Legislative Privilege and Free Speech | Day 1: Supreme Court disposes the 23 year old case in 14 minutes
Legislative Privileges under Article 194 and the Freedom of SpeechJudges: Surya Kant CJI, Aravind Kumar J, P.K. Mishra J, Joymalya Bagchi J, V.M. Pancholi J, Shree Chandrashekhar J, V. Mohana J
A battery of senior counsel had made its way down Tilak Marg to the Supreme Court this morning for a seven-judge hearing on a question that had been pending for years: whether legislative privilege under Article 194 could prevail over the freedom of speech guaranteed by Article 19(1)(a). The Tamil Nadu Assembly had passed a resolution in 2003 against The Hindu for sharing “distorted” reports of the proceedings of the Assembly. This, the assembly said, amounted to the breach of privilege of the entire House.
This eventually ended up in the Supreme Court, with the matter being referred to a larger bench in December 2004. It remained pending in the docket for over 20 years. Interestingly, the resolution at the centre of the dispute had already been withdrawn by the Tamil Nadu Legislative Assembly in 2004. This was before the matter was referred to seven judges. The Bench headed by Chief Justice Surya Kant consequently disposed of the writ petitions as infructuous.
The issue had been mentioned in Court the previous day, when Senior Advocate Raju Ramachandran, appearing for the Tamil Nadu Legislative Assembly, told CJI Surya Kant that the 2003 resolution had been withdrawn unanimously in 2004. He said the withdrawal was not reflected in the order referring the matter to seven judges and urged the Court not to take up an academic exercise.
Senior Advocates Kapil Sibal and Amit Anand Tiwari, appearing for the petitioners, said the withdrawal had been brought to the Court’s notice, though it may not have been accounted for. Sibal agreed that the dispute concerning the Assembly resolution “may be dead”, but said the larger question of legislative privilege and free speech remained alive. CJI Surya Kant indicated that the matter could be kept open for a future occasion.
The 2003 resolution led to the Supreme Court
CJI Surya Kant asked Ramachandran about the 24 August 2004 affidavit recording the Assembly’s withdrawal of the resolution. Ramachandran said the resolution had been passed unanimously. Sibal pointed out that the Assembly had withdrawn it on 30 July 2004, before the matter was referred to seven judges on 8 December 2004. Asked whether questions had been framed, Sibal said they had not. Ramachandran said the reference concerned the conflict between Pandit M.S.M. Sharma v Shri Krishna Sinha (1958) and the 1964 Presidential Reference.
The dispute began in April 2003, when The Hindu published a series of reports on proceedings in the Tamil Nadu Legislative Assembly, followed by an editorial criticising the then Chief Minister Jayalalithaa’s “authoritarian ways”. Speaker K. Kalimuthu referred the publications to the Committee of Privileges. The Committee met on 5 May 2003, considered the material and called for an explanation after finding that the statements indicated a breach of privilege.
On 7 November 2003, before the matter came up for discussion before the House, the Assembly passed a resolution accusing The Hindu of having “distorted the proceedings of the Assembly” and of making comments that amounted to “imputing motives and slandering the Privileges Committee and its action”. The resolution treated the publications as a breach of privilege under Article 194 and resolved to arrest Editor N. Ravi, Executive Editor Malini Parthasarathy, Bureau Chief V. Jayant, Special Correspondent Radha Venkatesan and Publisher S. Rangarajan.
About half an hour after the resolution was passed, police raided The Hindu’s Chennai office and arrested the five editorial staff members. Ravi and the others moved the Supreme Court the following day. Senior Advocate Harish Salve argued that the publication had not obstructed the proceedings of the Assembly and that Article 194 could not be invoked to suppress the newspaper’s freedom of speech. A Division Bench of Justices Y.K. Sabharwal and S.B. Sinha stayed the arrests, noting an apparent conflict between the authorities on legislative privilege and fundamental rights.
The seven-judge reference outlived the resolution
The Division Bench referred the matter to a five-judge Bench on 8 December 2003, recording substantial questions concerning the interpretation of Article 194(3), Article 19(1)(a), the interplay between the two provisions and Article 21. By the time the five-judge Bench considered the matter on 8 December 2004, the Assembly had already withdrawn the resolution on 30 July. An affidavit dated 24 August 2004 from the then Assembly Secretary placed the withdrawal on record. The withdrawal, however, was not specifically noticed when the five-judge Bench heard the matter. Instead, the Bench considered the apparent conflict between observations in Pandit M.S.M. Sharma and the powers, privileges and immunities explained in 1964 Reference. The five-judge Bench consequently referred the matter to a seven-judge Bench.
The matter remained pending for nearly two decades. It was listed before a seven-judge Bench headed by then CJI D.Y. Chandrachud in October 2023. On 12 August, a Bench of CJI Surya Kant and Justices Bagchi and Mohana directed that the matter be taken up for arguments from 6 October.
Court leaves privilege and free speech questions open
The Bench disposed of the writ petitions as infructuous, leaving the questions concerning Articles 194(3), 19(1)(a) and 21 open for an appropriate future proceeding.
Senior Advocate A.M. Singhvi saw the lighter side of the unusually brief hearing, telling the Bench that it could claim two records that morning: “the shortest seven-judge Bench hearing” and “the quickest disposal”.