7-judge SC bench may defer ruling on free speech vs legislative privilege battle

The Supreme Court on Monday indicated that it may not, for now, examine the larger constitutional questions surrounding the limits of legislative privileges and their interplay with citizens’ fundamental right to freedom of speech and expression under Article 19(1)(a), after being informed that the Tamil Nadu assembly resolution that triggered the long-pending reference was withdrawn in 2004.

Chief Justice of India (CJI) Surya Kant said that the seven-judge constitution bench could instead dispose of the matter after a brief hearing on Tuesday, while leaving the larger questions open for adjudication in an appropriate case when a live controversy comes before the court.

The development came after senior advocate Raju Ramachandran, appearing for the Tamil Nadu assembly, mentioned the matter before the CJI and pointed out that the resolution, which was the subject matter of the original challenge, had been withdrawn in 2004. He said this fact was not reflected in the referral order and indicated that the assembly’s preliminary objection would be that the controversy had become academic and no longer survived.

Attorney general R Venkataramani and solicitor general Tushar Mehta, who were also present, agreed that the issue may now have become academic.

“I have not seen this in the case file yet. The referral order also does not reflect this,” the CJI said.

The Chief Justice then suggested that if the dispute had indeed become academic, the court could defer examination of the larger constitutional questions until an occasion arose in a live matter.

“Our suggestion will also be in this that if the issue is merely academic, it can be disposed of for the present. We will rather wait for an occasion to come and this very time, we can utilise in adjudicating some other live issues,” observed CJI Kant.

Senior advocate Kapil Sibal, however, submitted that while the particular controversy may have become academic, the larger constitutional questions continued to be of considerable significance. “This particular issue is dead while the larger issues could still be alive. The issue is of great significance,” said Sibal.

The CJI indicated that the bench would hear the matter briefly at 10.30am on Tuesday and could bring the present proceedings to an end without deciding the larger questions. “We will sit at 10.30 am tomorrow briefly and dispose it of while keeping the larger issues open for adjudication in some other matter,” he said.

The development potentially puts on hold a much-anticipated examination by the seven-judge bench of the constitutional boundaries of legislative privilege, including the circumstances in which state legislatures can invoke their privileges against persons outside the House and the extent to which such powers can operate when they collide with the fundamental right to free speech.

The seven-judge bench had been constituted in the long-running matter of N Ravi and others Vs Speaker, Legislative Assembly, Chennai and others, arising from the assembly’s action against journalists of The Hindu in 2003.

The assembly had sentenced then The Hindu editor N Ravi, executive editor Malini Parthasarathy, bureau chief V Jayant, special correspondent Radha Venkatesan and publisher S Rangarajan to 15 days’ simple imprisonment for breach of privilege over reports and an editorial critical of the then Tamil Nadu government and chief minister J Jayalalithaa. The Supreme Court stayed the execution of the warrants issued against them.

The case eventually assumed a much wider constitutional significance. The Supreme Court was called upon to examine the relationship between legislative privileges under Articles 105 and 194 and the fundamental freedoms guaranteed under the Constitution, particularly Article 19(1)(a).

The issue was initially referred to a Constitution Bench in December 2003. In 2004, a five-judge bench recommended that the questions be considered by a larger seven-judge bench after earlier constitution bench decisions threw up conflicting positions.

The reference also brought into focus the constitutional standoff arising from the Uttar Pradesh Assembly’s action in 1964, when it summoned two Allahabad High Court judges and an advocate over the grant of bail to Keshav Singh, who had been imprisoned by the assembly for alleged breach of privilege. The Supreme Court had subsequently set aside the summons.

The reference thus raised questions extending beyond the original dispute involving The Hindu journalists, including the extent of the privileges available to legislatures under Article 194(3), whether such privileges can be exercised against non-members for speech or conduct outside the House, and how those powers must be reconciled with freedom of speech and expression and other fundamental rights.

The proceedings had acquired fresh contemporary relevance in recent weeks, with journalists Ajit Anjum and Seema Chishti, former parliamentarian V Subhashini Ali and comedian Kunal Kamra seeking to intervene in the matter.

Their applications highlighted the implications of the constitutional questions for journalists, citizens and public figures facing legislative privilege proceedings over criticism, reportage or other forms of expression outside the House.

The seven-judge bench was earlier scheduled to commence hearing the reference on October 6 and had been expected to sit for nearly six days.

The CJI’s remarks on Monday, however, indicated that the bench may now use only a brief hearing on Tuesday to dispose of the existing reference, leaving the broader constitutional questions to be tested in a future live controversy.