Justice (Retd.) Markandey Katju v. the Lok Sabha & Another

If nature of opinions expressed by 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.

Case name: Justice (Retd.) Markandey Katju v. the Lok Sabha & Another

Case number: WRIT PETITION (CIVIL) NO.504 OF 2015

Court: Supreme Court of India

Bench: JusticeT.S. Thakur, Justice R. Banumathi & Justice Uday Umesh Lalit

Decided on: 15/12/2016

Relevant Act/Sections: Article 21, 19 and 105 Constitution of India, the Rules of Procedure, Conduct of Business in Lok Sabha & the Rules of Procedure and Conduct of Business in Rajya Sabha

  • 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 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.
  • 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 condemned the remarks made by the petitioner.
  • On the next day, discussion also took place in Lok Sabha whereafter a resolution was passed by Lok Sabha on 12.03.2015 condemning the facebook post made by the petitioner.
  • 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.
  • Since the petitioner did not receive any response from the Chairman, Rajya Sabha or the Speaker, Lok Sabha, he has filed the present petition. The petition prayed for quashing of the aforesaid Resolutions.
  • Is the petition maintainable?
  • Can the Parliament claim privilege on a matter not fundamental to its functioning?
  • 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?
  • Whether there is absolute freedom of speech in Parliament?
  • Whether the proceedings of the Parliament, as well as the officers of the House, have immunity from being proceeded against in any Court of law?
  • Was the resolution merely an expression of the Parliament?
  • The learned counsel for the petitioner submitted that the petitioner merely exercised his right to freedom of speech and expression under Article 19(1) (a) of the Indian Constitution and the Parliament should not pass resolutions condemning the exercise of such free speech. He further submitted that 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.
  • The Attorney General of India submitted that:
  • 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. Therefore, the petition was not maintainable.

Following judgments were relied upon by the court:

  • Tej Kiran Jain and others v. N. Sanjiva Reddy and others
  • Raja Ram Pal v. Hon’ble Speaker, Lok Sabha
  • P.V Narasimha Rao v. State (CBI/SPE)
  • There is complete freedom of speech in the Houses as guaranteed by Article 105 of the Constitution of India.
  • The Amicus Curae observed that 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.
  • The court observed 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.
  • The Court observed that 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. Thus, the privilege of “freedom of speech in Parliament” is the privilege of Parliament in the first instance and then of its Members.
  • The court observed that 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.
  • The court observed that 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. 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.
  • The court observed that 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.
  • The court observed that 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. 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 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.
  • The court observed that the learned Attorney General was right in submitting that the resolutions had no civil consequences in so far as the conduct and character of the petitioner is concerned.
  • The court observed if nature of opinions expressed by 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.
  • 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.
  • The court dismissed the petition as it found no merit in the petition.

Leave a Comment

Your email address will not be published.