression ""legal
proceedings"" should follow the Rule of ejusdem generis. In paragraph 6 of the decision in Ram Dev Tobacco Co., the Supreme Court pointed out
that there can be no doubt that the Suit or prosecution are those judicial or legal proceedings which are lodged in a Court of law and not before
any executive authority even if a statutory one. Therefore, the proceeding before the House of Legislature cannot be considered to be a legal
proceeding, Civil or Criminal, within the meaning of Section 7 of the Press and Registration of Books Act.
It is no doubt true that by using the expression ""whatever"", together with the expression ""legal proceeding"", a wide amplitude is given to the
expression ""legal proceeding"" contained in Section 7 of the Act. But, a proceeding for breach of privilege cannot be taken to be a legal proceeding
within the meaning of Section 7 of the Press and Registration of Books Act for one more reason. A careful scrutiny of Articles 194 to 212 of the
Constitution shows that the proceedings inside the Legislature of a State cannot be construed as legal proceedings. As a matter of fact, Article
194(2) gives immunity to a member of the Legislature of the State from any proceedings in any Court in respect of anything said or any vote given
by him in the Legislature or any Committee thereof. Therefore, the expression "" legal proceeding"" used in Section 7 of the Act may not include a
proceeding within the House of the Legislature.
In P.L. Kanta Rao v. State of Andhra Pradesh, the Supreme Court pointed out that the interpretation of the word ""proceeding"" would depend
both upon the scope of the enactment and upon the question whether the expression is used with reference to a particular context where it occurs.
It may mean a course of action for enforcing a legal right. Article 194(2) itself uses the expression ""proceedings"".
The meaning to be assigned to the expression ""legal proceeding"" appearing in Section 7 of the Act, should be confined only to those
proceedings before Courts of law, Tribunals or adjudicating bodies, but not to the proceedings before the Legislature of a State, since they are not
for acquiring any right or enforcing a remedy. Therefore, the presumption raised in Section 7 cannot be pressed into service in respect of a
proceeding before the Legislature of a State.
I am conscious of the fact that there is a possibility to contend that the proceedings initiated by a House against one of its members is different
from the proceedings initiated by a House against a third party and that at least those proceedings against third parties could be construed as legal
proceedings. Let me assume for a minute that such a fine distinction does exist. If it actually exists, the next question that falls for consideration is as
to whether the presumption raised u/s 7 can extend even to the proceedings before the House of a Legislature. In order to find an answer to the
above question, it is necessary to take note of several such enactments whether there are similar provisions.
An illustrative, but not exhaustive list of such enactments is as follows:
(A) Section 2(n) of the Factories Act, 1948, defines the expression "" occupier of a factory"". In order to restrict the liability under the Act to named
persons, Section 7(1) of the Act entitles the occupier of a factory to send a written notice to the Chief Inspector, indicating the name and address
of the Manager.
(B) Section 5 of the Companies Act, 1956 defines the term ""officer who is in default"". Though the term ""officer who is in default"" is defined to
include several persons u/s 5 of the Companies Act, the Proviso to Section 5 makes it clear that the person so charged should have given his
consent in this behalf to the Board. Alternatively, Clause (g) of Section 5 empowers the Board to name a person and file a return with the Registrar
in the prescribed format within 30 days. But, a careful survey of the provisions of the Companies Act would show that the penal liability with
respect to normal routine matters alone is placed on ""officer who is in default"". For example u/s 142 of the Companies Act, the officer who is in
default is made liable for punishment, if a default is made in filing with the Registrar, the particulars relating to any charge created by the Company.
Similarly, the penalties under Sections 162, 168, 218, 232, etc., fall upon ""officers who are in default"". But, there are certain provisions even in the
Companies Act, 1956 which make several other persons (other than those named as officers in default) responsible for penal consequences. For
instance, Section 59 makes every person, who is a party to any prospectus issued in contravention of Sections 57 & 58, liable for prosecution.
Section 63 also contains a similar provision.
(C) Section 7(1) of the Factories Act, 1948 enables the occupier of a factory to issue a notice to the Chief Inspector, indicating the name of the
Manager of the factory for the purpose of the Act. The Manager so named is included in the definition of the word ""employer"" appearing in Section
2(e) of the Employees'' Provident Funds and Miscellaneous Provisions Act, 1952.
Thus, there are several enactments which enable corporate entities to file declarations or notifications indicating the name of the person or the
designation of the person, who shall be held responsible for all penal consequences in relation to every act of commission and omission committed
by the Company. Such provisions serve two purposes. They are:
(i) They proclaim to the whole world the name and designation of the person, who can be proceeded against, in the event of any act of omission
and commission; and
(ii) They also protect persons who are otherwise connected with the Company, but who do not take part in the day-to-day affairs and activities.
