Page 1

1

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL  JURISDICTION

WRIT PETITION (CIVIL) NO.504 OF 2015

Justice (Retd.) Markandey Katju      ……Petitioner

Versus

The Lok Sabha & Anr.                        …. Respondents

  JUDGMENT  

Uday Umesh Lalit J.

1. This petition under Article 32 seeks quashing 7.   of Resolution dated 11.03.2015 passed by Rajya Sabha and Resolution

dated 12.03.2015 passed by Lok Sabha.  In the alternative, it is also

prayed  that  the  Houses  of  Parliament  be  directed  to  give  to  the

petitioner post decisional hearing.

2. On  10.03.2015,  the  petitioner,  a  former  Judge  of  this  Court

published a post on his Facebook Page in respect of Mahatma Gandhi,

Father  of  the  Nation.   The  post  was  entitled  “Gandhi  –  A British

Page 2

2

Agent” and stated that Mahatma Gandhi did great harm to India. On

the same date,  another post  was published by the petitioner on his

Facebook Page in respect of Netaji Subhash Chandra Bose referring to

him as an agent of Japanese fascism.  

3. These  posts  evoked  immediate  response  and  on  11.03.2015,

discussion took place in Rajya Sabha.  At the end of the discussion, a

Resolution was moved by the Chairman of Rajya Sabha which was

passed  unanimously  by  the  House.   The  Resolution  was  to  the

following effect :- “This House expresses its unequivocal condemnation of the recent remarks of the former judge of the Supreme Court, Shri Justice Markandey Katju, against the Father of  the  Nation  Mahatma  Gandhi  and  Netaji  Subhash Chandra  Bose  led  the  Indian  National  Army  for  the freedom of the country.  

4.   On the next  day, discussion also  took place  in  Lok Sabha

whereafter  the  following  Resolution  was  passed  by  Lok  Sabha on

12.03.2015:- “Father of the Nation Mahatma Gandhi and Netaji Shri Subhash Chandra Bose both are venerated by the entire country.  The  contribution  of  these  two  great personalities to the freedom struggle of the country and their dedication is unparalleld.  The statement given by the  former  Judge  of  Supreme  Court  and  former Chairman  of  Press  Council  of  India  Shri  Markandey Katju  is  deplorable.   This  House  unequivocally condemns  the  statement  given  by  former  Judge  of Supreme Court Shri Markandey Katju unanimously.”

Page 3

3

5. On  23.03.2015,  the  petitioner  sent  e-mails  to  the  Chairman,

Rajya  Sabha  and  to  the  Speaker,  Lok  Sabha  that  the  aforesaid

Resolutions  condemning  his  statements  on  Mahatma  Gandhi  and

Netaji Subhash Chandra Bose were passed by Rajya Sabha and Lok

Sabha without giving him any opportunity of hearing and that rules of

Natural Justice required that he should have been given an opportunity

of hearing.  The petitioner, therefore, stated:- “I therefore request both Houses of Parliament, through you,  to  recall  the resolutions  and apologize to  me,  or else  to  suspend  the  resolutions  and  give  me  an opportunity of hearing, personally or through my lawyer.

6. Since the petitioner did not receive any response from either the

Chairman, Rajya Sabha or the Speaker, Lok Sabha, he has filed the

present petition.  The petition states that it does not seek any relief

against any Member of Parliament individually but the Resolutions in

question do not fulfill jurisdictional requirement, and that whether the

statements  are  deplorable  or  condemnable  can  be  judged  only  by

bodies performing judicial function and cannot be decided by Rajya

Sabha or Lok Sabha. The petition prays for quashing of the aforesaid

Resolutions. On  03.08.2015,  this  Court  while  granting  fuller

opportunity to  the  petitioner  to  make submissions  on the points  in

question, requested Mr. Fali S. Nariman, Senior Advocate to assist this

Page 4

4

Court  as  Amicus  Curiae  and  also  requested  Mr.  Mukul  Rohatgi,

Attorney General to appear and make his submissions.  

7.   A written note was filed on behalf of the petitioner framing

certain  questions  and  making submissions  in  respect  thereto.   The

questions so framed and the gist of the submissions are:- “I.   Does  Article  19(1)(a)  of  the  Constitution  of  India guarantee an individual the freedom to hold and publicly express dissenting opinions?

…..  it  is  submitted  that  Article  19(1)(a)  of  the Constitution  of  India  guarantees  to  an  individual  the freedom to hold and publicly express dissenting opinions without fear of any form. It is the duty of the Legislature to respect and promote respect for such a right and not to curtail the same, either by enacting legislations that run contrary  to  Article  19(2)  or  to  pass  a  resolution, condemning the exercise of such free speech.  

II.  Whether Parliament  can in the absence of a ‘law’ framed under Article 19(2) of the  Constitution of India exercise  jurisdiction  over  an  individual  and  express disapproval for the opinions expressed by him or her?

…..It  is  submitted  that  in  exercise  of  privilege,  the petitioner’s publications and comments could be subject matter of discussion in Parliament, as Parliament is free to  discuss  any  matter.  However,  it  is  not  open  to Parliament to condemn the petitioner and his remarks as doing  such  an  act  is  not  in  aid  of  functioning  of Parliament….

…..In exercise of its powers, Parliament can imprison, admonish or reprimand a “stranger” only when doing so is necessary for functioning of the House. It is submitted that  condemnation  or  disapproval  is  synonymous  with admonishing or reprimanding an individual…..

Page 5

5

…..A  “stranger”  who  makes  a  speech  outside  the house, especially not connected with the functioning of Parliament and not derogatory to Parliament, could not be taken notice of by Parliament to punish him…..

III.  Whether  the  privilege  under  Article  105(1)  of  the Constitution is intended to secure freedom of expression within Parliament or can it be exercised for the purpose of  silencing  dissenting  opinions  which  are  a  part  of fundamentally guaranteed freedoms under Article 19(1) (a) of the Constitution?

…..Therefore,  when  Parliament  is  claiming  a privilege, what is to be considered is whether Parliament is  claiming the privilege in  respect  of  an act  which is fundamental to its functioning. Unless the answer is in affirmative, the claim of privilege is to be disallowed…..

…..The power available with the House to deal with a stranger is only in relation to contempt of the House and where  the  act  complained  of  interferes  with  the functioning of the House…..

…..At this present stage, it is necessary to point out that  there  is  no  evidence  on  record  or  otherwise  to suggest that the remarks of the petitioner in the present case affected the functioning or the reputation of either House of Parliament. Thus, the very initiation of action against the individual petitioner is without jurisdiction. In fact, even the text of the resolution is silent on the said aspect…..

IV. Whether either House of Parliament could condemn any individual or his expression of his speech; when such individuals were not discharging duties in public capacity and  where  the  speech  does  not  interfere  with  the functioning of Parliament.

Page 6

6

The impugned resolutions passed by the Lok Sabha and Rajya  Sabha condemn certain statements  made by the  petitioner,  who  is  a  retired  judge  of  the  Supreme Court,  and  former  Chairman  of  the  Press  Council  of India,  purely  in  his  private  capacity.  Further,  the resolutions  were  passed  the  very  next  day  after  the aforesaid  statements  were  made  public  without  even giving  the  petitioner  an  opportunity  to  present  his response to either of the House and without taking into consideration  the  entire  analysis  of  the  petitioner including  the  underlying  literature  and  viewpoints  of various scholars…..

