Karl Marx, in his contribution to Critique of Hegel’s Philosophy of Right, wrote about religion, calling it the opium of the people. This was a positive connotation, for during Marx’s time, opium was a drug used to numb pain (like Morphine).

Religion enables us to find peace within ourselves, and it serves as a moral compass for our lives. Therefore, all liberal democracies of the world guarantee the right to freedom of religion to individuals. In India, this right is conferred through Article 25 of the Indian Constitution.

Related: Right to Freedom of Religion Under the Indian Constitution

Article 25: The Constituent Assembly Debates

When Article 25 of the Indian Constitution was debated in the Constituent Assembly, a question was brought up. Would the right to ‘propagate’ facilitate forced conversion?

KT Shah (a member of the Constituent Assembly of India) opposed this vociferously and suggested that a proviso be added to Article 19(1). He suggested that no religious propaganda intended to convert individuals shall be allowed in schools, colleges, hospitals, or other institutions funded or supported by public resources, where vulnerable individuals may be influenced by authority figures.

LK Maitra (another member of the Constituent Assembly) countered KT Shah, saying that even in a secular state, religion remains essential, especially in this era of widespread irreligiosity. He believed that to restore lost values, it is crucial to have the freedom to share sincere beliefs. According to him, propagation doesn’t imply force, coercion, or the sword; it can be achieved through exposition, illustration, and persuasion. In short, he believed that the term ‘propagate’ should remain in our laws and not be removed.

KM Munshi (a member of the Constituent Assembly’s Drafting Committee) famously said:

“So long as religion is religion, conversion by the free exercise of conscience is to be recognized. The word ‘propagate’ in this clause is nothing very much out of the way as some people think, nor is it fraught with dangerous consequences.” (C.A.D. Vol. 7 pg. 837)

The current version of Article 25 (1) is a reflection of the argument the Constituent Assembly of India accepted. It reads:

“Subject to public order, morality, and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.”

To Convert or Not to Convert: The Dilemma

Anti-conversion laws have been at the centre of debates lately, with Karnataka all set to reverse its laws prohibiting conversion.

The debate around the constitutionality of such laws is never-ending.

One can trace its origin to pre-colonial laws such as the Raigarh Anti-Conversion Act of 1937. The rationale for the Raigarh law was that it would check the Christian missionaries’ attempts to proselytize (convert or attempt to convert from one religion to another).

Other such laws include the Surguja State Apostasy Act of 1942 and the Udaipur State Anti-Conversion Act of 1946.

Post-independence, the states passed many anti-conversion laws, and as expected, these were challenged in court. Out of the plethora of litigation involved, two events set the tone for the judicial response to these issues.

Madhya Pradesh legislature passed the Madhya Pradesh Dharma Swatantrata Adhiniyam in 1967, and in 1968, Orissa passed the Orissa Freedom of Religion Act. These laws shared a common feature: they banned religious conversion through the use of force, allurement, or fraudulently.

The Madhya Pradesh High Court upheld the Act (in Rev. Stanislaus vs State of MP), asserting that penalizing conversion through force, fraud, or allurement did not violate Article 25.

The Orissa High Court took a different stance, stating that the term ‘inducement’ was too vague and could not be included under the restrictions outlined in Article 25. Additionally, it ruled that the state legislature did not possess the authority to enact a law about religion. (Case: Yulitha Hyde vs State, 1973 A. Or. 116)

The Supreme Court of India decided to finally settle the debate in Rev. Stanislaus vs State of MP (1977 SCR 611) when the case came up before it.

Rev. Stanislaus vs State of MP (1977 SCR 611)

Rev. Stanislaus, a Christian priest from Madhya Pradesh, had challenged the Madhya Pradesh Dharma Swatantrata Adhiniyam of 1967. He contested the Act on two grounds. One was that the state legislature was not competent to make such a law, and two was that it violated Article 25. The Madhya Pradesh High Court upheld the constitutionality of the Act and dismissed the petition.

The case reached the Supreme Court of India, where Justice AN Ray considered the meaning of the word ‘propagate‘.

“The expression ‘propagate’ has been defined in the Shorter Oxford Dictionary to mean “to spread from person to person, or from place to place, to disseminate, diffuse (a statement, belief, practice, etc.)”

