Ex-judge of the Supreme Court and former Chairman of the Press Council of India, Justice Markandeya Katju has moved the Supreme Court through a writ petition seeking quashing of the Resolutions dated 11.03.2015 & 12.03.2015 passed by the Rajya Sabha & the Lok Sabha respectively condemning his comments on Mahatma Gandhi and Netaji Subash Chandra Bose, claiming that Parliament lacks the competence and authority to pass the impugned Resolutions condemning the act of the Petitioner.
Justice Katju has taken exception to “the passage of the resolution condemning a statement, without even placing in its entirety before the respective houses of Parliament and without even giving the Petitioner an opportunity of being heard” and said that the same “is both arbitrary and in denial of natural justice.”
Justice Katju has contended in his petition that the rule against passage of a resolution against the conduct or character of a private individual is present because the Houses of Parliament ought not to be concerned with the conduct or comment of individuals, and that this rule further implies that despite this embargo, in case such a resolution in relation to conduct or comment of a private individual is sought to be passed, such a private individual is at least put to notice and heard.
Justice Katju had posted in his face book page and blog in March earlier this year that “Gandhi was objectively a British agent who did great harm to India," and “by constantly injecting religion into politics continuously for several decades, Gandhi furthered the British policy of divide and rule." He said Gandhi "successfully diverted the freedom struggle from this revolutionary direction to a harmless nonsensical channel called Satyagrah."
Justice Katju had also described Netaji as a "Japanese agent" in his blog site and said, "In fact Bose was being used by the Japanese, and they would have bumped him off the moment his utility for them was over. He was no doubt a brave and personally honest man, but he had become an agent of Japanese fascism."
The said statements of Justice Katju were roundly denounced by members of both the Houses of Parliament cutting across political divide. .
"This House expresses its unequivocal condemnation of the recent remarks of the former judge of the Supreme Court, Shri Justice Markandey Katju, against the Father of the Nation Mahatma Gandhi and Netaji Subhash Chandra Bose who led the Indian National Army for the freedom of the country," read the resolution, read out by Chairman Hamid Ansari in the Rajya Sabha on March 11, 2015.
The next day, that is on March 12, 2015 a similar resolution was passed in the Lok Sabha condemning Justice Katju’s comments:
“Father of the Nation Gandhiji and Netaji Shri Subhash Chandra Bose both are venerated by the entire country. The contribution of these two great personalities and their dedication is unparalleled. The statement given by former Judge of the Supreme Court and former Chairman of Press Council of India Shri Markandey Katju is deplorable. This House unequivocally condemns, the statement given by former Judge of Supreme Court Shri Markandey Katju unanimously.”
Justice Katju has challenged the said Resolutions passed by Parliament in the Supreme Court on the ground that the impugned Resolutions do not fulfil the jurisdictional requirement, and the necessary jurisdictional facts are lacking. “The present case is not a case of mere procedural irregularity. Further, whether or not the Petitioner’s statement are deplorable or condemnable can only be judged by bodies performing judicial function and cannot be decided by the Lok Sabha or the Rajya Sabha,” the petitioner contends.
Justice Katju elaborating on his argument that the jurisdictional requirements are not met in his case avers in his writ petition filed under Article 32 of the Constitution that the said resolutions passed by the Rajya Sabha & the Lok Sabha are in violation of the Rules for Procedure and Business framed by both the houses of Parliament under Article 118 of the Constitution.
Justice Katju has further averred in his writ petition that the Speaker of the Lok Sabha and the Chairman of the Rajya Sabha are not competent to take cognizance of the expressions of free speech of the private person like the Petitioner, as the power under Rule 171 of the Lok Sabha Rules provides that the Resolution must relate to act of Government. In any event, the Houses of the Parliament ought not to take cognizance of academic discussions or seeds of academic discussions in public about issues confronting India’s history.
Rule 172 of the Rules of Procedure and Conduct of Lok Sabha only permits resolution in the matter of ‘general public interest’ and the works of the Petitioner reflected in the posts relate to his academic analysis which are not of general public interest.
Justice Katju anticipating a defence based on Article 105 of the Constitution seems to pre-empt the same by claiming that the impugned Resolutions are not immune from judicial review as that the power to pass resolution as in the instant case, is not a power which depends upon and are is necessary for the conduct of the business of each House, and is therefore not protected under Article 105. He further avers, “the power and privilege under Article 105 is subject to other provision of the Constitution and subject to Article 118 i.e. rules made thereunder. Since, the Rules as stated above do not contemplate passing of a resolution against a private person not holding an official position, the Resolution cannot claim any immunity from judicial review. In the instant case, the question of claim of privilege does not arise at all.”
Justice Katju has also assailed the Resolutions passed by both Houses of Parliament on the ground that the impugned Resolutions have been wrongly admitted by Speaker and Chairman respectively in quasi-judicial capacity, without first complying with the substantive legal pre-condition of hearing the affected party, “and they also lack the fundamental condition. The Speaker of Lok Sabha (Rule 174) and the Chairman of Rajya Sabha (Rule 158) has been permitted by the respective Rules to decide on whether the Resolution is admissible, and the exercise of such power is not only quasi-judicial function but is also amenable to judicial review.”
Referring to Article 19 (1) (a) of the Constitution (Right to Freedom of Speech & Expression), he further contends that the comments made by the Petitioner on his face book page “would definitely not fall under any of the defined categories for which ‘reasonable restrictions’ could have been placed, thereby making the passing of the aforesaid resolutions an illegal curtailment of the Petitioners’ right to freedom of speech & expression.”
Drawing attention of the Court to the ratio of the recent judgment of the Supreme Court in Shreya Singhal v. UOI, Justice Katju claims that “the same is squarely applicable to the present case and the right of reputation and freedom of speech and expression cannot be taken away in the manner in which the Respondent has done so.”
“Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in and it is only at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, etc.”
Justice Katju has also pointed out that his comments did not transgress the legal threshold of his right to freedom of speech and expression. He avers that his comments are “definitely not something that was grave enough to cause public disorder or tends to cause or tends to affect the sovereignty & integrity of India, the security of the State, friendly relations with foreign States.”
Justice Katju further avers in his petition : “the only test to curtail the freedom of speech and expression can be if it falls within any of the exceptions to Article 19 (2) of the Indian Constitution, and not whether any person found it offensive or insulting. By passing the aforesaid Resolutions, the Parliament has evidently disregarded the presence of these fundamental freedoms, developed through the enunciations of this Hon’ble Court.”
Justice Katju has justified his comments on Mahatma Gandhi and Netaji Subhas Chandra Bose claiming that what he has stated “is not new but draws from well-researched view that many noted historians have already taken on these two historical figures. One may agree or disagree with this view, but it is humbly submitted that there is no reason to condemn this view by the Parliament.”
On these and other grounds, Justice Katju has sought the quashing the Impugned Resolutions in respect of the Petitioner passed by the Lok Sabha on 12.3.2015 and the Rajya Sabha on 11.3.2015, and in the alternative, for a direction from the court to the Speaker of the Lok Sabha and Chairman of the Rajya Sabha to give the Petitioner a post decisional hearing either himself or through his duly designated lawyer(s).