# JUSTICE (RETD.) MARKANDEY KATJU v. THE LOK SABHA & ANR

- **Citation:** [2016] 11 S.C.R. 621
- **Court:** Supreme Court of India
- **Decided:** 2016-12-15
- **Bench:** T. S. Thakur, R. Banumathi, Uday Umesh Lalit
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/justice-retd-markandey-katju-v-the-lok-sabha-anr-31176
- **Pages:** 39

## Headnote

Constitution of India:
Arts. 32 and 105(2) - Derogatory remarks in Facebook post
by retired Judge of Supreme Court against Mahatma Gandhi and
Subhash Chandra Bose - Lok Sabha as well as Rajya Sabha by
passing resolution condemned the remark.- - Writ petition seeking
quashing of the resolutions - Maintainability of the petition - Held:
Though Parliament/Houses have freedom of speech in Parliament
and anything said by Members in the Parliament is immune from
any proceeding in the Court - However, such immunity is not
available to collective expression of opinio11 by all Members
culmi11ati11g i11 a motio11 or resolution by the House - Therefore, the
present writ petition is maintainable.
Art.19(l}(a) - Derogatory remarks in Facebook post by retired
Judge of Supreme Court, against Mahatma Gandhi a11d Subhash
Chandra Bose - Condem11ed by Lok Sabha a11d Rajya Sabha by
passi11g resolutio11s - Whether the condemnation resulted in
impairing the freedom of speech of the Judge - Held: Art.19(1)(a)
guarantees free speech and expressio11 - It makes 110 disti11ction
a11d imposes 110 caveats whether such speech is popular or disse11ti11g
i11 11ature - I11 the present case, the Judge had exercised the freedom
of speech adequately - His freedom of speech in publica//y
expressing his views or propagating his ideas was not in any man11er
curtailed or impaired or placed under any restriction.
Art. 105(1) - Scope of - Derogatory remarks i11 Facebook
post, by retired Judge of Supreme Court against Mahatma Ga11dhi
a11d Subhash Chandra Bose - Resolutio11s passed by.Lok Sabha
a11d Rajya Sabha condemning the derogatory remarks - Whether
the Houses had jurisdiction to pass the resolutio11s - Held: For the
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[2016) 11 S.C.R.
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free functioning of the Houses of Parliament or Legislatures of
State it is necessary 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
B
c
Rulqs of Procedure - rr. 156, 155 and 157 of Rajya Sabha Rules
and rr. 171, 172 and 17 3 of Lok Sabha Rules show that a resolution
could relate to a matter of general public interest which could be in
the form of a declaration of opinion - However, the rules specify
the condition that the resolution shall not refer to the conduct or
character of persons except in their official or public capacity - In
the present case, the condemnation by both the houses was of the
opinion of the petitioner and did not refer to the conduct or character
of the petitioner - The resolutions were purely in the form of
declaration of opinion - So long as the debate or discussion is
within the confines of the rules, it will be expressly within the powers
D of the House to disapprove such opinions - Rules of Procedure and
Conduct of Business in the Council of States (Rajya Sabha) - n: 155,
156 and 157 - Rules of Procedure and Conduct of Business in Lok
Sabha - rr. 171, 172 and 17 3.
Art. 105 - Privilege under - Nature of - Held: The privilege
of "freedom of speech in Parliament" is the privilege of Parliament/
E House in the first instance and then to its members - Such privilege
is not co11ji11ed to the individual members.
Natural Justice:
Right of being heard - Derogatory remarks made by a citizen
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(a retired Judge of Supreme Court) against Mahatma Gandhi and
Subhash Chandra Bose - Condemnation of the remarks by Lok
Sabha and Rajya Sabha by passing resolutions, without granting
opportunity of hearing to the citizen - Propriety of - Held: Passing
of resolution without giving opportunity of hearing is a matter of
concern - But, in what manner and to what extent the citizen be
G protected and insulated is for the concerned Houses and Legislatures
to decide.
Dismissing the writ petition, the Court
HELD: 1.1 The history of parliamentary privileges shows
H that the privile

## Text

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[2016] 11 S.C.R. 621
JUSTICE (RETD.) MARKANDEY KATJU
v.
THE LOK SABHA & ANR.
(Writ Petition (Civil) No. 504 of2015)
DECEMBER 15, 2016
[T. S. THAKUR, CJI, R. BANUMATHI AND
UDAY UMESH LALIT, JJ.]