According to the Century Dictionary (which is an Encyclopaedic Lexicon of the English Language), ‘propagate’ means as follows:

“To transmit or spread from person to person or from place to place; carry forward or onward; diffuse; extend; as propagate a report; to propagate the Christian religion.”

Based on this definition, Justice Ray concluded what the Article provides. He opined that it is not a privilege to convert someone to one’s faith but to disseminate or promote one’s religion through an exposition of its principles.

The court then went forward to say that Article 25 (1) of the Constitution guarantees ‘freedom of conscience’ to all citizens. Based on this, the court concluded that there is no Fundamental Right to convert someone to your religion. Deliberately trying to convert someone, rather than just sharing your religious beliefs, would infringe upon the “freedom of conscience” for all citizens.

Essentially, the court held that the freedom to convert would violate the freedom of conscience guaranteed under Article 25(1). This is the stance till today: Freedom of religion does not include the freedom to convert.

Anatomy of the Judgment: Academic Criticism

In his commentary on the Indian Constitution, HM Seervai was very critical of the Supreme Court’s judgement in Rev. Stanislaus. He called this judgement ‘clearly wrong’ and ‘productive of the greatest public mischief’ and that it ‘ought to be overruled’.

According to Seervai, the line of reasoning adopted by AN Ray was dissatisfactory. Freedom of religion was not limited to the religion one is born into. The presence of freedom of conscience testifies that the choice of religion is not restricted.

Seervai writes:

“The right to propagate religion gives a meaning to freedom of choice (of religion), for choice involves not only knowledge but an act of will. A person cannot choose if he does not know what choices are open to him. To propagate religion is not to impart knowledge and to spread it more widely but to produce intellectual and moral conviction leading to action, namely, the adoption of that religion. Successful propagation of religion would result in conversion. Conversion does not in any way interfere with the freedom of conscience but is a fulfilment of it and gives a meaning to it.” (Oxford Handbook on the Indian Constitution, ‘Secularism and Religious Freedom by Ronojoy Sen)

However, the Stanislaus judgment has not been overruled and has continued to be the precedent for 46 years now.

Conclusion

In its substance, the Stanislaus judgement overlooks the intention of the makers of the Constitution of India. It also stands against the views of our freedom fighters. MK Gandhi, in 1940, famously said:

“No legal hindrance can be put in the way of any Christian or of anybody preaching for the acceptance of his doctrine”.

Gandhi, as a lawyer, would have lost the Stanislaus case given the line of reasoning adopted in the Stanislaus judgement.

Right to Convert Under the Right to Freedom of Religion in India
Tanzeel Islam Khan

“If liberty means anything at all, it means the right to tell people what they do not want to hear.”- George Orwell

Yuval Noah Harari mentions in his book Sapiens that humans rose to the top of the chain quickly because they could tell each other believable stories. We could communicate and spread our ideas, and this communication resulted in what Harari calls ‘flexible cooperation.’

Speech and expression appear to have played a massive role in the journey of humankind. It is, therefore, no coincidence that democracies guarantee freedom of speech and expression to their populace.

In one of its judgements, the US Supreme Court, highlighting the need for different opinions, said that “Compulsory unification of opinion achieves only the unanimity of the graveyard.”

The entire idea behind free speech is that the consent of the governed is never muzzled by the State and that authority must be controlled by opinions and not opinions by authority.

Thus, for obvious reasons, freedom of speech and expression was conferred upon the Indian citizens as a Fundamental Right under Article 19(1)(a) of the Indian Constitution. It guaranteed freedom of speech and expression under Article 19(1)(a) to all citizens. As exceptions, it allowed the legislature to impose restrictions on the grounds of libel, slander, defamation, contempt of court, and any matters offending decency or morality or which undermine the security of/tend to overthrow the State.

This article traces the Indian experience of the right to freedom of speech and expression.

Road to the First Amendment: The 3 ‘Triggering’ Cases

Article 19(2), containing reasonable restrictions that could be imposed on the rights under Article 19(1), was first amended as early as 1950. Some free speech cases decided by the courts are seen as its immediate cause.