But as I have pointed out earlier, such fixation of responsibility, Civil and/or Criminal, under each enactment, is always confined only to the
particular enactment under which a declaration or Notification of the above nature is to be made or filed.
In other words, a return filed with the Registrar of Companies in terms of Section 5 of the Companies Act, indicating the name of the officer,
who is in default, may protect all the other Directors and other officers of the Company against any prosecution under the Companies Act, 1956.
But the return so filed before the Registrar of Companies would not protect others against any prosecution under the Factories Act, 1948, unless
such a person is also notified as the Manager in terms of Section 7(1)(f) of the Factories Act. To put it differently, the concession given under each
enactment to fix responsibility upon one officer named either as ""occupier"" or as ""manager"" or as ""officer who is in default"" would not extend to
other enactments. Hence, the fact that one Mr. Gopal has been named as the Editor of the magazine in terms of Section 7 of the Press and
Registration of Books Act, may save all others from any penal consequences under the Press Act and perhaps also under the Indian Penal Code.
But the same would not save the other officers from any Civil or penal liability under other enactments. The declaration filed u/s 7 cannot be taken
to be a general amnesty for all others, extending beyond the purview of the Press and Registration of Books Act, 1867. Therefore, the second
contention of the learned Counsel for the Petitioner is also bound to fail.
The learned Counsel for the Petitioner relied upon the decision In Re: G. Alavandar, to highlight the object of Section 3 of the Press and
Registration of Books Act, 1867, which requires the name of the printer and publisher to be printed on every book or paper. He also relied upon
two decisions of the Supreme Court, one in the State of Maharashtra Vs. Dr. R.B. Chowdhary and Others, and another in K.M. Mathew Vs.
State of Kerala and another, .
The decision In Re: G. Alavandar, , arose out of the conviction of the keeper of a press known as Janasakthi, for his failure to print the name
of the printer and the publisher, on two pamphlets printed in his press. While dismissing the revision arising out of conviction, this Court pointed out
the intention behind Section 3.
In the State of Maharashtra Vs. Dr. R.B. Chowdhary and Others, , a Complaint u/s 500, I.P.C. was filed against the members of the Editorial
Board of a Marathi weekly. Therefore, a question arose as to whether the members of the Editorial Board other than the editor can be prosecuted
for the defamatory article. It is in that context that the Supreme Court placed reliance upon Section 7 of the Press and Registration of the Books
Act to confine the prosecution only to person named as editor.
The decision in Dr. R.B. Chowdhary was followed in K.M. Mathew. But the Court also clarified in K.M. Mathew that the presumption u/s 7
is a rebuttable presumption.
Once it is seen that what is provided by Section 7 is only a presumption and not an absolute protection, it follows as a corollary that the
question raised by the Petitioner would be a mixed question of fact and law. In other words, if a person wants to take advantage of a presumption,
on the basis of the indication contained in the magazine itself, it is axiomatic that the opposite party will be entitled to rebut the presumption. Such
rebuttal can take place only on a factual foundation. If it can be done only on a factual foundation, the opportunity to do so cannot be deprived to
the other party who wishes to dislodge the presumption.
Merely because the notices issued by the Committee of Privileges do not contain any factual foundation for rebutting the presumption arising
u/s 7, it cannot be concluded that the initiation of proceedings itself would amount to gross illegality or unconstitutionality. The law of pleadings as
contained in the Code or the rules of evidence as contained in the Evidence Act would not apply stricto sensu to the proceedings before the
Legislative Assembly or the Committee of Privileges. Therefore, the Petitioner cannot contend that in the absence of any factual detail connecting
him to the articles in question, Section 7 would afford an absolute immunity to him.
The learned Counsel for the Petitioner also relied upon the decision of the Full Bench of this Court in S. Balasubramanian Vs. State of Tamil
Nadu and others, a judgment of the Division Bench of this Court in D. Murugesan Vs. The Hon''ble Speaker (Thiru Sedapatti R. Muthiah) Tamil
Nadu Legislative Assembly, the decision of the Full Bench in A.M. Paulraj Vs. The Speaker, Tamil Nadu Legislative Assembly, Madras and
Another, and the decision of a Division Bench of the Assam High Court in Harendra Nath Barua Vs. Dev Kanta Barua and Others I do not think
that there is any necessity to delve deep into the ratio laid down in the above decisions, as the decision of the Supreme Court in Raja Ram Pal has
already crystallized all the parameters to be applied in such cases. Therefore, I am of the view that there is no scope for interference with the
impugned notices, especially at this stage and that both the grounds on which the Petitioner seeks to challenge the impugned notices, cannot be
countenanced.
Therefore, both the Writ Petitions are dismissed. No costs.