Brief - Markandey Katju V Lok Sabha

Article 105 guarantees ‘freedom of speech in Parliament’
[Case Brief] Justice (Retd.) Markandey Katju v. the Lok Sabha &
Another
Case name: Justice (Retd.) Markandey Katju v. the Lok Sabha & Another
Case number: WRIT PETITION (CIVIL) NO.504 OF 2015
Court: Supreme Court of India
Bench: Justice T.S. Thakur, Justice R. Banumathi & Justice Uday Umesh Lalit
Decided on: 15/12/2016
Relevant Act: Constitution of India, the Rules of Procedure, Conduct of Business in Lok

Sabha & the Rules of Procedure and Conduct of Business in Rajya Sabha
 BRIEF FACTS AND PROCEDURAL HISTORY
1. On 10.03.2015, the petitioner, a former Judge of this Court published a post on his
Facebook Page in respect of Mahatma Gandhi, Father of the Nation. The post was
entitled “Gandhi – A British Agent” and stated that Mahatma Gandhi did great
harm to India. On the same date, another post was published by the petitioner on his
Facebook Page in respect of Netaji Subhash Chandra Bose referring to him as an
agent of Japanese fascism.
2. These posts evoked immediate response and on 11.03.2015, discussion took place
in Rajya Sabha. At the end of the discussion, a Resolution was moved by the
Chairman of Rajya Sabha which was passed unanimously by the House. The
resolution condemned the remarks made by the petitioner.
3. On the next day, discussion also took place in Lok Sabha whereafter a resolution
was passed by Lok Sabha on 12.03.2015 condemning the facebook post made by
the petitioner.
4. 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.
5. 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
prayed for quashing of the aforesaid Resolutions.
 ISSUES BEFORE THE COURT
1. Is the petition maintainable?
2. Can the Parliament claim privilege on a matter not fundamental to its functioning?
3. 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?
4. Whether there is absolute freedom of speech in Parliament?
5. Whether the proceedings of the Parliament, as well as the officers of the House,
have immunity from being proceeded against in any Court of law?
6. Was the resolution merely an expression of the Parliament?
 RATIO OF THE COURT
1. The learned counsel for the petitioner submitted that the petitioner merely
exercised his right to freedom of speech and expression under Article 19(1)(a) of
the Indian Constitution and the Parliament should not pass resolutions
condemning the exercise of such free speech. He further submitted that it is not
open to Parliament to condemn the petitioner and his remarks as doing such an act
is not in aid of functioning of Parliament.
2. The Attorney General of India submitted that:
a. The petitioner had expressed an opinion which caused grave anguish to right
thinking people, including the elected representatives of the people. He fully
exercised his constitutionally guaranteed right under Article 19(1) (a). The
resolution merely condemns his statement without visiting any other
consequence upon the petitioner. There is thus no violation of his fundamental
right to speech. The right to speech does not include a right to immunity from
criticism. Therefore, the petition was not maintainable.
b. Further, there is no violation of Article 21. The resolution does not defame the
petitioner. It is an expression of opinion by the House.
c. There is complete freedom of speech in the Houses as guaranteed by Article
105 of the Constitution of India.
d. 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.
3. The Amicus Curae observed that the Article (105) confers immunity inter alia in
respect of “anything said……. in Parliament”. The word ‘anything’ is of the
widest import and is equivalent to ‘everything’. The only limitation arises from
the words ‘in Parliament’ which means during the sitting of Parliament and in the
course of the business of Parliament.
4. The court observed that “freedom of speech in Parliament” is absolute and
unfettered; that the freedom of speech so conferred is subject only to such of the
provisions of the Constitution which relate to regulation of procedure in
Parliament.
5. The Court observed that the expression “...… there shall be freedom of speech in
Parliament…….” occurring in first clause of Article 105, is general in nature; not
confined to individual members and is applicable to all discussions and debates in
Parliament. Thus, the privilege of “freedom of speech in Parliament” is the
privilege of Parliament in the first instance and then of its Members.
6. The court observed that Article 19(1)(a) guarantees free speech and expression
and makes no distinction and imposes no caveats, whether such speech is popular
or dissenting in nature. What is interesting is that the petitioner, in fact, exercised
such freedom of speech and exercised it rather adequately. His comments and
views on two famous personalities were available for consumption in public
domain. His freedom of speech in publically expressing his views or propagating
his ideas was not and is not in any manner curtailed or impaired or placed under
any restriction.
7. The court observed that the petitioner is right that in cases concerning breach of
privilege or contempt such aspect whether the actions of the citizen had interfered
with the functioning of the Houses, is crucial and fundamental. But in the present
case no action for either breach of privilege or contempt was initiated or
exercised. If an action for breach of privilege was initiated, the enquiry would
certainly be on the lines submitted by the petitioner, in that whether his remarks
had in any way impeded or interfered with the functioning of the Houses.
8. The court observed that it is axiomatic for the free functioning of Houses of
Parliament or Legislatures of State that the representatives of people must be free
to discuss and debate any issues or questions concerning general public interest. It
is entirely left to the discretion of the Presiding Officer to permit discussion so
long as it is within the confines of Rules of Procedure.
9. The court observed that under Rule 157 certain conditions are specified, inter alia
that the resolution shall not refer to the conduct or character of persons except in
their official or public capacity. Resolution dated 11th March, 2015 passed by
Rajya Sabha expressed “unequivocal condemnation of the recent remarks” of the
petitioner against Mahatma Gandhi and Netaji Subhash Chandra Bose. Similarly
resolution dated 12th March, 2015 passed by Lok Sabha condemns the statement
of the petitioner relating to Mahatma Gandhi and Netaji Subhash Chandra Bose.
The condemnation by both the Houses was of the opinion and remarks and did not
refer to the conduct or character of the petitioner. These resolutions were purely in
the form of declaration of opinion. Both the resolutions made reference to the
offices held by the petitioner as a Judge of this Court and Chairman of the Press
Council and show that both Houses were conscious of the fact that the remarks
about Mahatma Gandhi and Netaji Subhash Chandra Bose were made not by an
ordinary person but by one who had occupied high public office. In the context of
such remarks from a person of the stature of the petitioner, which were put in
public domain, if both Houses thought it fit to pass resolutions in the form of a
declaration, it was certainly within their competence. The nature of remarks
regarding Mahatma Gandhi and Netaji Subhash Chandra Bose pertain to general
public interest and as such the Houses were certainly within their jurisdiction to
pass resolutions.
10. The court observed that the learned Attorney General was right in submitting that
the resolutions had no civil consequences in so far as the conduct and character of
the petitioner is concerned.
11. The court observed if nature of opinions expressed by citizens or individuals
pertain to matters of general public interest, it would certainly be within the
powers of the House to have a discussion or debate concerning such opinions. So
long as the debate or discussion is within the confines of the Rules, it will be
expressly within the powers of the House to disapprove such opinions.
 DECISION HELD BY THE COURT
1. The court dismissed the petition as it found no merit in the petition.

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Article 105 guarantees ‘freedom of speech in Parliament’

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

Court: Supreme Court of India

Decided on: 15/12/2016

Relevant Act: Constitution of India, the Rules of Procedure, Conduct of Business in Lok

 BRIEF FACTS AND PROCEDURAL HISTORY

 ISSUES BEFORE THE COURT

1. Is the petition maintainable?

3. Whether either House of Parliament could condemn any individual or his

4. Whether there is absolute freedom of speech in Parliament?

6. Was the resolution merely an expression of the Parliament?

 RATIO OF THE COURT

 DECISION HELD BY THE COURT

1. The court dismissed the petition as it found no merit in the petition.

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