…..Keeping in mind that the above rules stem from an express  provision of  the  Constitution,  and further,  that these  Rules  are  subject  to  the  mandate  of  the Constitution, the import of the above extracted rules, may be summarized as follow: First, the subject matter of the resolution being moved must be one of the general public interest.  Second,  a  resolution  condemn  can  only  be directed at an act of Government.  Third, the resolution shall  not  contain  arguments,  inferences,  ironical expressions,  imputations  or  defamatory  statements. Fourth, it shall  not refer to the conduct or character of persons except in their official or public capacity.  Fifth, the  required  notice  period  of  two  days  has  not  been complied with….

V.  In  the  event  Parliament  did  have  the  requisite jurisdiction,  could  it  have  passed  a  resolution  without giving an opportunity of hearing to the petitioner?”

……Assuming but not conceding that Parliament did have  the  requisite  jurisdiction,  a  resolution  could  not have  been  passed  condemning  the  petitioner’s  views without even giving an opportunity of hearing and taking into  consideration  the  entire  material  before  reaching such an adverse conclusion…..”

Page 7

7

8.   Mr. F. S. Nariman, learned Amicus Curiae placed on record a brief

note of submissions, submitting inter alia:- “It  is  respectfully  submitted  that  the  questions

raised  in  the  petition  are  no  longer  res  integra.  They stand  concluded  by  a  decision  of  this  Hon’ble  Court reported  in  1970  (2)  SCC  272  (Bench  of  6  Hon’ble Judges)-upholding a full  Bench decision (of  5 Hon’ble Judges)  of  the  High  Court  of  Delhi;  (reported  in  AIR 1971 Delhi 86)- and declaring (in paragraph 8)1 :-

“The Article (105) confers immunity inter alia in respect of “anything said……. in Parliament”. The word ‘anything’ is  of  the widest  import  and is  equivalent  to ‘everything’. The only limitation arises from the words ‘in  Parliament’  which  means  during  the  sitting  of Parliament  and  in  the  course  of  the  business  of Parliament. We are concerned only with speeches in Lok Sabha.  Once it  was proved that  parliament  was  sitting and  its  business  was  being  transacted,  anything  said during  the  course  of  that  business  was  immune  from proceedings  in  any  Court,  this  immunity  is  not  only complete but is  as it  should be. It  is  of the essence of parliamentary  system  of  Government  that  people’s representatives  should  be  free  to  express  themselves without  fear  of  legal  consequences.  What  they  said  is only subject to the discipline of the rules of Parliament, the  good  sense  of  the  members  and  the  control  of

1 Foot Note as supplied by Mr. F.S. Nariman, learned Amicus Curiae in his brief  note of submissions:-

Paragraph 8 in Tej Kiran Jain case has been subsequently quoted with  approval in the following decision: viz. (a) Capt. Virendra Kumar Advocate v. Shivraj Patil Speaker, Lok  Sabha-(1993) 4 SCC 97 (2 Judges) at para 8 page 101: citing Tej Kiran Jain Case; (b) P.V. Narasimha Rao v. State (CBI)-(1998) 4 SCC 626 (5Judges) Majority;  

paras 109 and 113: citing Tej  Kiran Jain case at para 113; (c) Kuldip Nayar v. UOI –(2006) 7 SCC 1 (5 Judges) para 367-373 – citing  

Tej Kiran Jain case (at para 371) (d) Raj Ram Pal v. Hon’ble Speaker-(2007) 3 SCC 184 (5 Judges) at para 379  

citing Tej Kiran Jain case

Page 8

8

proceedings by the Speaker. The Courts have no say in the matter and should really have none.”

and  

“As  was  said  in  Keshav  Singh-1965  (1)  SCR  413  at 441-442 (Bench of 7 Judges)-quoted in AIR 1971 Delhi 86-clause (2) of Article 194 (as also clause (2) of Article 105)  “makes  it  plain  that  the  freedom  (of  speech)  is literally absolute and unfettered”.

9.  Mr. Mukul Rohatgi, learned Attorney General in his written note

submitted:-

“The petition under Article 32 is not maintainable

a. No fundamental right of the petitioner, the sine qua non of  a  petition  under  Article  32  of  the  Constitution,  has been breached.

b. The petitioner  had expressed  an opinion which caused grave  anguish  to  right  thinking  people,  including  the elected representatives of the people. He fully exercised his constitutionally guaranteed right under Article 19(1) (a).  The  resolution  merely  condemns  his  statement without  visiting  any  other  consequence  upon  the petitioner. There is thus no violation of his fundamental right to speech. The right to speech does not include a right to immunity from criticism.

c. There is no violation of Article 21. The resolution does not defame the petitioner. It is an expression of opinion by the House. Just as the petitioner has his opinion, so do members of the House. In fact, it  is the petitioner who has defamed the Father of  the Nation and Netaji,  both illustrious  sons  of  the  soil.  The  first  explanation  to Section 499 IPC may be seen.  The petitioner, in  other

Page 9

9

words,  seeks  to  make  defamatory  statements  and  is unable to bear criticism by other members of the House.

Immunity of House Proceedings

a. The present petition, as can be seen from the Memo of Parties, has been filed against the Houses of Parliament. There is complete freedom of speech in the Houses as guaranteed by Article 105 of the Constitution of India. It is submitted that the right guaranteed under Article 105 cannot be abridged, curtailed or called into question in any Court of law. Any attempt to do so would violate the sanctity  of  free  parliament  proceedings.  Freedom  of Speech in the House is not subject to restrictions placed under Article 19 (2) of the Constitution.

b. The proceedings of the House, as well as the officers of the House, have immunity from being proceeded against in any Court of law, inter alia under Article 122(2) of the Constitution. The only restriction on free speech within Parliament is covered by Article 121 of the Constitution and the good sense of Vice-President (Rajya Sabha) and the Speaker (Lok Sabha) to regulate the business of the House.

The Resolution merely expresses an opinion

a.  The various  rules  of  procedure make it  clear  that  the nature of the Resolution was one without any statutory effect.  It  was  merely  an  expression  of  opinion  of  the House. This is within the domain of the freedom of the House.  Since  the  petitioner  was  visited  with  no  civil consequences, there is no occasion for him to be heard. To  contend  otherwise  would  completely  stymie  the functioning of Parliament.

This Hon’ble Court ought not to exercise its discretion in this matter.

Page 10

10

The  petitioner  has  been  a  constitutional  functionary,  a judge of the Apex Court.  It is unbecoming of anybody including  the  holder  of  constitutional  posts  to  make scandalous remarks against the father of the Nation and Netaji. This Court ought to summarily reject the petition in  exercise  of  its  discretion  under  Article  32  of  the Constitution.”

10.   The  petitioner  filed  written  response  to  the  issue  of

maintainability and submitted as under:

(a) “….while Parliament is free to discuss any person or  conduct  of  any person,  Parliament  usually  does  not discuss  the  statements  made  by  persons  who  are  not public  servants.   Even  if  Parliament  does  discuss  the statements made by private persons, it is not open to it to pass  resolutions  to  condemn  such  persons  or  their statements. Parliament is not expected to take cognizance of statements of private persons. This is rather clear from a bare reading of the Rajya Sabha Rules as well as Lok Sabha Rules which do not allow for any resolution to be passed in respect of private citizens.  In fact, passing a resolution to  condemn the petitioner  or  his  statements, even in respect of ‘historically respected personalities’ is not necessary for functioning of Parliament.  Thus, there can be no claim to legislative privilege in that regard.

(b) … as opposed to the facts in Tej Kiran Jain where the Members of Parliament had been sued personally, in the present  case,  the petitioner makes no claim against any Members.

