Supreme Court to Hear Reference on Legislative Privileges, Freedom of Speech

The Supreme Court on Tuesday (October 6) will begin hearing a long-pending reference on the scope of legislative privileges, special powers and immunities enjoyed by Parliament and state legislatures to protect their functioning, and whether they can be invoked against citizens, journalists and others on breaching the privileges of the House. At the heart of the case is whether these privileges, under Articles 105 and 194 of the Constitution, can override fundamental rights such as freedom of speech and expression under Article 19. A seven-judge Constitutional Bench comprising the Chief Justice of India Surya Kant and Justices Aravind Kumar, Prashant Kumar Mishra, Joymalya Bagchi, Vipul M Pancholi, Chandrashekhar and V Mohana will hear the matter. Legal framework Article 194(3) of the Constitution grants legislatures certain privileges and immunities. Article 19(1)(a) guarantees freedom of speech and expression, including press freedom. The case turns on the interplay between these two rights and whether legislative privilege can override the right to free speech. The petitioners contend that such a privilege exists to protect the functioning of the House, not to shield it from scrutiny. Articles 14 and 21 provide for the right to equality and the right to life. The petitioners argue that when legislatures order arrests or imprisonment for alleged breaches of privilege, they affect personal liberty. According to them, any action affecting liberty must satisfy constitutional guarantees of fairness, due process and protection against arbitrariness. In 2003, The Hindu reported on sharp exchanges between Tamil Nadu Chief Minister J Jayalalithaa and the Opposition in the Tamil Nadu Assembly. Speaker K Kalimuthu objected to those reports and referred them to a Privileges Committee, saying the descriptions were “contrary to truth” and “had affected the privileges of the legislature”. The controversy widened after The Hindu published an editorial titled “Rising Intolerance”, which criticised the “crude use of state power against various sections including political opponents and the independent media shows a contempt for the democratic spirit that is deeply disturbing”. It further stated that legislative privilege “exists to protect its free and independent functioning and not to protect the reputation of the government or of individual members”. A Tamil translation published by Murasoli was also referred to the Committee. The Assembly ultimately held five journalists of The Hindu and Murasoli editor S Selvam guilty of gross contempt and breach of privilege, sentencing them to 15 days imprisonment and issuing arrest warrants. Police teams were deployed across Tamil Nadu, Karnataka and Delhi to execute the warrants. The journalists approached the Supreme Court, which immediately intervened and stayed the warrants. The court, however, referred the matter to a Constitution Bench, observing that “substantial questions of law as to the interpretation of Articles 194(3) and 19(1)(a), the interplay between these two articles…are involved”. Supreme Court precedents The reference came about because of two conflicting Constitution Bench decisions. In 1959, the Supreme Court, in a 4:1 majority, in Pandit M.S.M. Sharma v. Sri Krishna Sinha (also known as the Searchlight case) held that Assembly privileges under Article 194(3) included the power to prohibit publication. It said that because Article 19(1)(a) is a general provision and Article 194(3) is a special provision, free speech must yield to legislative privilege. “If, therefore, the Legislative Assembly has the powers, privileges and immunities of the House of Commons and if the petitioner is eventually deprived of his personal liberty as a result of the proceedings before the Committee of Privileges, such deprivation will be in accordance with procedure established by law and the petitioner cannot complain of the breach, actual or threatened, of his Fundamental Right under Art. 21.” However, in 1964, in the Special Reference No. 1 of 1964 (Keshav Singh’s case), the Uttar Pradesh Assembly jailed a citizen, Keshav Singh, distributing pamphlets accusing an MLA of corruption. When the Allahabad High Court granted him interim bail, the Assembly ordered that the two judges who passed the order, the lawyer and Keshav Singh himself, be brought before the House in custody. While a Full Bench of the High Court stayed those arrest warrants, the President referred the dispute to the Supreme Court. The seven-judge bench held that Constitutional courts could examine the legality of detention ordered in privilege proceedings, and that legislatures could not proceed against judges and lawyers for performing their duties. The court said that the Searchlight case did not lay down a universal rule that Part III fundamental rights (a reference to Part III of the Constitution — Articles 12-35 — guaranteeing the fundamental rights of citizens and individuals) always yield to legislative privileges. It said: “Therefore, we do not think it would be right to read the majority decision as laying down a general proposition that whenever there is a conflict between the provisions of the latter part of Article 194(3) and any of the provisions of the fundamental rights guaranteed by Part III, the latter must always yield to the former.” The Supreme Court’s approach to legislative privilege has evolved over the years. In 1954, it ordered the release of the editor of the news weekly Blitz , who had been detained under the Uttar Pradesh Assembly Speaker’s warrant, after finding that he had not been produced before the magistrate within 24 hours. In Raja Ram Pal (2007), arising from the cash-for-query sting, the court upheld Parliament’s expulsion of 11 MPs but held that the exercise of parliamentary privilege is subject to judicial review. In Amarinder Singh (2010), the court quashed the Punjab Assembly’s expulsion of the former Chief Minister, saying that privilege cannot be used to punish conduct unrelated to the functioning of the House. Most recently, in the 2024 Sita Soren case, a seven-judge bench overruled P V Narasimha Rao (1998), in which the court had granted immunity to MPs accused of taking bribes to vote, holding that bribery is not protected by the Constitution. What the petitioners are arguing The petitioners argue that the Assembly’s action violated free speech, personal liberty, and basic principles of natural justice. They contend that “honest and courageous reporting by the press is the bedrock of parliamentary democracy” and that journalists cannot perform their role “in an atmosphere of fear and terror”. They further argue that legislative privileges are subject to Article 21 and that permitting a legislature to deprive a person of liberty “by mere passing of a resolution” would be “an anathema to the Constitution”. The petitioners also argue that privileges exist to protect the functioning of the House, not the government, stating that there is “no concept of any parliamentary privilege being applicable to a Chief Minister… or to a ‘government’” and that privileges are “not intended to protect the fame and reputation of the ruling party.” Multiple intervenors have filed applications in the matter, including the stand-up comedian Kunal Kamra, the journalist Ajit Anjum, and former CPI(M) MP Subhashini Ali. In her application, Ali argues that parliamentary privilege is “functional in character” and exists to protect legislative deliberation, not to “insulate” legislators from scrutiny by citizens or the press. Criticism of a legislature, she says, “even where stringent, severe, disputed or inconvenient” cannot by itself amount to contempt unless it directly obstructs the House’s functioning. Journalist Ajit Anjum, meanwhile, argues that India’s constitution is based on constitutional supremacy, not British-style parliamentary sovereignty; therefore, legislative privilege remains subject to constitutional limitations. He has also urged the court to reconsider the 1959 Searchlight ruling, arguing that restrictions on accurate reporting can have a “chilling effect on the freedom of the press” in an era of live broadcasts, digital publishing and social media.