Constitution of India:
Arts. 32 and 105(2) - Derogatory remarks in Facebook post
by retired Judge of Supreme Court against Mahatma Gandhi and
Subhash Chandra Bose - Lok Sabha as well as Rajya Sabha by
passing resolution condemned the remark.- - Writ petition seeking
quashing of the resolutions - Maintainability of the petition - Held:
Though Parliament/Houses have freedom of speech in Parliament
and anything said by Members in the Parliament is immune from
any proceeding in the Court - However, such immunity is not
available to collective expression of opinio11 by all Members
culmi11ati11g i11 a motio11 or resolution by the House - Therefore, the
present writ petition is maintainable.
Art.19(l}(a) - Derogatory remarks in Facebook post by retired
Judge of Supreme Court, against Mahatma Gandhi a11d Subhash
Chandra Bose - Condem11ed by Lok Sabha a11d Rajya Sabha by
passi11g resolutio11s - Whether the condemnation resulted in
impairing the freedom of speech of the Judge - Held: Art.19(1)(a)
guarantees free speech and expressio11 - It makes 110 disti11ction
a11d imposes 110 caveats whether such speech is popular or disse11ti11g
i11 11ature - I11 the present case, the Judge had exercised the freedom
of speech adequately - His freedom of speech in publica//y
expressing his views or propagating his ideas was not in any man11er
curtailed or impaired or placed under any restriction.
Art. 105(1) - Scope of - Derogatory remarks i11 Facebook
post, by retired Judge of Supreme Court against Mahatma Ga11dhi
a11d Subhash Chandra Bose - Resolutio11s passed by.Lok Sabha
a11d Rajya Sabha condemning the derogatory remarks - Whether
the Houses had jurisdiction to pass the resolutio11s - Held: For the
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[2016) 11 S.C.R.
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free functioning of the Houses of Parliament or Legislatures of
State it is necessary 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
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c
Rulqs of Procedure - rr. 156, 155 and 157 of Rajya Sabha Rules
and rr. 171, 172 and 17 3 of Lok Sabha Rules show that a resolution
could relate to a matter of general public interest which could be in
the form of a declaration of opinion - However, the rules specify
the condition that the resolution shall not refer to the conduct or
character of persons except in their official or public capacity - In
the present case, the condemnation by both the houses was of the
opinion of the petitioner and did not refer to the conduct or character
of the petitioner - The resolutions were purely in the form of
declaration of opinion - So long as the debate or discussion is
within the confines of the rules, it will be expressly within the powers
D of the House to disapprove such opinions - Rules of Procedure and
Conduct of Business in the Council of States (Rajya Sabha) - n: 155,
156 and 157 - Rules of Procedure and Conduct of Business in Lok
Sabha - rr. 171, 172 and 17 3.
Art. 105 - Privilege under - Nature of - Held: The privilege
of "freedom of speech in Parliament" is the privilege of Parliament/
E House in the first instance and then to its members - Such privilege
is not co11ji11ed to the individual members.
Natural Justice:
Right of being heard - Derogatory remarks made by a citizen
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(a retired Judge of Supreme Court) against Mahatma Gandhi and
Subhash Chandra Bose - Condemnation of the remarks by Lok
Sabha and Rajya Sabha by passing resolutions, without granting
opportunity of hearing to the citizen - Propriety of - Held: Passing
of resolution without giving opportunity of hearing is a matter of
concern - But, in what manner and to what extent the citizen be
G protected and insulated is for the concerned Houses and Legislatures
to decide.
Dismissing the writ petition, the Court
HELD: 1.1 The history of parliamentary privileges shows
H that the privileges have been defined as the sum of the
JUSTICE (RETD.) MARKANDEY KATJU v. THE LOK SABHA
623
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. [Para 25) [647-G-H; 648-A-B]
In Re Keshav Singh (1965) 1 SCR 413 - relied on.
1.2 The expression " ...... there shall be freedom of speech
in Parliament .•..... " occurring in first clause of Article 105 of the
Constitution, is general in nature; not confined to individual
members and is applicable to all discussions and debates in
Parliament. 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. 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 Righ.ts, 1688, anything said by
Members in Parliament cannot be called in question in Court.
(Paras 25 and 28) [648-B-D; 651-A)
Richard William Prebble v. Television New Zealand Ltd.
Law Reports : (1995) 1 A.C. 321; Ha111ilto11 v. Al Fayed
Law Reports : (iOOl) 1 A.C. 395 - referred to.
1.3 However, the immunity is not available to collective
expression of opinion by all Members culminating in a motion or
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SUPREME COURT REPORTS
[2016] 11 S.C.R.
a resolution by the House and the House is not entitled to the
same protection under Article 105 (2). What is declared by Article
105(2) 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. Therefore, the
present petition is maintainable. [Paras 28 and 30] [651-B-C, F-G;
652-F]
Raja Ram Pal v. Hon 'ble Speake1; Lok Sabha 2007 (1)
SCR 317 : (2007) 3 SCC 184 - relied on.
