Legislative privilege versus free speech: SC may not hear on merits after TN Assembly says resolution was withdrawn

A seven-judge Constitution Bench may not commence hearing on October 6 questions touching upon whether legislative privilege can stifle free speech, arising out of a 2003 Tamil Nadu Assembly resolution to arrest editors of The Hindu for an editorial criticising then Chief Minister Jayalalithaa.The Bench may convene on Tuesday (October 6, 2026), as scheduled, for the sake of formality, but would not proceed to hear the reference on merits.The development came after senior advocate Raju Ramachandran, appearing for the Tamil Nadu Legislative Assembly, made an oral mentioning before a Bench headed by Chief Justice Surya Kant that the 2003 resolution was withdrawn the following year.Mr. Ramachandran said the order of reference to the Constitution Bench does not reflect this particular fact about yhe wothdrawal of the resolution.“It is not noticed [in the court’s order of reference in August],” Mr. Ramachandran submitted.‘Academic exercise’He said the referral order does not quite either party having mentioned the withdrawalbof the resolution in 2004 by the Legislative Assembly.He urged the Chief Justice to consider his preliminary objections against hearing the referral on the merits, saying it would only be an academic exercise.Chief Justice Kant said the court did not want to get into a prolonged academic exercise, particularly when several other part-heard matters were pending.Senior advocates Kapil Sibal and Amit Anand Tiwari, appearing for the petitioners, said the fact was indeed mentioned, but may not have been noticed.Mr. Sibal said the Tamil Nadu issue specifically “may be dead”, but the larger question of legislative privilege versus free speech was very much alive and relevant.Chief Justice Kant suggested the case could be kept formally open in the court, to be taken up when an occasion arises in future.The caseThe case travelled back to 2003 when The Hindu had published the editorial, prompting the Assembly Speaker at the time to pass a resolution in the House accusing the daily of having “distorted the proceedings of the Assembly, commented contrary to the events in the Assembly”.The resolution had said the comments made in the editorial “amounts to breach of privilege of the entire House” under Article 194 of the Constitution, which guarantees freedom of speech and immunities to Members of State legislatures. The Tamil Nadu State Assembly had passed a resolution to arrest the editorial staff of The Hindu.Shortly after the resolution, the police raided The Hindu’s Chennai office, attempting to arrest its senior editors. In November 2003, N. Ravi, the then Editor of The Hindu, approached the Supreme Court.When the case came up for hearing, senior advocate Harish Salve, appearing for the newspaper, had argued against the invocation of Article 194(3) to choke Press freedom enshrined under Article 19(1)(a) of the Constitution. The apex court had also examined the larger legal issue whether a critical speech or publication would constitute a breach of legislative privilege.However, a Division Bench of Justices Y.K. Sabharwal and B.N. Krishna had, on December 8, 2003, referred the tussle between legislative privilege and free speech to a five-judge Constitution Bench. The Bench had noted that the petitions and intervening applications, by journalists and the Press Council of India, raised “substantial questions of law as to the interpretation of Articles 194(3), 19 and the interplay between these two Articles and Article 21 of the Constitution”.A year later, on December 8, 2004, the five-judge Bench heard Mr. Salve’s submission that the apex court had given contradictory opinions in a 1959 judgment in Pandit MSM Sharma versus Shri Krishna Sharma and a Presidential Reference of 1964 about the interplay between free speech and the scope of legislative privileges.The five-judge Bench had further referred the case to a seven-judge Bench for an authoritative settlement of the law. Mr. Salve had submitted that the legal issue had wide ramifications and would crop up again in the future. He had argued that legislative privilege was to be used as a shield to protect speech of Members on the floor of the House from legal action, Article 194 was not meant to be wielded as a sword.The next order in the case was passed 19 years later, on October 12, 2023, when the Union government was impleaded as a party by a seven-judge Bench headed by then Chief Justice of India D.Y. Chandrachud in which the current CJI, Justice Kant, was a member. The Attorney General of India was requested to assist the apex court in the case. The petitions came up again on February 2, 2024 to hear a procedural application for change of advocate-on-record.The case had come up before Chief Justice Kant, on August 12, 2026, after a hiatus of over two years.