20-year-old legislative privilege reference closed as infructuous

New Delhi: The Supreme Court on Tuesday closed a nearly 20-year-old seven-judge Constitution bench reference on the interplay between legislative privilege and the fundamental right to freedom of speech and expression, holding that the proceedings had become infructuous after the Tamil Nadu legislative assembly withdrew the resolution that had triggered the case.

A bench of Chief Justice of India Surya Kant and justices Aravind Kumar, PK Mishra, Joymalya Bagchi, Vipul Pancholi, Shree Chandrashekhar and V Mohana disposed of the writ petitions without deciding the larger constitutional questions, leaving them open for determination in an appropriate future case.

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The reference arose from the Tamil Nadu assembly's November 7, 2003, resolution, sentencing journalists associated with The Hindu to 15 days' simple imprisonment for alleged breach of privilege and contempt following publication of articles and editorials critical of the then state government.

The journalists approached the Supreme Court, which stayed their arrest. The matter raised the larger question of the extent of legislative privileges under Article 194 (3) and their relationship with the fundamental right to freedom of speech and expression under Article 19 (1) (a), as well as Article 21.

The matter was initially referred to a five-judge Constitution bench in December 2003. The five-judge bench subsequently found conflicting views in earlier judgments on the relationship between legislative privileges and fundamental rights and referred the questions to a seven-judge bench for authoritative determination. The reference, however, never reached a determination on those questions.

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The seven-judge bench noted that the Tamil Nadu assembly had on July 30, 2004, unanimously resolved to withdraw its November 7, 2003, resolution against the petitioners. The court observed that this subsequent development "was not specifically brought to the notice of this court" and had "escaped notice" when the reference was made.

With the earlier resolution having been withdrawn, the court held that the cause of action no longer survived. "The writ petitions are disposed of as having become infructuous. However, the questions of law are kept open to be pursued in future in appropriate proceedings," the bench ordered.