2. Article 19(l)(a) of the Constitution guarantees free
speech and expression and makes no distinction and imposes
no caveats, whether such speech is popular or dissenting in
nature. The petitione'r in the present case, 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. [Para 31] [652-H; 653-A-B]
3. 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. 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 Rules of Procedure and Conduct of Business in Lok Sabha)
(Lok Sabha Rules) entitled Privileges and Rules 222 to 228
thereof deal with matters of privileges. Similarly Rules 187 to
203 of Rules of Procedure and Conduct of Business in Council of
JUSTICE (RETD.) MARKANDEY KATJU v. THE LOK SABHA
625
States (Rajya Sabha) 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 orinterfered with
the functioning of the Houses. [Para 34] [654-A-C]
Pandit MS.M Sharma v. Shri Sri Krishna Sinha and
Others (Pandit Sharma I) (1959) Suppl 1 SCR 806;
Pandit MS.M Sharma v. Dr. Shree Sri Krishna Sinha
(Pandit Sharma JI) (1961) 1 SCR 96; In re:Keshav Singh
(1965) 1 SCR 413; Raja Ram Pal v. Hon 'ble Speaker,
Lok Sabha 2007 (1) SCR 317 : (2007) 3 SCC 184;
Amarinder Singh v. Special Committee, P1mjab Vidhan
Sabha and Others 2010 (4) SCR 1105 : (2010) 6 SCC
113; Lokayukta, Justice Ripusudan Dayal and Others
v. State of Madhya Pradesh and Others 2014 (3) SCR
242 : (2014) 4 SCC 473; Tej Kiran Jain and others v.
N. Sanjiva Reddy and others 1971 (1) SCR 612 :
(1970) 2 SCC 272; P. V. Narasimha Rao v. State (CBI/
SPE) 1998 (2) SCR 870: (1998) 4 SCC 626- referred
to.
4.1 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. (Para 35) [654-E-F]
4.2 Rule 156 of Rajya Sabha Rules 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. [Para 36) (654-G-H; 655-A)
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SUPREME COURT REPORTS
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4.3 In the present case, the condemnation by both the
Houses was of the opinion and remarks made by the petitioner
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
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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
C 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 i>ublic
interest and as such the Houses were certainly within their
D jurisdiction to pass 1·esolutions. [Para 36) (655-B-D]
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4.4 l<'reedom 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. [Para 39] [657-G-H; 658-A-B]
l'Ves Michaud v. Michel Bissonnette 2006 QCCA 775 :
2015 QCCS 883 - referred to.
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5. It is true that a citizen or an individual may find himself
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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.
JUSTICE (RETD.) MARKANDEY KATJU v. THE LOK SABHA
627
This definitely Is a matter of concern and has engaged attention
of the concerned in some countries. But, in what manner and to
what extent the citizen be protected and insulated is for the
concerned Houses and Legislatures to decide. [Paras ·39 and 41)
J658-B-C, H; 659-A]
Case Law Reference
1971 (1) SCR 612
relied on
Para 15
(1965) 1 SCR 413
relied on
Para 17
1998 (2) SCR 870
referred to
Para 20
2007 (1) SCR 317
relied on
Para 28
(1959) Suppl 1 SCR 806
referred to
Para33
(1961) 1 SCR 96
referred to
Para33
2010 (4) SCR 1105
referred to
Para33
2014 (3) SCR 242
referred to
Para33.
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.
504of2015.
Under Article 32 of the Constitution of India
Gopal Subratnanium, Sr. Adv., Shadan Farasat, Talha Abdul
Rehman, Arjun Harkauli, Ms. Anusha Ramesh, Rudra Pratap, Ritesh,
Advs. for the Petitioner.
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Mukul Rohatgi, AG, SaurabhKirpal, Ms. Devanshi Singh, Samit
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Khosla, Ms. Ranjeeta Rohatgi, Ad vs. for the Respondents.
Fali S. Nariman, Sr. Adv. (A.C).
The Judgment of the Court was delivered by
UDAYUMESH LALIT J. 1. This petition under Article 32 seeks
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quashing of Resolution dated 11.03.20 IS passed by Rajya Sabha and
Resolution dated 12.03.20 IS 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.
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SUPREME COURT REPORTS
f20161 11 S.C.R.
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 ofNetaji 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 countiy.
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:-
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"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
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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,
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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 ofNatural Justice
required that he should have been given an opportunity of hearing. The
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petitioner, therefore, stated:-
JUSTICE (RETD.) MARKANDEY KATJU v. THE LOK SABHA
629
[UDAY UMESH LAUT, J.]
"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.
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03.08.2015, this Court while granting fulleropportunity 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.