(c) …  the  claim  in  Tej  Kiran  Jain  emanated  from Article 105(2) of the Constitution which confers absolute freedom on the Members of  the House.   On the other hand, in the present case the resolutions have been passed by the Houses of the Parliament, which certainly do not

Page 11

11

fall  within  the  plain  words  of  “anything  said  or  vote given”.  It is submitted that impugned resolutions have been  passed  in  exercise  of  powers  conferred  on  the houses  of  Parliament  by  Article  105(3)  of  the Constitution….”

11.    We heard Mr. Gopal Subramanium, learned Senior Advocate for

the petitioner, Mr. Mukul Rohtagi, learned Attorney General for the

respondents  and  Mr.  Fali  S.  Nariman,  learned  Senior  Advocate

-Amicus  Curiae  who  assisted  the  Court.  We are  grateful  for   the

assistance rendered by all the learned counsel.

12.  Before we turn to consider the matter, we may quote Article

105 as well as Articles 121 and 122 of the Constitution:-  

“105. Powers, privileges, etc of the Houses of Parliament  and  of  the  members  and committees thereof:

(1) Subject to the provisions of this Constitution and the  rules  and  standing  orders  regulating  the procedure of Parliament, there shall be freedom of speech in Parliament.

(2) No member of Parliament shall be liable to any proceedings in any court in respect of anything said or  any  vote  given  by  him  in  Parliament  or  any committee thereof, and no person shall be so liable in  respect  of  the  publication  by  or  under  the authority  of  either  House  of  Parliament  of  any report, paper, votes or proceedings.

Page 13

13

The  comparable  articles  as  regards  Powers,  Privileges  and

Immunities of Houses of State Legislature, are Articles 194, 211 and

212 of the Constitution.

13.    In  terms  of  Article  118  of  the  Constitution,  both  Houses  of

Parliament have made rules for regulating their procedure and conduct

of  business.  Chapter  11  of  “Rules  of  Procedure  and  Conduct  of

Business in the Council of States (Rajya Sabha)” (hereinafter referred

to as “Rajya Sabha Rules”)  deals with subject “Resolutions” and the

relevant Rules are:-

“CHAPTER XI RESOLUTIONS

154. Notice  A member other than a Minister who wishes to move

a  resolution  on  a  day  allotted  for  private  members’ resolutions, shall give a notice to that effect at least two days before the  date  of  draw of  lot.  The names of  all members from whom such notices are received shall be drawn by lot and those members who secure the first five places in the draw of lot for the day allotted for private members’ resolutions shall be eligible to give notice of one resolution each within ten days  of  the date  of  the draw of lot.  

155. Form  A resolution may be in the form of a declaration of

opinion  by  the  Council  or  in  such  other  form  as  the Chairman may consider appropriate.

156. Subject-matter

Page 14

14

Subject to the provisions of these rules, any member may move a  resolution  relating  to  a  matter  of  general public interest.

157. Conditions of admissibility  In order that a resolution may be admissible, it shall

satisfy the following conditions, namely:—  (i) it shall be clearly and precisely expressed;  (ii) it shall raise substantially one definite issue;  (iii) it shall not contain arguments, inferences, ironical

expressions, imputations or defamatory statements;  (iv)  it  shall  not refer to the conduct or character  of

persons except in their official or public capacity; and  (v)  it  shall  not  relate  to  any matter  which is  under

adjudication by a court of law having jurisdiction in any part of India.  

158. Chairman to decide admissibility  The Chairman shall decide on the admissibility of a

resolution,  and  may  disallow  a  resolution  or  a  part thereof when in his opinion it does not comply with these rules.”

14. Similarly Chapter 13 of “Rules of Procedure and Conduct of

Business in Lok Sabha” (hereinafter referred to as Lok Sabha Rules)

deals  with  subject  “Resolutions”  and  the  relevant  Rules  in  that

Chapter are:-

CHAPTER XIII

Notice of Resolution 170.  A member  other  than  a  Minister  who  wishes  to move a resolution on a day allotted for private members’ resolutions, shall give a notice to that effect at least two days before the date of ballot. The names of all members from whom such notices are received shall  be balloted

Page 15

15

and those members who secure the first three places in the  ballot  for  the  day  allotted  for  private  members’ resolutions  shall  be  eligible  to  give  notice  of  one resolution  each  within  two  days  after  the  date  of  the ballot.  

Form of Resolution 171. A resolution may be in the form of a declaration of opinion, or a recommendation; or may be in the form so as to record either approval or disapproval by the House of an act or policy of Government, or convey a message; or commend, urge or request an action; or call attention to a matter or situation for consideration by Government; or  in  such  other  form  as  the  Speaker  may  consider appropriate.  

Subject matter of Resolution 172. Subject to the provisions of these rules, a member or a Minister may move a resolution relating to a matter of general public interest.  

Admissibility of Resolution 173. In order that a resolution may be admissible, it shall satisfy the following conditions, namely:—  (i) it shall be clearly and precisely expressed;  (ii) it shall raise substantially one definite issue;  (iii)  it  shall  not  contain  arguments,  inferences,  ironical expressions, imputations or defamatory statements;  (iv)  it  shall  not  refer  to  the  conduct  or  character  of persons except in their official or public capacity; and  (v)  it  shall  not  relate  to  any  matter  which  is  under adjudication by a court of law having jurisdiction in any part of India.

Speaker to decide Admissibility  174.  The Speaker  shall  decide whether  resolution or  a part thereof is or is not admissible under these rules and may disallow any resolution or a part thereof when the Speaker is of the opinion that it is an abuse of the right of moving  a  resolution  or  calculated  to  obstruct  or

Page 16

16

prejudicially affect  the procedure of the House or is in contravention of these rules.”

15. Before we deal with the questions raised by the petitioner, issue

of maintainability of this Writ petition must be addressed. According

to the petitioner, the reliance on the ratio in Tej Kiran Jain and others

v. N. Sanjiva Reddy and others2  is confined to cases where individual

Members  of  Parliament  are  sued  and  will  not  cover  cases  where

resolution(s) of the House(s) are called in question while according to

the learned Amicus Curiae the issue stands fully covered by Tej Kiran

Jain (supra).  

16.  The  historical  background  including  the  discussions  in  the

Constituent  Assembly  regarding  draft  Article  85,  which  Article

corresponds to Article 105 of the Constitution has been dealt with in

extenso by this Court  in  Raja Ram Pal v.  Hon’ble Speaker, Lok

Sabha3 in paragraphs 111 to 127 of its judgment and for the present

purposes, we may quote paras 111 and 112:-

“111.   Dr.  Ambedkar,  the  Chairman  of  the  Drafting Committee  of  the  Constitution,  while  mooting  for  the parliamentary  system  similar  to  the  one  obtaining  in England noted, in the course of debates in the Constituent

2        (1970) 2 SCC 272 3 (2007) 3 SCC 184

Page 17

17

Assembly, that in the latter jurisdiction, the parliamentary system relies on the daily assessment of responsibility of the  executive  by  Members  of  Parliament,  through questions,  resolutions,  no-confidence  motions  and debates and periodic assessment done by the electorate at the time of election; unlike the one in the United States of America, a system far more effective than the periodic assessment  and  far  more  necessary  in  a  country  like India.  India  thus  adopted  parliamentary  constitutional traditions.

112.  The concept of parliamentary privileges in India in its modern form is indeed one of graft,  imported from England. The House of Commons having been accepted by  the  Constituent  Assembly  as  the  model  of  the legislature, the privileges of that House were transplanted into  the  Draft  Constitution  through  Articles  105  and 194.”