Case 1. Romesh Thappar vs State of Madras (1950)

1st March 1950, a little over a month after the Constitution had come into force, the Supreme Court was confronted with questions about the domain of free speech in Romesh Thappar vs the State of Madras.

Romesh Thappar was an editor of ‘Cross Roads,’ a weekly magazine based in Bombay. The magazine was a staunch critique of the then Prime Minister, primarily his foreign policies. Coincidentally, the communist movement was on the rise at the same time in India, and Thappar was accused of being a communist and having ulterior motives behind his publications.

Thus, the Madras state government prohibited the circulation of ‘Cross Roads’ in the State, citing the Madras Maintenance of Public Safety Act, 1950. The Act allowed the government to restrict the distribution of publications for public safety and the maintenance of public order. This move was challenged directly before the apex court, and by a majority of 5-1, the court struck down the section in question.

The rationale behind the court’s verdict was that the terms ‘public safety’ and ‘public order’ were vague and cannot be construed as reasonable restrictions. [It must be noted that prior to the first amendment, these were no grounds for reasonable restrictions that could be imposed under Article 19 (2) of the Indian Constitution.) In its original form, Article 19(2) read ‘undermines the security of the state or tends to overthrow the State’.] The court took a rigid interpretation and held that restrictions on freedom of speech and expression would be legitimate only if they concern ‘undermining the security of the state or overthrowing of it.’

Case 2. Brij Bhushan vs State of Delhi (1950)

The Organiser was (and is) an English weekly run by the Rashtriya Swayamsevak Sangh (RSS). On 2nd March 1950, the Chief Commissioner of Delhi imposed prior restraints citing section 7(1)(c) of the East Punjab Public Safety Act, 1949. Abhinav Chandrachud (In his book, ‘The Republic of Rhetoric: Free Speech and the Constitution of India’) equates this Act with the prior restraints imposed by Dalhousie during the Fourth Mysore War.

The order stated that The Organiser was publishing content that was a threat to public law and order. While holding prior restraints as constitutional if they were in furtherance of the grounds mentioned under the ambit of Article 19(2), the court struck down the restraint on The Organiser.

Justice Fazal Ali’s Dissent

Justice Fazl Ali delivered dissenting judgments in both cases (Romesh Thappar vs State of Madras (1950) and Brij Bhushan vs State of Delhi (1950)), contending that the terms “sedition,” “public safety,” “public order,” and “undermining security” were interchangeable. His perspective was that any action that posed a threat to public order also had the potential to subvert and overthrow the State.

Case 3. Justice Sarjoo Prasad’s Observation in Shaila Bala Devi vs State of Bihar (1952)

Perhaps one of the most astonishing of all was the Patna High Court’s judgement in Shaila Bala Devi, where Justice Sarjoo Prasad observed that ‘if a person were to go on inciting murder or other cognizable offences either through the press or by word of mouth, he would be free to do so with impunity’ because it was apparently under the ambit of protected speech.

The government did not miss an opportunity to cock a snook at these judgements. The Prime Minister himself wrote to the law minister that the constitutional provisions needed to be amended. Accordingly, the first amendment to the Constitution was tabled. The Statement of Objects and Reasons to the Bill was signed by Nehru himself. It was indicative of the amount of disapproval the government had for these judgements. It read that the courts have construed freedom of speech and expression so broadly as ‘not to render a person culpable even if he advocates murder and other crimes of violence.’ The Statement of Objects and Reasons, according to Abhinav Chandrachud (Author, Republic of Rhetoric), was an ‘obvious reference to Justice Sarjoo Prasad’s judgment in Shaila Bala Devi.’

Free Speech After the First Amendment of the Indian Constitution

Lawrence Liang (a law professor at Ambedkar University, Delhi) points out the irony that while the First Amendment to the US Constitution recognized a right to free speech, the Indian version restricted it.

Criticizing the amendment in the house, Hridaynath Kunzru (a member of the Constituent Assembly) remarked that Article 19 was not being amended; it was being repealed. Despite some opposition, the amendment was passed in the Parliament.

As a result of the first amendment and subsequent amendments, Article 19 (2) now reads:

“(2) Nothing in sub-clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”

The word ‘incitement to an offence’ now removes the impunity to endorse murder. It gave the executive more teeth to deal with objectionable speech.

