7-judge SC bench closes 22-year-old case, leaves legislative privilege questions unanswered

A seven-judge Supreme Court bench on Tuesday disposed of a nearly 22-year-old reference on the constitutional limits of legislative privileges as “infructuous”, after noting that the Tamil Nadu assembly had withdrawn in 2004 the resolution that triggered the proceedings, leaving unanswered for now the larger questions concerning the interplay between legislative privilege and citizens’ fundamental right to freedom of speech and expression.

The bench, headed by Chief Justice of India (CJI) Surya Kant and comprising justices Aravind Kumar, Prashant Kumar Mishra, Joymalya Bagchi, Vipul M Pancholi, Shree Chandrashekhar and V Mohana, agreed with the submissions of the parties that no live controversy survived for adjudication. It, however, accepted the petitioners’ request to keep the larger questions of law open for consideration in an appropriate future case.

It recorded in its order that attorney general R Venkataramani and solicitor general Tushar Mehta, representing the Centre and some states, as well as senior advocate Raju Ramachandran, who appeared for the Tamil Nadu assembly, are ad idem that the subject matter is rendered infructuous and no issue survives for the current adjudication.

“However, counsel for the petitioners refer to the December 2004 reference order pointing out that there are various important questions of law that can be kept open for examination in future. We are in full agreement with the suggestions given by the petitioners. The present writ petitions are thus disposed of as being infructuous. However, questions of law are kept open to be adjudicated in appropriate proceedings in future,” the court said in its order.

The order closes the proceedings without ruling on the substantive constitutional questions referred to the larger bench nearly two decades ago. On Monday, CJI Kant indicated that the court could dispose of the matter after a brief hearing, leaving the larger issues for another occasion when they arose in a live dispute.

At Tuesday’s hearing, the bench acknowledged that the crucial development that had rendered the controversy academic -- the Tamil Nadu Assembly’s unanimous withdrawal of its November 2003 resolution-- had apparently escaped the court’s attention when the matter was referred to the seven-judge bench.

The order noted that the assembly secretary’s affidavit, filed before the Supreme Court in August 2004, had detailed a resolution passed on July 13, 2004, withdrawing the earlier resolution. However, this subsequent development “skipped the notice of this court” when it passed an order in December 2004 referring questions arising from conflicting decisions of the court to the present bench.

Senior advocate Ramachandran drew the bench’s attention to the affidavit at the outset of Tuesday’s proceedings. The court observed that if the relevant issues had not been framed, it could leave all the larger questions open. Senior advocates Kapil Sibal, Abhishek Manu Singhvi, Ramachandran, Amit Anand Tiwari and Gopal Sankaranarayanan appeared for the petitioners in the matter.

The reference arose from the Tamil Nadu Assembly’s action in 2003 against journalists of The Hindu over reports and an editorial critical of the then state government and chief minister J Jayalalithaa. The Assembly sentenced then 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. The Supreme Court stayed the execution of the warrants issued against them.

What began as a challenge to the Assembly’s action eventually raised questions of wider constitutional importance as to how far legislative privileges under Articles 105 and 194 extend, whether they can be invoked against people who are not members of the legislature for speech or conduct outside the House, and how those privileges must be reconciled with the fundamental freedoms guaranteed by the Constitution.

The dispute was initially referred to a constitution bench in December 2003. A five-judge bench subsequently recommended consideration by a larger bench after earlier constitution bench decisions appeared to present conflicting positions on the scope of legislative privilege.

The reference also drew on the constitutional confrontation that followed 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 later set aside the summons.

The central question now remains unanswered. The seven-judge bench has not determined the constitutional boundaries of legislative privilege or how such powers should operate when they collide with Article 19(1)(a). Those questions will have to await another round of adjudication, when a live controversy gives the Supreme Court an occasion to finally define the contours of legislative privilege and its relationship with citizens’ fundamental right to free speech.

The proceedings had acquired renewed contemporary relevance, with journalists Ajit Anjum and Seema Chishti, former parliamentarian V Subhashini Ali and comedian Kunal Kamra seeking to intervene, citing the potential implications of the reference for journalists, citizens and public figures facing privilege proceedings over criticism, reportage or other expression outside the legislature.

With Tuesday’s order, however, the court has closed the present case without deciding those broader issues, expressly preserving them for adjudication in appropriate proceedings.