17.   As regards “freedom of speech and debates or proceedings in

Parliament”, this Court in Special Reference No. 1 of 1964 (Keshav

Singh’s case)4 in paragraph No 72 observed:-

“72. It would be relevant at this stage to mention broadly the main privileges which are claimed by the House of Commons. Freedom of speech is a privilege essential to every free council or legislature, and that is claimed by both the Houses as a basic privilege. This privilege was from 1541 included by established practice in the petition of the Commons to the King at the commencement of the Parliament.  It  is  remarkable  that  notwithstanding  the repeated recognition of this privilege, the Crown and the Commons were not always agreed upon its limits. This privilege  received  final  statutory  recognition  after  the

4 (1965) 1 SCR 413

Page 18

18

Revolution  of  1688.  By  the  9th Article  of  the  Bill  of Rights, it was declared “that the freedom of speech, and debates  or  proceedings  in  Parliament,  ought  not  to  be impeached  or  questioned  in  any  court  or  place  out  of Parliament”.

18. “Freedom of Speech” in discussion and debates in the House,

which was so statutorily recognized by Article 9 of the Bill of Rights

Act, 1688 in the United Kingdom, found expression in specific terms

in sub-section (7) of Section 67 of the Government of India Act, 1915

which declared, “Subject to the rules and standing orders affecting the

chamber, there shall be freedom of speech in both chambers of the

Indian Legislature.  No person shall be liable to any proceedings in

any court by reason of his speech or vote in either chamber …….”.

Section  71  of  the  Government  of  India  Act,  1935  dealt  with

“Privileges  etc.  of  members  of  Provincial  Legislatures”  and

sub-section (1) thereof provided:

“Subject to the provisions of this Act and to rules and standing  orders  regulating  the  procedure  of  the Legislature,  there  shall  be  freedom of  speech in  every Provincial Legislature and no member of the Legislature 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…….”

Page 19

19

Section 86(1) of the Government of India Act, 1935 prohibited

discussion in the Provincial Legislature regarding the conduct of any

Judge of the Federal Court or High Court in the discharge of his duties

while  in terms of  Section 87,  the validity  of  any proceedings  in a

Provincial Legislature could not be called in question on the ground of

any alleged irregularity of procedure.  The Indian Independence Act,

1947 conferred sovereign legislative power on the Indian Dominion

Legislature.  India (Provisional Constitution) Order, 1947, issued by

the  Governor  General  of  India  on  14.08.1947  made  large  scale

amendments  to  the  Government  of  India  Act,  1935,  the  important

being Sections 28, 38, 40 and 41 which were brought into force for

the first time.  Sub-sections (1) and (2) of Section 28 were as under:

“(1) Subject to the provisions of this Act and to the rules and  standing  orders  regulating  the  procedure  of  the Dominion Legislature there shall be freedom of speech in the Legislature, and no member of the Legislature 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 authority of the Legislature of any report, paper, votes or proceedings.

(2)  In other respects,  the privileges of members of  the Dominion Legislature and, until so defined, shall be such as  were  immediately  before  the  establishment  of  the Dominion  enjoyed  by  members  of  the  Indian Legislature.”

Page 20

20

The substantive provisions of aforesaid Section 28 find reflected

in  draft  Article  85  which  was  debated  upon  in  the  Constituent

Assembly.   This  part  is  extensively  dealt  with  by  this  Court  in

paragraphs 111 to 127 in its judgment in Raja Ram Pal (supra).

19.   We now turn to the ambit and extent of “freedom of speech in

Parliament” expressly conferred under Article 105 of the Constitution.

While  dealing  with  first  three  clauses  of  Article  194  of  the

Constitution (which are identical in substance to that of Article 105 in

its  application  to  Parliament),  this  Court  in  Keshav  Singh’s case

(supra)  observed as under:-

“30. It  will  be  noticed  that  the  first  three  material clauses  of  Article  194 deal  with three  different  topics. Clause (1) makes it clear that the freedom of speech in the  legislature  of  every  State  which  it  prescribes,  is subject to the provisions of the Constitution, and to the rules and standing orders, regulating the procedure of the legislature.  While interpreting this clause, it is necessary to emphasize that  the provisions of the Constitution to which  freedom  of  speech  has  been  conferred  on  the legislators,  are  not  the  general  provisions  of  the Constitution  but  only  such  of  them  as  relate  to  the regulation of the procedure of the legislature.  The rules and standing orders  may regulate the procedure of  the legislature and some of the provisions of the Constitution may also purport to regulate it;  these are, for instance, Articles 208 and 211.  The adjectival clause “regulating the  procedure  of  the  legislature”  governs  both  the

Page 21

21

preceding  clauses  relating  to  “the  provisions  of  the Constitution”  and  “the  rules  and  standing  orders”. Therefore,  clause  (1)  confers  on  the  legislators specifically the right of freedom of speech subject to the limitation  prescribed  by  its  first  part.   It  would  thus appear  that  by  making  this  clause  subject  only  to  the specified  provisions  of  the  Constitution,  the Constitution-makers  wanted  to  make  it  clear  that  they thought it necessary to confer on the legislators freedom of speech  separately  and,  in  a  sense,  independently  of Article 19(1)(a).  If all that the legislators were entitled to claim  was  the  freedom  of  speech  and  expression enshrined  in  Article  19(1)(a),  it  would  have  been unnecessary to confer the same right specifically in the manner adopted by Article 194(1); and so, it would be legitimate to conclude that Article 19(1)(a) is not one of the provisions of the Constitution which controls the first part of clause (1) of Article 194.

31. Having  conferred  freedom  of  speech  on  the legislators,  clause (2) emphasizes the fact  that  the said freedom  is  intended  to  be  absolute  and  unfettered. Similar freedom is guaranteed to the legislators in respect of  the  votes  they  may  give  in  the  legislature  or  any committee thereof.  In other words, even if a legislator exercises his right of freedom of speech in violation, say, of Article 211, he would not be liable for any action in any court.   Similarly, if  the legislator by his speech or vote, is alleged to have violated any of the fundamental rights guaranteed by Part III  of  the Constitution in the Legislative Assembly, he would not be answerable for the said contravention in any court.  If the impugned speech amounts  to  libel  or  becomes  actionable  or  indictable under any other provision of the law, immunity has been conferred on him from any action in any court by this clause.  He may be answerable to the House for such a speech  and  the  Speaker  may  take  appropriate  action against him in respect of it; but that is another matter.  It is  plain that  the Constitution-makers attached so much importance  to  the  necessity  of  absolute  freedom  in

Page 22

22

debates within the legislative chambers that they thought it  necessary  to  confer  complete  immunity  on  the legislators from any action in any court in respect of their speeches in the legislative chambers in the wide terms prescribed  by  clause  (2).  Thus,  clause  (1)  confers freedom of speech on the legislators within the legislative chamber and clause (2) makes it plain that the freedom is literally absolute and unfettered.”

20.    Similarly, while dealing with Article 105 of the Constitution in

P.V. Narasimha Rao v. State (CBI/SPE)5, Justice S.P. Bharucha (as

the learned Chief Justice then was)6 speaking for majority, observed

as under:-

“109. By  reason  of  sub-article  (1)  of  Article  105, Members of Parliament enjoy freedom of speech subject only to the provisions of the Constitution and the rules and  standing  orders  regulating  the  procedure  of Parliament. That express provision is made for freedom of speech in Parliament in sub-article (1) of Article 105 suggests that this freedom is independent of the freedom of speech conferred by Article 19 and unrestricted by the exceptions contained therein. This is recognition of the fact that Members need to be free of all constraints in the matter  of  what  they  say  in  Parliament  if  they  are effectively  to  represent  their  constituencies  in  its deliberations.  Sub-article  (2)  of  Article  105  puts negatively what sub-article (1) states affirmatively. Both sub-articles  must  be  read  together  to  determine  their content. By reason of the first part of sub-article (2) no Member is answerable in a court of law or any similar tribunal for what he has said in Parliament. This again is

5 (1998) 4 SCC 626 6 S.P. Bharucha, J. spoke for himself and for S. Rajendra Babu, J.  In his separate  opinion, G. N. Ray, J. concurred with the view of S.P. Bharucha, J.

