Seven-judge Bench to hear if legislative privilege overrides free speech

The Supreme Court has said a seven-judge Constitution Bench would commence hearing from October 6 a series of long-pending petitions questioning whether legislative privileges can override citizens’ fundamental right to freedom of speech and expression.

A three-judge Bench headed by Chief Justice of India Surya Kant passed the order in a case travelling back to April 2003. The Hindu had published an editorial criticising then Tamil Nadu Chief Minister Jayalalithaa.

The Assembly Speaker at the time had passed 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 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, arresting 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, argued against the invocation of Article 194(3) to choke Press freedom enshrined under Article 19(1)(a) of the Constitution. The apex court 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, for The Hindu, 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 came up before Chief Justice Kant, on August 12, 2026, after a hiatus of over two years.