7. A written note was filed on behalf of the petitioner framing
certain questions and making submissions in respect Jhereto. The
questions so framed and the gist of the submissions are:-
"!. Does Article !9(l)(a) of the Constitution of India
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guarantee an individual the freedom to hold and publicly
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express dissenting opinions?
..... it is submitted that Article I 9(1)(a) of the Constitution
oflndia 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
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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'
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framed under Article I 9(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
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SUPREME COURT REPORTS
[2016111 S.C.R.
petitioner's publications and comments could be subject
matter of discussion in Par! iament, 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 offunctioning of Parliament ....
..... Jn 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 .....
Ill. Whether the privilege under Article I 05(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 withoutjurisdiction. Jn fact, even the
text of the resolution is silent on the said aspect .....
JUSTICE (RETD.) MARKANDEY KATJU v. THE LOK SABHA
631
[UDAY UMESH LALIT, J.]
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
R!!les 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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f2016111 S.C.R.
8. Mr. F. S. Nariman, learned Amicus Curiae placed on record a
brief note of submissions, submitting inter alia:-
"lt 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 (of5 Hon'ble Judges) of the High Court of
Delhi; (reported in AIR 1971 Delhi 86)- and declaring (in
paragraph 8)1 :-
"The Article (I 05) 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
par! iamentary 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 Cou1ts have no say in the matter and
should really have none.''
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)
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4 SCC 97 (2 Judges) at para 8 page 101: citing Tej Kiran Jain Case:
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(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. UOl-{2006) 7 sec 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 Te.i Kiran Jain case
JUSTICE (RETD.) MARKANDEY KATJU v. THE LOK SABHA
633
[UDAY UMESH LAUT, J.]
and
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"As was said in Kes/1av Singll-1965 (I) SCR 413 at 441442 (Bench of 7 Judges)-quoted in AfR 1971 Delhi 86clause (2) of Article 194 (as also clause (2) of Article 105)
"makes it plain that the freedom (of speech) is literally
absolute and unfettered".
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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 ofa
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 Xa). 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 f PC 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
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 oflndia. It is
submitted that the right guaranteed under Attic le I 05 cannot
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be abridged, CU1tailed 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 A1ticle 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 ru Jes 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 Comt ought
to summarily reject the petition in exercise of its discretion
under Article 32 of the Constitution."
I 0. 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 ofany 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
JUSTICE (RETD.) MARKANDEY KATJU v. THE LOK SABHA
[UDAY UMESH LALIT, J.]
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 Ki ran 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 Ki ran 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
I 05 as well as Articles 121 and 122 of the Constitution:-
"I 05. Powers, privileges, etc of the Houses of
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Parliament and of the members and committees
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thereof:
(I) 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.
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(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 (I), (2) and (3) shall apply in
relation to persons who by virtue of this Constitution have
the right to speak in, and othenvise 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."
JUSTICE (RETD.) MARKANDEY KATJU v. THE LOK SABHA
637
[UDAY UMESH LAUT, J.]
The comparable articles as regards Powers, Privileges and
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Immunities of Houses of State Legislature, are A11icles 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
ofbusiness. Chapter 11 of"Rules of Procedure and Conduct of Business
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in the Council of States (Rajya Sabha)" (hereinafter referred to as "Rajya
Sabha Rules") deals with subject "Resolutions" and the relevant Rules
are:-
154. Notice
"CHAPTER Xl
RESOLUTIONS
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 ·sh.all 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 ofone
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;
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(iii) it shall not contain arguments, inferences, ironical
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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 oflaw havingjurisdiction in any part
oflndia.
158. Chairman to decide admissibility
The Chairman shall decide on the admissibility of a
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resolution, and may disallow a resolution or a part thereof
when in his opinion it does not comply with these rules."
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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 ofone 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.
JUSTICE (RETD.) MARKANDEY KATJU v. THE LOK SABHA
639
[UDAY UMESH LAUT, J.]
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 pub I ic interest.
Adtpissibility 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;
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(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 oflaw having jurisdiction in any part oflndia.
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."
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15. Before we deal with the questions raised by the petitioner, · F
issue of maintainability of this Writ petition must be addressed. According
to the petitioner, the reliance on the ratio in Te] Kiran Jain am/ otlters
v. N. Smtjiva Reddy and ot/1ers1 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
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the learned Amicus Curiae the issue stands fully covered by· Tej Kiran
Jain (supra).
16. The historical background including the discussions in the ·
'(1970) 2 sec 212
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Constituent Assembly regarding draft Article 85, which Article
corresponds to Article I 05 of the Constitution has been dealt with in
extenso by this Court in Raja Ram Pal v. llon'ble Speaker, Lok
St1bfut3 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 ofresponsibility 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
modem 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 I 05 and 194."
17.