Page 23

23

recognition of the fact that a Member needs the freedom to say what he thinks is right in Parliament undeterred by the fear of being proceeded against. A vote, whether cast by voice or gesture or the aid of a machine, is treated as an extension of speech or a substitute for speech and is given  the  protection  that  the  spoken  word  has.  Two comments  need  to  be  made  in  regard  to  the  plain language of the first  part of sub-article (2).  First,  what has protection is what has been said and a vote that has been cast, not something that might have been said but was not, or a vote that might have been cast but was not. Secondly, the protection is broad, being “in respect of”. It is so given to secure the freedom of speech in Parliament that sub-article (1) provides for. It is necessary, given the role  Members  of  Parliament  must  perform.  The protection is absolute against court proceedings that have a nexus with what has been said, or a vote that has been cast  in  Parliament.  The  second  part  of  sub-article  (2) provides that no person shall be liable to any proceedings in any court in respect of the publication of any report, papers, votes or proceedings if the publication is by or under  the  authority  of  either  House  of  Parliament.  A person  who  publishes  a  report  or  papers  or  votes  or proceedings by or  under the authority of  Parliament is thereby given protection in the same broad terms against liability to proceedings in any court connected with such publication.  The  Constitution  having  dealt  with  the all-important  privilege  of  Members  of  Parliament  to speak and vote therein as they deem fit, freed of the fear of attracting legal proceedings concerning what they say or how they vote, provides for other powers, privileges and  immunities  in  sub-article  (3).  Till  defined  by Parliament by enactment, they are such as were enjoyed before the Constitution came into force,  that  is  to  say, they are such as were enjoyed by the House of Commons just before 26-1-1950. For it to be established that any power, privilege or immunity exists under sub-article (3), it must be shown that that power, privilege or immunity had  been  recognised  as  inhering  in  the  House  of Commons at the commencement of the Constitution. So

Page 24

24

important  was  the  freedom  to  speak  and  vote  in Parliament thought to be that it was expressly provided for, not left  to be gathered, as other powers, privileges and  immunities  were,  from  the  House  of  Commons. Insofar as the immunity that attaches to what is spoken in Parliament  and  to  a  vote  given  therein  is  concerned, provision is made in sub-article (2); it  is  only in other respects  that  sub-article  (3)  applies.  For  the  sake  of completeness, though we are not here concerned with it, we must add that sub-article (4) gives the protection of the sub-articles that preceded it to all who have the right to  address  the  House,  for  example,  the  Attorney General.”

21.  The observations of this Court in the aforesaid cases make it

clear  that  “freedom  of  speech  in  Parliament”  is  absolute  and

unfettered; that the freedom of speech so conferred is subject only to

such of the provisions of the Constitution which relate to regulation of

procedure  in  Parliament;  that  this  is  recognition  of  the  fact  that

Members  need  to  be  free  of  all  constraints  of  what  they  say  in

Parliament; that clause (2) of Article 105 puts negatively what clause

(1)  states  affirmatively;  that  both clauses  must  be read together  to

determine their  content;  that a vote, whether  cast by voice or gesture

is  an  extension of  speech  or a substitute for speech; that what has

protection under these sub-Articles is what has been said and a vote

that has been cast; that the protection is broad, being “in respect of”;

Page 25

25

that if the impugned speech amounts to libel or becomes actionable or

indictable under any provision of law, immunity has been conferred

from  any  action  in  any  Court;  and  that  the  Constitution  makers

attached so much importance to the absolute freedom in debates that

they  thought  it  necessary  to  confer  complete  immunity  on  the

legislators from any action in any Court in respect of their speeches.

22.   As against clauses (1) and (2) of Article 105 which guarantee

“freedom of speech in Parliament” and correspondingly provide for

complete immunity, the other privileges as per clause (3) are those

which  shall  be  such  as  may  from  time  to  time  be  defined  by

Parliament by law and until so defined shall be those of that House

and of its Members and Committees immediately before coming into

force of Section 15 of the Constitution (44th Amendment) Act, 1978.

“Freedom of speech” in the House is considered so sacrosanct  and

essential for the very functioning of the House that it finds specific

mention with the immunity clearly specified. The absolute nature of

such freedom of speech  weighed with this Court in  Tej Kiran Jain

(supra), when a Bench of six Hon’ble Judges of this Court held that

the expression “anything”  is  of  widest  import  and is  equivalent  to

“everything” and that the only limitation arose from the expression “in

Page 26

26

Parliament” which meant during the sitting of Parliament and in the

course of business of Parliament.  This Court observed:-

“Once  it  was  proved  that  parliament  was  sitting and  its  business  was  being  transacted,  anything  said during  the  course  of  that  business  was  immune  from proceedings  in  any  Court  this  immunity  is  not  only complete but is  as it  should be. It  is  of the essence of parliamentary  system  of  Government  that  people’s representatives  should  be  free  to  express  themselves without  fear  of  legal  consequences.  What  they  said  is only subject to the discipline of the rules of Parliament, the  good  sense  of  the  members  and  the  control  of proceedings by the Speaker. The Courts have no say in the matter and should really have none.”

23.   The  question  therefore  is,  whether  the  aforementioned

observations are confined to individual members.

24.  In so far as debates or discussion in the Houses of Parliament are

concerned, the only substantive restriction found in the Constitution is

in Article 121 of the Constitution which specifically mandates that no

discussion shall take place in Parliament in respect of the conduct of

any Judge of the Supreme Court or of a High Court in the discharge of

his duties. Barring such provision under Article 121, the Constitution

has  placed  no  restriction  on  what  can  be  debated  or  discussed  in

Parliament.  It is completely left to the wisdom or discretion of the

Page 27

27

individual Houses and the presiding authorities in terms of the Rules

of Procedure of each House.  It is for this reason that this Court in

Keshav Singh’s case (supra) observed that the “freedom of speech in

Parliament” is subject only to such provisions of the Constitution and

to  the  rules  and  standing  orders  regulating  the  procedure  of

Parliament.   Substantively, apart  from Article 121, the Constitution

itself  places  no  restriction  on  the  subject  matter  of  discussion  or

debate.   

25. The history of parliamentary privileges as found by this Court

in  the  aforementioned  cases  shows  that  the  privileges  have  been

defined as the sum of the fundamental rights of the House and of its

individual  Members  inter  alia,  as  against  the  prerogatives  of  the

Crown and the authority of the ordinary courts of law, that the term

privilege denotes certain fundamental rights of each House which are

generally accepted as necessary for the exercise of its constitutional

functions, and that the privileges of Parliament are rights which are

absolutely  necessary  for  the  due  execution  of  its  powers.  The

privileges  are  enjoyed  by  individual  Members,  because  the  House

cannot perform its functions without unimpeded use of the services of

its Members, and by each House for the protection of its Members and

Page 28

28

the vindication of its own authority and dignity.  The expression “...…

there shall be freedom of speech in Parliament…….” occurring in first

clause of Article 105, is general in nature; not confined to individual

members  and  is  applicable  to  all  discussions  and  debates  in

Parliament.  Secondly,  the  fact  that  this  privilege  is  available  to

strangers  who  publish  under  the  authority  of  either  House  of

Parliament  under  sub-Article  (2)  and to  those who have a  right  to

speak in, and otherwise take part in the proceedings of a House of

Parliament  or  any  Committee  thereof,  is  sufficient  to  refute  the

argument that it is only an individual privilege of a member of the

House.  All privileges belong to the House, though some of them may

also protect and shield individual members composing the house.