Scope of Free Speech Under Article 19(1)(a) of the Indian Constitution

The presence of free speech is reflective of the confidence a democracy has in its existence. There can be no free democracy without the consent of the governed, which can only be achieved through freedoms, particularly the freedom of speech and expression.

In another case, S Rangrajan vs P Jagjeevan Ram (1989), the court observed that “Democracy is government by the people via open discussion. The democratic form of government itself demands [from] its citizens an active and intelligent participation…”

The Supreme Court of India affirmed in Manubhai D Shah vs Life Insurance Corp India (1993) that a constitutional provision is ‘never static, it is ever-evolving and ever-changing.’ It suggested that a provision must never be interpreted through a ‘narrow, pedantic and syllogistic approach.’ The court itself adopted a dynamic approach in this case by expanding upon this principle when it said that ‘freedom of speech and expression’ should be interpreted expansively to encompass the liberty to communicate one’s opinions orally, in writing, or through audio-visual means.

How Free Is Free Speech – a Contemporary Analysis

“Freedom to air one’s views is the lifeline of any democratic institution, and any attempt to stifle, suffocate or gag this right would sound a death knell to democracy and would help usher in autocracy or dictatorship.” – Indian Supreme Court in Manubhai D Shah vs Life Insurance Corp (1993)

The Supreme Court and the High Courts of the country have always been committed to the protection of free speech. Barring a few exceptions, the courts have always been lauded as the guardian of Fundamental Rights, often sailing against the political tide. The courts have never kowtowed to the need for political correctness of free speech. They have upheld the right to hold and express an unpopular opinion. The court has used Article 19(1)(a) to initiate new rights, like the right to know, which was recognized in the State of UP vs Raj Narain (1975). Time and again, it has widened the scope of protection for free speech and expression.

In Raj Kapoor vs State (1980), when charges of obscenity were brought against the film Satyam Shivam Sundaram, the court came to the rescue of the artists. Justice VK Iyer remarked:

“The world’s greatest paintings, sculptures, songs and dances, India’s lustrous heritage, the Konaraks and Khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes and prigs and State moralists prescribe paradigms and proscribe heterodoxies.”

Likewise, in Maqbool Fida Hussain vs Raj Kumar Pandey (2008), the court held that the paintings by the legendary painter MF Hussain were not obscene. Justice Sanjay Kishan, in his verdict, considered art to be an important means of expression, and hence it was deemed to be protected under freedom of speech and expression.

Aseem Trivedi, a cartoonist, was arrested on charges of sedition for a cartoon that read Bhrashtameva Jayate, meaning Corruption alone triumphs, an obvious parody of the national emblem. Ordering his release, the Bombay High Court made stark observations against the Mumbai Police. It observed:

“Today, you attacked a cartoonist; tomorrow, you will attack a filmmaker; and then a writer. We live in a free society, and everyone has freedom of speech and expression.”

It is obviously not an equivalent to the US Supreme Court’s decision in the case of Johnson vs the State of Texas (1989), where a person desecrating the national flag was deemed to be exercising his right to free speech and expression.

Aseem Trivedi’s case, however, is another feather in the hat of a judiciary that has always been protective of Fundamental Rights.

The Supreme Court has gone to the extent of annulling legal provisions if they tend to abridge free speech and expression. Shreya Singhal vs Union of India (2015) was one such case, where section 66A of the Information Technology Act, 2000 was declared void because it violated Article 19(1(a). Section 66A of the IT Act, 2000, made it a punishable offence for any person to send ‘grossly offensive’ or ‘menacing’ information using a computer resource or communication device. The Supreme Court held that because of its vague and broad nature, it cannot be used to curb freedom of speech and expression.

The Shreya Singhal case opened new doors for the judiciary in the world of Internet and Artificial Intelligence. It provided a structure to build a fortress around the cherished right to freedom of speech and expression under Article 19(1)(a).

Conclusion

From Romesh Thappar to Aseem Trivedi, we see a common thread that there cannot be unlawful restrictions. The courts have made it clear that the right to free speech cannot be curtailed through unjust and unreasonable laws. The verdict of Shreya Singhal shows that the sky is the limit for a judiciary that is committed to preserving Fundamental Rights, particularly free speech and expression.

