Former Judge of Supreme Court and former Chairman Press Council of India, Justice Markandey Katju has filed a Writ Petition in the Supreme Court against the Speaker of the Lok Sabha, Chairman of the Rajya Sabha and the Secretary Generals of both the abovementioned Houses being aggrieved with the passing of a resolution in each of the Houses, against him.
The Resolutions pertain to the statements made by Justice Katju on his blog wherein he called Mahatma Gandhi a British agent and Subhas Chandra Bose a Japanese agent. Some members initiated discussions in the Lok Sabha and Rajya Sabha and heavily condemned these statements made by Justice Katju. For reading the relevant discussions of the Lok Sabha click here.
Subsequent to the discussions, the following resolution was passed unanimously by the Rajya Sabha on 11th March, 2015:
“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 Gandhiji and Netaji Subhash Chandra Bose who led the Indian National Army for the freedom of the country.”
The very next day i.e. on 12.03.2015 the Lok Sabha passed the following statement condemning the statement of Justice Katju:
“Father of the Nation Gandhiji and Netaji Shri Subhash Chandra Bose both are venerated by the entire country. The contribution of these two great personalities and their dedication is unparalleled. The statement given by former Judge of the Supreme Court and former Chairman of Press Council of India Shri Markandey Katju is deplorable. This House unequivocally condemns, the statement given by former Judge of Supreme Court Shri Markandey Katju unanimously.”
Now, on 29.06.2015, more than 3 months after those resolutions were passed, Justice Katju has filed a Writ Petition in the Supreme Court under Article 32 of the Constitution of India for violation of his Fundamental Rights guaranteed under Articles 14, 21 and 19(1)(a), praying for the passing of a writ of mandamus for the following remedies in the alternative:
a) Quashing of the above Resolutions passed by the Lok Sabha on 12.3.2015 and the Rajya Sabha on 11.3.2015. OR
b) Directing the Speaker (Lok Sabha) and Chairman (Rajya Sabha) to give a post decisional hearing either to Justice Katju himself or through his duly designated lawyer(s).
Justice Katju himself being outside India has filed his Affidavit-in-support of the Writ Petition through his next friend in India.
Justice Katju has challenged the resolutions on the following various grounds:
- That the resolutions have caused grave and irreparable harm to his reputation and his life’s endeavour to uphold the Constitution and the rule of law.
- That the statements made by him are made as a private person of the country and are purely academic in nature and are a manifestation of scientific temper of a citizen.
- The Supreme Court in the case of Devidas Tuljapurkar v. State of Maharashtra & Ors, Criminal Appeal No. 1179 of 2010 (Order dated 14th May, 2015) held as follows:
“93. There can be no two opinions that one can express his views freely about a historically respected personality showing his disagreement, dissent, criticism, non-acceptance or critical evaluation.”
- The said resolutions are also in violation of the Rules for Procedure and Business framed by both the houses of Parliament under Article 118 of the Constitution. Specifically in contravention of Chapter XI of Rajya Sabha Rules of Procedure and Business and Chapter XIII of Lok Sabha Rules of Procedure and Business both of which relate to Resolutions by the Houses.
- The power under Rule 171 of the Lok Sabha Rules provides that the Resolution must relate to act of Government, thus the Speaker and the Chairman of the respective Houses are not competent to take cognizance of the expressions of free speech of the private person. The petition further states that in any event, the Houses of the Parliament ought not to take cognizance of academic discussions or seeds of academic discussions in public about issues confronting India’s history.
- Rule 172 of the Rules of Procedure and Conduct of Lok Sabha only permits resolution in the matter of ‘general public interest’ and the works of Justice Katju reflected in the posts relate to his academic analysis which are not of general public interest.
- Rule 156 of the Rules of Procedure and Conduct of conduct of business in the Council of States permits any member, subject to other rules, to move a resolution relating to a matter of general public interest.
- That the resolutions do not fulfil the jurisdictional requirement and that the Parliament lacks the competence and authority to pass such resolutions. It is not a case of mere procedural irregularity. And whether or not the said statements are deplorable or condemnable, it can only be judged by bodies performing judicial function and cannot be decided by the Lok Sabha or the Rajya Sabha.
- In anticipation of the possible defence to be taken (by the respondents) under Article 105 of the Constitution of India which guarantees freedom of speech to the members of the Parliament for anything said by them within the Parliament, Justice Katju has already mentioned in the petition that such powers and privileges given under Article 105 is subject to other provision of the Constitution and subject to Article 118 inclusive of the rules made thereunder.
- It is further contended in the petition that the Speaker and the Chairman of the respective houses, while performing their function of deciding whether or not to admit a resolution, are acting quasi-judicial capacities and therefore such decisions taken in a quasi-judicial capacity are amenable to judicial review.
- That the statements made by Justice Katju do not fall under any of the exceptions for which ‘reasonable restrictions’ could have been placed under Article 19(2).
- That the right to preserve and protect one’s reputation and the right to being heard before being adversely commented are an integral part of Article 21 and thus the resolutions have violated his right to life and liberty guaranteed under Article 21 of the Constitution.
- That the ratio of the recent judgment of the Supreme Court in the case of Shreya Singhal v. UOI dated 24.3.3015 in W.P. (Cri) 167 of 2012, which declared Section 66-A of the Information Technology Act, 2000 as unconstitutional, is squarely applicable to the facts of this case and the right of reputation and freedom of speech and expression cannot be taken away in the manner it has been done by the Parliament.
- That the resolution in its very conception and design has consistently emphasised that Justice Katju was a former Judge of the Supreme Court, and thereby such resolutions give the impression that they were passed to merely prove that the Parliament is the supreme and most powerful body in the country and can take action against anybody. They have failed to realise that he is a private citizen of a country and at the time of making the statement he did not hold any constitutional, official or governmental post.
- That as per the Constitution Bench of the Supreme Court in Raja Ram Pal v. Hon’ble Speaker, Lok Sabha and Others, (2007) 3 SCC 184 it was held that the freedom of speech mentioned in Article 105(1) of the Constitution is unrestricted and not subject to Article 19 of the Constitution, the same applies to statements made by individuals within the Parliament and not to resolutions passed by the Houses of Parliament.
The full Petition filed by Justice Katju can be read here.
Justice Katju has also stated in his petition that on 23.03.2015 he had even written to the Speaker and Chairman of the respective Houses, requesting for a post-decisional hearing keeping in mind that he was not given any opportunity of being heard before the passing of the resolution. He has further stated that he hasn’t received any reply whatsoever from either of the above authorities to whom such request was made.
The above Petition may come up for hearing at the Notice Stage in the next 15-20 days.
