Legislative privilege vs free speech: SC may not hear on merits after TN assembly says resolution withdrawn

A seven-judge constitution bench may not begin hearing on October 6 questions on whether legislative privilege can override freedom of expression arising from a 2003 resolution by the Tamil Nadu assembly to arrest editors of The Hindu for an editorial criticizing then-Chief Minister Jayalalithaa.

The Bench meets on Tuesday (October 6, 2026) as scheduled for formalities but will not continue hearing the reference on merits.

The development came after senior advocate Raju Ramachandran, appearing for the Tamil Nadu legislature, made an oral mention before a bench headed by Chief Justice Surya Kant that the 2003 resolution was withdrawn the following year.

Mr. Ramachandran said that the referral order to the Constitution Committee did not reflect this particular fact about the withdrawal of the resolution.

“It was not noted (in the court decision in August),” Mr Ramachandran said.

“Academic Exercise”

He urged the Chief Justice to consider his preliminary objections to hearing the matter on its merits as it would be merely an academic exercise.

Chief Justice Kant said the court did not want to engage in a lengthy academic exercise, especially when several other partially heard matters were pending.

Senior advocates Kapil Sibal and Amit Anand Tiwari, appearing for the petitioners, submitted that this fact was indeed mentioned but may not have been recorded.

Mr. Sibal said the issue of Tamil Nadu specifically “may be dead” but the broader issue of legislative privilege versus freedom of speech was very much alive and relevant.

Chief Justice Kant suggested that the case could be kept formally open in court to deal with when the opportunity arose in the future.

Case

The case went back to 2003 when The Hindu published an editorial, prompting the then Speaker of the Assembly to pass a resolution in the House accusing the daily of “misrepresenting the proceedings of the Assembly and speaking contrary to the happenings in the Assembly”.

The resolution said the comments made in the editorial “amount to a violation of the privileges of the entire House” under Article 194 of the Constitution, which guarantees freedom of speech and immunity to members of state legislatures. The Tamil Nadu state assembly passed a resolution to arrest the editor of The Hindu.

Shortly after the resolution, the police raided The Hindu’s Chennai office and tried to arrest its senior editors. In November 2003, N. Ravi, then editor of The Hindu, approached the Supreme Court.

When the case came up for hearing, Senior Advocate Harish Salve, appearing in the newspaper, argued against the use of Article 194(3) to curtail the freedom of the press enshrined in Article 19(1)(a). a) of the constitution. The Supreme Court also examined the larger legal issue of whether critical speech or publication would constitute a breach of legislative privilege.

However, a Division Bench of Justices YK Sabharwal and BN Krishna on 8 December 2003 referred the tussle between legislative prerogatives and freedom of speech to a five-judge constitution bench. The Bench observed that the petitions and cross-applications by journalists and the Press Council of India raised “substantial questions of law regarding the interpretation of Article 194(3), Article 19 and the interplay between the two Articles and Article 21 of the Constitution”.

A year later, on December 8, 2004, a five-judge bench heard Mr. Salve’s contention that the Supreme Court had taken conflicting views in the 1959 judgment in Pandit MSM Sharma versus Shri Krishna Sharma and the 1964 Presidential Reference on the interplay between freedom of expression and the scope of legislative prerogatives.

The five-judge Bench further referred the case to a seven-judge bench for authoritative disposal of the law. Mr. Salve said the legal issue has broad implications and will resurface in the future. He argued that legislative privilege was to be used as a shield to protect speech by MPs on the floor of the House from legal action, Article 194 was not to be used as a sword.

The next order in the case was passed 19 years later, on 12 October 2023, when the Union government was impleaded as a party by a seven-judge bench headed by the then Chief Justice of India DY Chandrachud, whose member included the current CJI, Justice Kant. The Attorney General of India was asked to assist the Supreme Court in the case. The petitions reappeared on February 2, 2024, to hear the procedural request to change the law clerk.

The case came before Chief Justice Kant on 12 August 2026 after a gap of more than two years.

Published – 5 Oct 2026 12:49 PM IST