26.  In  Richard William Prebble  v. Television New Zealand Ltd.7,

which was an appeal from Court of Appeal of New Zealand, Privy

Council was called upon to consider an interesting question.   In terms

of Article 9 of the Bill  of Rights,  1689, which is enforced in New

Zealand by virtue of Section 242 of the Legislature Act, 1908 and the

Imperial Laws Application Act, 1988, freedom of speech and debates

or proceedings in Parliament ought not to be impeached or questioned

7 Law Reports: (1995) 1 A.C. 321

Page 29

29

in any Court or place out of Parliament.  The defendant in that case

submitted that this parliamentary privilege would not apply where it is

the Member of Parliament himself who brings proceedings for libel.

The Privy Council did not accept that, the fact that the maker of the

statement in the Parliament was the initiator of the Court proceedings

would in any way affect the question whether Article 9 was infringed.

It was observed,  

“The  privilege  protected  by  Article  9  is  the privilege  of  Parliament  itself.  The  actions  of  any individual  member  of  Parliament,  even  if  he  has  an individual  privilege  of  his  own,  cannot  determine whether  or  not  the privilege of  Parliament  is  to apply. The wider principle encapsulated in Blackstone's words quoted above prevents  the courts from adjudicating on issues arising in or concerning the House, viz. whether or not  a  member  has  misled  the  House  or  acted  from improper motives. The decision of an individual member cannot override that collective privilege of the House to be the sole judge of such matters.”

It was thus found that Article 9 could not be waived and the

privilege of “freedom of speech” is the privilege of the House as a

whole and while it protects individual Members, it still continues to be

privilege of the House.

Page 30

30

27.  While considering effect of Section 3 of the Defamation Act,

1996  under  which  any  individual  Member  of  Parliament  bringing

defamation proceedings is given power to waive for the purposes of

those proceedings, protection of any parliamentary privilege, House of

Lords in Hamilton v. Al Fayed8 observed:-  

“Before  the  passing  of  the  Act  of  1996,  it  was generally  considered that  parliamentary privilege could not be waived either by the Member whose parliamentary conduct  was  in  issue  or  by  the  House  itself.  All parliamentary privilege exists for the better discharge of the  function  of  Parliament  as  a  whole  and  belongs  to Parliament as a whole. Under section 13, the individual Member bringing defamation proceedings is given power to  waive  for  the  purposes  of  those  proceedings  "the protection  of  any  enactment  or  rule  of  law  which prevents proceedings in Parliament being impeached or questioned in any court or place out of Parliament." The section then provides by subsection (2) that such waiver operates  so  that  evidence,  cross-examination  or submissions made relative to the particular M.P. are not to be excluded by reason of parliamentary privilege. The M.P. thus having been given statutory power to waive the protection  afforded  by  the  privilege  so  far  as  he  is concerned,  the  section  goes  on  to  provide  that  the admission of such evidence, questioning etc., should not be treated as infringing the privilege of either House of Parliament: see sub-section (2)(b).

   The effect of the section seems to me to be entirely clear. It deals specifically with the circumstances raised by Mr. Hamilton's case against The Guardian. He could waive  his  own protection from parliamentary  privilege and  in  consequence  any  privilege  of  Parliament  as  a whole would fall to be regarded as not infringed. At least

8 Law Reports: (2001) 1 A.C. 395

Page 31

31

in part,  section 13 was passed by Parliament to enable specifically Mr. Hamilton to proceed with The Guardian action. The issues in this present action against  Mr. Al Fayed are for the most part identical. It would, indeed, be very  strange  if  the  section  had  failed  to  enable  Mr. Hamilton to bring this action.

Mr.  Beloff  sought  to  escape  this  conclusion  by submitting  that  there  are  a  number  of  parliamentary privileges  only  some  of  which  are  enjoyed  by  the individual  M.P.  as  well  as  by  the  House  itself.  He submitted that amongst the privileges that belong to the House alone is its autonomous jurisdiction over certain matters. Therefore, Mr. Hamilton, as a former M.P., could not effectively waive the privileges of the House based on  its  autonomous  jurisdiction  as  opposed  to  other privileges.  In my judgment this argument  is  fallacious. The privileges of the House are just that. They all belong to  the  House  and  not  to  the  individual.  They  exist  to enable  the  House  to  perform  its  functions.  Thus subsection (1) of section 13 accurately refers, not to the privileges of the individual M.P., but to "the protection of any  enactment  or  rule  of  law"  which  prevents  the questioning of procedures in Parliament. The individual M.P. enjoys the protection of Parliamentary privilege. If he waives such protection, then under Section 13(2) any questioning  of  parliamentary  proceedings  (even  by challenging "findings . . . made about his conduct") is not to be treated as a breach of the privilege of Parliament.”

The  aforesaid  case  also  goes  to  show that  all  parliamentary

privileges exist for the better discharge of the function of Parliament

and  belong  to  Parliament  as  a  whole.   In  this  case,  but  for  the

intervention  by  Section  13  of  1996 Act,  it  was  not  possible  for  a

Member  to waive his own protection from parliamentary privilege.

Page 32

32

Even  while  discussing  the  effect  of  such  waiver,  House  of  Lords

observed that all privileges belong to the House and that they exist for

the better discharge of the functions of the House.   

28.  Thus, the privilege of “freedom of speech in Parliament” is the

privilege of Parliament in the first instance and then of its Members.

Further, going by the letter and spirit of first two Clauses of Article

105 and the long history associated with this privilege right from Bill

of Rights, 1688, anything said by Members in Parliament cannot be

called in question in Court.  It is for this reason that in Tej Kiran Jain

(supra) this Court observed, “anything said during the course of that

business was immune from proceedings in any Court.” The question

still  remains  whether  the  immunity  is  also  available  to  collective

expression of opinion by all Members culminating in a motion or a

resolution by the House and whether the House is also entitled to the

same  protection  under  Article  105  (2).   If  exercise  of  freedom of

speech by individual Members is protected, whether their collective

expression in the form of a motion or resolution is also entitled to

such protection.  But the matter is set at rest by Raja Ram Pal (supra).

It was submitted by the Additional Solicitor General  that actions of

Parliament,  except  when  they  are  translated  in  law,  cannot  be

Page 33

33

questioned in Court.  The submission was recorded and dealt with in

paragraphs 394 and 395 as under:-

“394. It is the submission of the learned Additional Solicitor General that the proceedings in question were proceedings which were entitled to protection under Article 105(2). In other words, in respect of proceedings,  if  a  Member  is  offered  immunity, Parliament too is offered immunity. The actions of Parliament,  except  when  they  are  translated  into law, cannot be questioned in court.

395. We  find  the  argument  to  be  founded  on reading of Article 105(2) beyond its context. What is  declared  by  the  said  clause  as  immune  from liability “to any proceedings in any court” is not any  or  every  act  of  the  legislative  body  or Members thereof, but only matters “in respect of anything said or any vote given” by the Members “in  Parliament  or  any  committee  thereof”.  If Article 105(2) were to be construed so broadly, it would tend to save even the legislative Acts from judicial  gaze,  which  would  militate  against  the constitutional provisions.”