It is the presence of liberty to speak that distinguishes a democracy from a dictatorship. Shakespeare puts it in the mouth of Edgar in King Lear: “Speak what we feel, not what we ought to say,” just for us to understand the essence of free speech.

It is the right to say what we feel as against what we are expected to say; it is the right to offend at times when there appears to be a duty to offend.

Journey of Right to Freedom of Speech and Expression in India
Tanzeel Islam Khan

Parliamentary Privileges are special immunities available only to the members of the legislature (legislative members), while Fundamental Rights are guaranteed by the Constitution to every citizen and, in some cases, to non-citizens as well. At times, there have been conflicts between these two, and this law article discusses the result of such conflicts.

The Concept Behind Conferring Parliamentary Privileges

Ideally, lawmakers should be subjected to the laws which they create just as they would bind other citizens. But in light of their duties as a particular class of public officials, the concept of parliamentary privilege appears justified.

Sir Thomas Erskine May defined parliamentary privileges as:

“The sum of the peculiar rights enjoyed by each House collectively is a constituent part of the High Court of Parliament and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals.”

Thus, the purpose behind conferring privileges was to ensure certain immunities for the business of the House to be unfettered by fear or favour.

The will of the people, expressed through the election of their representatives, is supreme in a democracy. So, keeping the best interests of democracy in mind, the framers of the Indian Constitution included the concept of parliamentary privileges. In India, such privileges, under Article 105(4), also extend to individuals who have a right to speak and take part in the proceedings of the House or any of its committees.

Privileges Conferred Individually and Collectively: Article 105 and Article 194

Article 105 of the Indian Constitution defines parliamentary privileges enjoyed by the Parliament collectively and its members individually.

Article 194, which is a replica of Article 105, defines the privileges of the state legislature. Two privileges are defined by name; these include:

1. The freedom of speech and
2. The freedom of publication of proceedings.

The House may define other privileges from time to time, and until so defined, shall be those that were prior to the commencement of the 44th Amendment in 1978.

Parliamentary Privileges: Evolution and Status Quo

Despite the change in the terminology, other privileges are still those that were enjoyed by the British House of Commons at the commencement of the Constitution. However, only the privileges enjoyed by the House of Commons as legislature are available to the Indian legislature and not the ones enjoyed by the House of Commons as the judiciary. No privileges have been defined so far, so the powers and privileges of the Parliament are still those of the “British House of Commons at the commencement of the Constitution.” The Supreme Court has always referred to British precedents to adjudicate matters of a ‘breach of privilege’ of the Indian Parliament.

Article 105 mentions freedom of speech and freedom of publication of proceedings by name. These privileges include immunity from court proceedings for words said and vote cast or publications made by a member in furtherance of the business of the House.

Other privileges include freedom from arrest, the right to exclude strangers from the session, the right to prohibit the publication of debates, the right to regulate its composition with regards to vacancies, qualifications and disputed elections, or the expulsion of members.

The Parliament also has a right to regulate its internal proceedings, to adjudicate upon matters in the vicinity of the House, and to expel members when it deems necessary.

Finally, to safeguard its interests, the Parliament also has a right to punish members and strangers for breach of privilege or ‘contempt of the House’.

The Use and Abuse of Parliamentary Privileges

In August 1961, the Lok Sabha issued a notice to RK Karanjia, the editor of Blitz. This was for an article titled The Kripaloony Impeachment, which wrote about JB Kripalani’s criticism of the then Defence Minister. It was alleged that the article libelled an honourable member of this House and referred to him in a contemptuous and insulting manner. In attempts to diffuse the situation, the New Delhi correspondent of the magazine had to apologise to the House.

In 1984, the Legislative Council of Andhra Pradesh summoned Ramoji Rao, the editor of Eenadu. Mr Rao moved the Supreme Court, and it ordered a stay against his arrest. This order was disregarded by the Chairman of the Council, who directed the commissioner of police to produce Mr Rao before the Council. The court passed another order which restrained the commissioner from arresting Mr Rao. Surprisingly, the Council Chairman urged the commissioner to ignore this order too. Before the event could turn any uglier, NT Rama Rao, the Chief Minister, asked the Governor to prorogue the Council.

