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Thursday, December 22, 2016

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 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“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...

                                                                  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.



This petition under Article 32 seeks quashing






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 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.”

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 Court as Amicus  Curiae  and  also  requested
Mr. Mukul Rohatgi, Attorney General to appear and make his submissions.

  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…..

…..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.

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…..”


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 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

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

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.

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

Immunity of House Proceedings


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.

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

 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.

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 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.

(3) In other respects, the powers, privileges and immunities of  each  House
of Parliament, and of the members and the committees of  each  House,  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 the coming into force of  Section  15  of  the
Constitution (Forty fourth Amendment) Act 1978.

(4) The provisions of clauses (1), (2) and (3) shall apply  in  relation  to
persons who by virtue of this Constitution have the right to speak  in,  and
otherwise to take part in the proceedings of, a House of Parliament  or  any
committee thereof as they apply in relation to members of Parliament.

 121. Restriction on discussion in Parliament

No discussions shall take place in Parliament with respect  to  the  conduct
of any Judge of the Supreme Court or of a High Court  in  the  discharge  of
his duties expect upon a motion for presenting an address to  the  President
praying for the removal of the Judge as hereinafter provided.

122. Courts not to inquire into proceedings of Parliament

(1) The validity of any proceedings in Parliament shall  not  be  called  in
question on the ground of any alleged irregularity of procedure.

(2) No officer or member of Parliament in  whom  powers  are  vested  by  or
under  this  Constitution  for  regulating  procedure  or  the  conduct   of
business, or for maintaining order, in Parliament shall be  subject  to  the
jurisdiction of any court in  respect  of  the  exercise  by  him  of  those
powers. ”

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
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  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  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 others[2]  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 Sabha[3]  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
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  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…….”


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.”

      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 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 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 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 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”; 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  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  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  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 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.

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
Fayed[8] 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  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.  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 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 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 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 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 Others[11]  and  Lokayukta,  Justice  Ripusudan  Dayal  and
Others v. State of  Madhya  Pradesh  and  Others[12]  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 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.

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  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
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 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 Bissonnette[13]  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 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  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 23.11.2006[14].  The view so  taken
by Court of Appeal in Yves Michaud  v.  Michel Bissonnette  has  since  then
been followed[15].

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 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 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  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.









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
-----------------------
[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.
      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;
      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;
      Kuldip Nayar v. UOI –(2006) 7 SCC 1 (5 Judges) para 367-373 – citing
Tej Kiran Jain case (at para 371)
      Raj Ram Pal v. Hon’ble Speaker-(2007) 3 SCC 184 (5 Judges) at para
379 citing Tej Kiran Jain case
[2]              [3] (1970) 2 SCC 272
[4]    (2007) 3 SCC 184
[5]    (1965) 1 SCR 413
[6]    (1998) 4 SCC 626
[7]    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.
[8]    Law Reports: (1995) 1 A.C. 321
[9]    Law Reports: (2001) 1 A.C. 395
[10]   (1959) Suppl 1 SCR 806
[11]   (1961) 1 SCR 96
[12]    (2010) 6 SCC 113
[13]    (2014) 4 SCC 473
[14]   2006 QCCA 775
[15]  2006 CarswellQue 9859
[16]   2015 QCCS 4798 & 2015 QCCS 883

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