29.  In the same case, this Court in para 431 summarised the

principles, the relevant for the present discussion being:-

“(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

Page 34

34

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  on  the  fundamental  rights conferred on the citizens;

(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;”

30. We, therefore, hold the present petition to be maintainable and

proceed to consider the questions raised by the petitioner.

31. The  first  question  raised  by  the  petitioner  is  a  time  tested

question regarding the scope of fundamental right guaranteed under

Article 19(1)(a) of the Constitution to hold and express a dissenting

Page 35

35

opinion. The scope of this article has received judicial consideration

on numerous occasions and the issue whether such freedom would

include right to express a dissenting opinion is also a non issue; as it is

only the maker of an unpopular and dissenting opinion who would

need a cover or insulation. A popular or accepted opinion, naturally

would  not  require  any  protection.  In  any  event,  Article  19(1)(a)

guarantees free speech and expression and makes no distinction and

imposes no caveats, whether such speech is popular or dissenting in

nature. What is interesting is that the petitioner, in fact, exercised such

freedom of speech and exercised it rather adequately. His comments

and  views  on  two  famous  personalities  were  available  for

consumption in public domain. His freedom of speech in publically

expressing his views or propagating his ideas was not and is not in

any manner curtailed or impaired or placed under any restriction.  

32.  The submission of the petitioner however is, when Parliament is

claiming a privilege what is  to be considered is whether the act in

respect  of  which  privilege  is  claimed,  is  fundamental  to  the

functioning to the Parliament.  It is submitted by the petitioner that the

power available with the Houses to deal with a stranger is only in

relation  to  such  act  of  that  stranger  which  interferes  with  the

Page 36

36

functioning of the House and since the remarks of the petitioner did

not  in  any  way  impede  or  interfere  with  the  proceedings  of

Parliament, it was not within the jurisdiction of any of the Houses to

take notice of such remarks and pass the Resolutions in question.  

33. The cases decided by this Court concerning rights of citizens,

whether Members or non-Members, as against the claim of privilege

either  under Article  105 or  194 are of  two kinds.   Pandit  M.S.M.

Sharma v. Shri Sri Krishna Sinha and Others (Pandit Sharma I)9,

Pandit  M.S.M.  Sharma v.  Dr.  Shree  Sri  Krishna  Sinha (Pandit

Sharma II)10,  Keshav  Singh case (supra), Raja  Ram Pal (supra),

Amarinder Singh v. Special Committee, Punjab Vidhan Sabha and

Others11 and Lokayukta,  Justice  Ripusudan Dayal  and  Others  v.

State  of  Madhya  Pradesh  and  Others12 are  all  cases  where

proceedings for breach of privilege were initiated by the concerned

Houses.  Tej Kiran Jain (supra) however was not concerned with any

breach of privilege but  was relating to a non-Member’s action against

Members.   Similarly  P.V. Narasimha  Rao  (supra)  raised  an  issue

whether a Member could be prosecuted for having cast his vote for 9 (1959) Suppl 1 SCR 806 10 (1961) 1 SCR 96 11  (2010) 6 SCC 113 12  (2014) 4 SCC 473

Page 37

37

illegal consideration or bribe. The earlier cases were under Clause (3)

of Article 105 or 194 while last two were under Clauses (1) and (2) of

Article 105.  

34. If  any  action  is  sought  to  be  initiated  against  any  citizen,

whether Member or Non-Member, either in exercise of contempt or

breach of privilege, the law that has developed is that the action of

such citizen must have interfered with fundamental functioning of the

House so as to enable the House to initiate any proceedings against

the citizen. The petitioner is right that in cases concerning breach of

privilege or contempt such aspect whether the actions of the citizen

had  interfered  with  the  functioning  of  the  Houses,  is  crucial  and

fundamental.  But in the present case no action for either breach of

privilege or contempt was initiated or exercised.  Chapter 20 of Lok

Sabha Rules entitled Privileges and Rules 222 to 228 thereof deal with

matters  of  privileges.  Similarly  Rules  187  to  203  of  Rajya  Sabha

Rules deal with issues concerning privileges. If an action for breach of

privilege was initiated,  the enquiry would certainly be on the lines

submitted by the petitioner, in that whether his remarks had in any

way impeded or interfered with the functioning of the Houses.

Page 38

38

35.  We are however concerned in the present case with exercise of

power  in  terms of  Sub-clause  (1)  of  Article  105 which guarantees

‘freedom of speech in Parliament’ as against the cases of the first kind

mentioned in the present case is one under Article 105 (1) and (2) of

the Constitution, without there being any layer of breach of privilege.

The question therefore is whether while exercising such power under

Article  105(1),  is  there  any restriction  on the  scope  and debate  or

discussion  in  Parliament  and  whether  acts  of  a  citizen,  whether

Member  or  Non-Member,  could  not  be  noticed  or  debated.  As

mentioned  hereinabove,  the  only  restriction  in  the  Constitution  as

regards subject matter of any debate or discussion is to be found in

Article 121 of the Constitution. It is axiomatic for the free functioning

of  Houses  of  Parliament  or  Legislatures  of  State  that  the

representatives of people must be free to discuss and debate any issues

or questions concerning general public interest.  It is entirely left to

the discretion of the Presiding Officer to permit discussion so long as

it is within the confines of Rules of Procedure.  

36. We now deal with the concerned Rules and the Resolutions in

question.  Rule 156 of Rajya Sabha Rules quoted hereinabove shows

Page 39

39

that a resolution could relate to a matter of general public interest and

under Rule 155 a resolution could be in the form of a declaration of

opinion  by  Rajya  Sabha.   Under  Rule  157  certain  conditions  are

specified, inter alia that the resolution shall not refer to the conduct or

character of persons except in their official or public capacity.  Rules

171,  172  and  173  of  Lok  Sabha  Rules  are  also  on  similar  lines.

Resolution dated 11th March, 2015 passed by Rajya Sabha expressed

“unequivocal condemnation of the recent remarks” of the petitioner

against  Mahatma  Gandhi  and  Netaji  Subhash  Chandra  Bose.

Similarly  resolution  dated  12th March,  2015  passed  by  Lok  Sabha

condemns the statement of the petitioner relating to Mahatma Gandhi

and Netaji  Subhash Chandra Bose.   The condemnation by both the

Houses  was  of  the  opinion  and  remarks  and  did  not  refer  to  the

conduct or character of the petitioner.  These resolutions were purely

in  the  form of  declaration  of  opinion.   Both  the  resolutions  made

reference to the offices held by the petitioner as a Judge of this Court

and Chairman of the Press Council and show that both Houses were

conscious  of  the fact  that  the remarks about  Mahatma Gandhi  and

Netaji Subhash Chandra Bose were made not by an ordinary person

but by one who had occupied high public office.  In the context of

Page 40

40

such remarks from  a person of the stature of the petitioner, which

were  put  in  public  domain,  if  both  Houses  thought  it  fit  to  pass

resolutions in the form of a declaration, it was certainly within their

competence. The nature of remarks regarding Mahatma Gandhi and

Netaji Subhash Chandra Bose pertain to general public interest and as

such  the  Houses  were  certainly  within  their  jurisdiction  to  pass

resolutions.

