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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

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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.”

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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

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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…..

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…..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.

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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…..”

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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

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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

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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.

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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

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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.

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(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. ”

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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

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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

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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

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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

2

(1970) 2 SCC 272

3

(2007) 3 SCC 184

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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

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Revolution of 1688. By the 9

th

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…….”

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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.”

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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

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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 (44

th

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 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

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

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

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 11

th

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 12

th

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 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

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 23.11.2006

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

14

2006 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

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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.

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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