In another incident in 1987, the speaker of the Tamil Nadu assembly got S Balasubramaniam, the editor of Ananda Vikatan, imprisoned after condemning him unheard.

In all the above cases, we saw a direct conflict between Fundamental Rights and privileges. Some other cases that dealt with different perspectives of the relationship between these two are dealt forthwith below.

Balancing Fundamental Rights and Parliamentary Privileges: Article 19 (1)(a), Article 21, and Article 194

Generally, Fundamental Rights enjoy supremacy over any other provision of the Constitution. However, the very nature of parliamentary privilege is to make the members more equal than others, and because of the looming uncertainty over their codification, these have, at times, conflicted with Fundamental Rights. The courts have followed different rationales to identify if one prevails over another.

GK Reddy vs Nafeesul Hassan Case (1954 SC 636)

Homi Dinshaw Mistri (a deputy editor of the magazine Blitz) was arrested on charges of breach of privilege in Bombay and taken to Lucknow. He was detained for production before the speaker of the Uttar Pradesh Legislative Assembly. A Habeas Corpus petition was filed for his release under Article 32. It was alleged that Mr Mistri was not produced before a magistrate within twenty-four hours of arrest. The Attorney General admitted before the court that the allegations are well founded. This was required under Article 22(2) of the Constitution. Hence, the court accepted the Habeas Corpus petition and directed that Mr Mistri be released.

In this case, the privileges were overshadowed by the Fundamental right guaranteed under Article 22(2). However, this was not treated as a precedent by the court in The Searchlight Case.

MSM Sharma vs SK Sinha (1960 AIR 1186): The Searchlight Case

In Bennett Coleman & Co. & Ors vs Union of India (AIR 1973 SC 106), the Supreme Court declared that:

“Freedom of the press is the ark of the covenant of democracy because public criticism is essential to the working of its institutions.”

And this is the norm; freedom of the press has always been read into the freedom of speech and expression guaranteed under Article 19(2).

However, like every major norm, this also has exceptions, and the Supreme Court decided differently in 1960.

In MSM Sharma vs Sri Krishna Sinha, also known as the Searchlight Case, the court was confronted with the question of whether the right to freedom of the press prevailed over parliamentary privileges under Article 194.

In this case, a member of the Bihar Legislative Assembly had criticised the incumbent Chief Minister. Some accusing remarks were made that suggested that the Chief Minister had appointed ministers and made improper transfers of civil servants at the behest of a former industry minister. Questions were asked as to how this former minister had been appointed as the chairperson of the Bihar State Khadi Board just to get him accommodation in the state’s capital city. The speaker decided to expunge most of the references to the name of this former minister from the official records of the proceedings.

But in contravention, The Search Light, a newspaper, reported the contents of the speech and published the name of the former minister. The assembly issued a notice of breach of privileges to its editor and publisher for reporting the expunged remarks.

The editor decided to approach the Supreme Court under its writ jurisdiction. He argued that proceedings for the breach of legislative privileges would violate his right to ‘freedom of speech and expression’ (Article 19(1)(a)) and ‘personal liberty‘ (Article 21).

The court framed two legal questions, namely:

1. Whether the legislature could use its privileges to restrict reportage of openly conducted proceedings; and
2. Whether these privileges would prevail over the freedom of speech and expression of the petitioner?

The court observed that the House of Commons had the privilege of prohibiting the publication of even honest reports of the proceedings of the House. The majority upheld that the exercise of privileges can override the Fundamental Right to freedom of speech and expression under Article 19(1)(a). Thus, the court held that Article 19(1)(a) must yield to Article 194(3) as this was the only way of ‘reconciling’ the two.

Chief Justice CR Das also explained why the legislature is resistant to the codification of privileges. He held that if a ‘law’ codifies privileges, it would be subject to Fundamental Rights like any other ‘law’.

Justice Subba Rao dissented. He remarked that the House of Commons had no privilege of prohibiting honest reports of the proceedings of the House. He opined that the reasoning adopted by the court would ‘unduly circumscribe’ the cherished right to freedom of speech and expression.