37. It is not as if any action was deliberately undertaken or sanction

was issued against the petitioner. The petitioner in exercise of his right

under Article 19(a) made certain statements concerning two famous

personalities. We are not for a moment suggesting that he could not or

ought not to have made those statements. He is entitled to his views

and put those views in public domain for consumption of public in

general. The response by both Houses of Parliament was also natural

in that the Resolutions in question dealt with his statements in public

domain.  All that the resolutions did was to condemn his remarks and

did not refer to the conduct or character of the petitioner.  As stated

earlier,  the  remarks  made  by  the  petitioner  regarding  Mahatama

Gandhi  and  Netaji  Subhas  Chandra  Bose,  which  were  in  public

domain, were touching subject of general public interest and as such

Page 41

41

could well be discussed in the Houses. The learned Attorney General

is right in submitting that the resolutions had no civil consequences in

so  far  as  the conduct  and character  of  the petitioner  is  concerned.

Unlike all the cases referred to herein above which visited upon the

concerned  individual  certain  civil  consequences,  the  present

resolutions do not inflict any penalty or visit the petitioner with any

civil consequences.

38.   In  Yves Michaud  v. Michel Bissonnette13 Court of Appeal for

Province of Quebec of Canada was called upon to consider almost

identical  situation.  The appellant  therein had made certain remarks

about  Jewish  Community  which  led  the  National  Assembly  pass

following motion:-

“That  the  National  Assembly  uncompromisingly, unequivocally  and  unanimously  denounces  the unacceptable remarks about ethnic communities and, in particular, the Jewish community, made by Yves Michaud in  Montreal,  on  December  13,  2000,  at  the Estates-General hearings on the French language.”

The appellant thereafter prayed for a declaratory judgment to

declare  that  the  National  Assembly  did  not  have  constitutional

authority to express an opinion regarding remarks made by citizens

13 2006 QCCA 775

Page 42

42

who  were  not  members,  unless  there  was  breach  of  privileges

recognized as necessary for carrying out its legislative function.  The

Judge  in  the  first  instance  having  rejected  the  prayer,  the  matter

reached Court of Appeal.  It was observed by Court of Appeal that the

Members of the National Assembly collectively expressed an opinion

denouncing the remarks made by the appellant.  Further, the National

Assembly  expressed  itself  in  a  unanimous  resolution  on  a  current

political  issue  and acted  within its  purview.  In  conclusion,  it  was

observed that both the National Assembly and its Members exercised

the  privilege  of  Freedom  of  Speech  by  carrying  the  motion

denouncing the remarks made by the appellant.   In the course of its

judgment,  Court  of  Appeal  observed  in  paragraphs  35  and  36  as

under:-

[35] Freedom of speech is not a privilege held only by individual  Members,  as  contended  by  the  appellant.  It also protects motions carried by the National Assembly, because they are opinions expressed collectively by its Members.  In  Erskine  May’s  Treatise  on  the  Law, Privileges,  Proceedings  and  Usage  of  Parliament, “privilege” is defined as follows:

Parliamentary privilege is the sum of the peculiar rights  enjoyed  by  each  House  collectively  as  a constituent part of the High Court of Parliament, and by Members of each House individually, without which they could  not  discharge  their  function,  and  which  exceed

Page 43

43

those  possessed  by  other  bodies  or  individuals.  Thus privilege,  though  part  of  the  law  of  the  land,  is  to  a certain extent an exemption from the ordinary law……. the  privilege  of  Parliament  are  rights  which  are “absolutely     necessary  for  the  due  execution  of  its powers”..

[36]  In  Great  Britain,  a  joint  parliamentary  committee examined the privilege of free speech and section 9 of the Bill  of  Rights of  1689.  In  its  report,  the  committee affirmed that freedom of speech is not a privilege held by individual  members,  but  clearly  the  privilege  of  the deliberative assembly as a whole:

….freedom of speech is the privilege of the House as a whole and not of the individual member in his own right, although an individual member can assert and rely on it.

This judgment of the Court of Appeal  was challenged in the

Supreme Court but leave to appeal was refused on 23.11.200614.  The

view  so  taken  by  Court  of  Appeal  in  Yves  Michaud  v.

Michel Bissonnette has since then been followed15.

39.   According  to  the  petitioner,  a  stranger  who  makes  a  speech

outside  the  House,  not  connected  with  the  functioning  of  the

Parliament  and  not  derogatory  to  Parliament,  could  not  be  taken

notice  of  by  Parliament  to  punish  him.   The  power  to  punish  a

142006 CarswellQue 9859 15 2015 QCCS 4798 & 2015 QCCS 883

Page 44

44

stranger, if his acts in any way impede or interfere with functioning of

Parliament,  will  certainly  entitle  Parliament  to  initiate  action  for

breach of privilege or in contempt.  Such limitation is definitely read

into  the  exercise  of  power  for  breach  of  privilege  or  contempt.

However, such limitation or restriction cannot be read in every debate.

A pure and simple discussion or debate may touch upon or deal with a

stranger.   

As stated  above,  freedom of  speech in  Parliament  is  subject

only  to  such  of  the  provisions  of  the  Constitution  which relate  to

regulation of procedure in Parliament.  No separate law is required to

confer jurisdiction to deal with the opinions expressed by individuals

and citizens during debates.  If the nature of opinions expressed by

such  citizens  or  individuals  pertain  to  matters  of  general  public

interest, it would certainly be within the powers of the House to have

a  discussion  or  debate  concerning  such  opinions.   So  long  as  the

debate or discussion is within the confines of the Rules,  it  will  be

expressly within the powers of the House to disapprove such opinions.

No restriction is placed by the Constitution or the Rules of Procedure

and none can be read in any of the provisions.  It is true that a citizen

Page 45

45

or an individual may find himself in a situation where he has no way

to reply to  the discussion or  a  resolution  passed by the  concerned

House.  The concerned individual or citizen may also find himself in a

position  where  the  resolution  is  passed  without  giving  him  any

opportunity of hearing.  This definitely is a matter of concern and has

engaged attention of the concerned in some countries.

40.  In 1984, Joint Select Committee of Common Wealth Parliament

of Australia  recommended that  the Houses  of   Federal  Parliament

adopt  Standing Orders to confer  what  has now become known as

“Citizen’s Right of Reply.”  This recommendation was substantially

implemented by resolutions passed by the Senate and the House of

Representatives  on 25.02.1988 and 28.08.1997 respectively.  As  a

result,  a  Citizen  who  has  been   named  or  identified  or  has  been

subject to clear, direct and personal attack or criticism is entitled to

have  his  response  on  merits  published.   Similarly,  Section  25  of

Powers,  Privileges  and  Immunities  of  Parliament  and  Provincial

Legislatures Act 4 of 2004, enacted by the Republic of South Africa

entitles  a  person,  other  than  members,  who  feels  aggrieved  by  a

statement or remark made by a member or a witness in or before a

House or Committee about that person, to submit a written request to

Page 46

46

have his response recorded.  The issue whether protection similar to

the  one  available  in  Australia  and  other  jurisdictions  regarding

entitlement to have a response so recorded, be extended in United

Kingdom  was  considered  by  Joint  Committee  of  Parliamentary

Privileges  in  1999.  But  the  Joint  Committee  recommended  that  a

right of reply scheme should not be adopted in United Kingdom.  It is

thus a matter of legislative policy whether such right be conferred or

not.   But in the absence of  a clear  provision,  we cannot read any

requirement of hearing.

41. These developments and instances show that on certain occasions

a citizen gets noticed or commented upon in debates or discussions in

Houses enjoying privilege of freedom of speech. In what manner and

to  what  extent  the  citizen  be  protected  and  insulated  is  for  the

concerned Houses and Legislatures to decide.

Page 47

47

42. Concluding so, we do not find any merit in the petition, which is

dismissed without any order as to costs.

……………………….CJI (T.S. Thakur)

……………………….J. (R. Banumathi)

……………………….J. (Uday Umesh Lalit)

New Delhi, December 15, 2016