The Searchlight Case opened a pandora’s box, one that was bound to unleash a tussle between the judiciary and the executive over parliamentary privileges.

Keshav Singh’s Case (Special Reference No 1 of 1964 AIR 1965 SC 745)

This decision can be seen as one where the court saw the need to ‘recapture the genie’ it had let loose in the Searchlight Case.

On 14 March 1964, the UP Assembly initiated privilege proceedings against Keshav Singh for circulating a pamphlet criticising a serving legislator. Later that day, the speaker issued an arrest warrant. This was because of his behaviour upon receiving the notice and a ‘disrespectful’ letter sent to the speaker. Keshav Singh was detained. He petitioned the Lucknow bench of the Allahabad High Court for a writ of habeas corpus.

A two-judge bench of the court directed his release the next day.

This was met with the heavy hands of the assembly, which issued a fresh notice of breach of privileges roping in the two judges, Keshav Singh, and even his lawyer. The notice required them to be produced in custody before the Assembly. Even Keshav Singh’s fresh detention was ordered after the initial period of detention.

The affected parties rushed to the Allahabad High Court, where a full bench of 28 judges issued an interim order restraining the assembly. The sorry state of affairs made the President seek an advisory opinion from the Supreme Court under Article 143(1).

The legal questions were focused on whether privileges can be invoked against acts done outside the House and whether they are open to judicial scrutiny. HM Seervai argued for the assembly that it had wide powers to define its privileges through resolutions, and MC Setalvad, appearing on behalf of the judges, argued that such acts of the legislatures are open to judicial scrutiny.

A special bench with 7 judges ruled by 6-1 that the content of Article 194(3) must ultimately be determined by courts and not legislatures.

The court made the following observations:

• The writ jurisdiction of the High Courts is not subject to parliamentary privileges.
• The right to move Supreme Court under Article 32 is not subject to privileges, and it is an ‘absolute right’.
• The guarantee of personal liberty under Article 21 applies when the legislature exercises its privileges. If a person alleges a violation of his right to life and personal liberty, the court will examine the merits of the contention as a duty. It will then be scrutinised by the court whether the liberty was taken according to the procedure established by law.
• The court also observed that it is not laying down a general rule that Fundamental Rights will always prevail over privileges. In para 127, it held, “As we have already indicated, we do not propose to enter into a general discussion as to the applicability of all the Fundamental Rights to the cases where legislative powers and privileges can be exercised against any individual citizen of this country, and that we are dealing with this matter on the footing that Article 19(1)(a) does not apply and Article 21 does.“

The Hindu and Murasoli Case

In another case, Tamil Nadu Legislative Assembly passed a resolution in 2003 directing the arrest and imprisonment of six employees of The Hindu and Murasoli, its sister publication.

They were directed to be arrested for fifteen days. This was in response to an editorial the newspaper carried titled Rising Intolerance. It also prohibited journalists of these newspapers from reporting the legislature’s proceedings for 15 days.

This editorial defended previous reports which had criticised Chief Minister Ms J Jayalalithaa for the use of strong language in her speeches.

The privilege committee recommended punitive steps, and a proceeding was initiated. The Supreme Court ordered a stay, and this unwarranted campaign was brought to a halt.

Conclusion and Suggestion

The Indian legislatures cite British precedents to justify their stance for initiating privilege proceedings. However, on 9 December 1975, Bernard Levin wrote in The Times (London) and pointed out the ‘curious passion the House of Commons seems to have for making a collective ass of itself’. Interestingly, no privilege proceedings were initiated by the House of Commons. We can only imagine how Levin would’ve been reprimanded and arrested for ‘contempt of the House’ in India.

This is exactly why in 1954, the first Press Commission proposed the codification of privileges owing to the ‘oversensitiveness of the legislature to honest criticism‘. We see the need to codify parliamentary privileges to prevent their abuse. The very purpose of conferring these privileges was that the will of the people find a voice in the House. What was conferred as a shield must not be used as a sword to stifle honest dissent against the government. Even the doctrine of harmonious construction also directs that the Fundamental Rights of the populace must prevail over the ‘privileges’ of the representatives they elect.

Relationship Between Fundamental Rights and Parliamentary Privileges in India
Tanzeel Islam Khan