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What Gopal Subramanium said for Markandey Katju to fight back against Fali, Rohatgi onslaught in Mahatma, Netaji case

'This case is not a case about Justice Katju at all and in fact it could be anyone,' Gopal Subramanium says hopefully (after Fali had hinted everything was always about Katju all the time)
'This case is not a case about Justice Katju at all and in fact it could be anyone,' Gopal Subramanium says hopefully (after Fali had hinted everything was always about Katju all the time)

Asking the Supreme Court to quash a resolution of Parliament is not a simple thing. That too in the face of eminent voices in the legal fraternity disapproving of such a plea.

Both Fali Nariman the day before yesterday, and the Attorney General, Mukul Rohatgi yesterday, found no merit in Katju’s writ petition seeking the quashing of the Parliamentary resolution against him, and told the Supreme Court that the resolutions are nothing more than a mere expression of disagreement with him, and that his freedom of expression has not suffered a bit because of the resolution.

Yesterday, the AG added another twist to the debate by asking if national heroes, like Mahatma Gandhi and Netaji Subhash Chandra Bose are going to be vilified by persons who served in the Supreme Court, who would inspire the younger generation. Therefore, the resolution passed by Parliament was a welcome corrective to Katju’s remarks, he suggested.

Gopal Subramanium’s submission was essentially about freedom of speech and expression and Constitutionalism. It was submitted by Subramanium that Parliament has no jurisdiction to take cognizance of a comment made by an individual citizen. Parliament as an institution is not expected to take notice of comments made by citizens, he said.

He distinguished the case of Tej Kiran Jain cited by Fali Nariman wherein remarks against Shankaracharya were made by some members of Parliament and they were then sued for defamation by Tej Kiran Jain and others. The suit was dismissed by the Delhi high court and its dismissal was upheld by the Supreme Court as per Article 105(2).

Subramanium submitted that, admittedly MPs cannot be sued for speeches made on the floor of the house which enjoy absolute immunity under Article 105(2) of the Constitution.

He submitted that whereas the privilege to pass resolution falls under Article 105(3) of the Constitution, after Raja Ram Pal and Captain Amrinder Singh it has been settled that actions taken under Article 105(3) of the Constitution are not beyond the pale of judicial review if there is a violation of fundamental right.

He further argued that there was in law a distinction between speeches made or thing done by the member and those done by the House, and the distinction is of vital importance.

Subramanium submitted that a person has right to express his views fearlessly, without there being any threat of condemnation by any authority or being dissuaded by possibility of any reprisal by any person, including being institutionally condemned.

He submitted that the Constitution does not contemplate that Parliament would even take cognizance of expression of opinions by individuals who are not speaking in their official capacity.

In fact, Rules framed by the House under Article 118 of the Constitution also contemplate that resolution could be passed in respect of conduct of officials in discharge of public duties. For instance, Rule 157 of the Rajya Sabha Rules of Procedure and Conduct of Business provides that a resolution “shall not refer to the conduct or character of persons except in their official or public capacity”. By implication, passing of resolutions against private citizens is barred, Subramanium suggested.

Subramanium thus submitted that the resolutions condemning Justice Katju’s statements were without jurisdiction and hence judicially reviewable as per the law laid down in the Raja Rampal Case.

Subramanium asked whether it would be legal for the judiciary as an institution to take a stand in respect of debated historical fact and then condemn an individual unheard.

He reasoned that it was not necessary for functioning of Parliament to condemn Justice Katju’s remark, and hence, question of claim of Parliamentary privilege does not arise.

Subramanium also submitted that unanimous deprecation by Parliament inevitably has a chilling effect and may prevent others from freely expressing their opinion. He submitted that there was serious affront to academic independence and academic freedom, and such condemnation affects free thinking and expression.

He drew attention to the fact that various other persons had been critical of Mahatma Gandhi as well.

Subramanium referred to the Devidas Ramchandra Tuljapurkar case (decided on 14 May, 2015), in which Justice Dipak Misra, in a case dealing with an alleged obscene poem concerning Mahatma Gandhi, had held:

93. There can be no two opinions that one can express his views freely about a historically respected personality showing his disagreement, dissent, criticism, non-acceptance or critical evaluation.

Subramanium had submitted that even though the word ‘censure’ has not been used in the resolution, even then, use of strong words in the resolution amounted to it.

Both the AG and the amicus curiae Nariman had conceded that this was not a case of censure as notice would have been issued if it were, and it was explained that the resolution was only a ‘strong disagreement’ which had ‘pained’ the legislators leading them to pass the resolutions.

Subramanium submitted that Parliament’s privilege to express opinion did not extend to expressing opinion in respect of remarks of a private person.

In the very first hearing, responding to Justice Thakur’s query on violation of fundamental rights, Subramanium had explained that “this case is not a case about Justice Katju at all and in fact it could be anyone”.

It is a case that requires Supreme Court to define the relationship between Parliament and an individual citizen in the framework of the Constitution with reference to freedom of speech.

Subramanium’s plea, on the face of it, appears very ambitious. Will the Supreme Court oblige him and Justice Katju?

Wait and see.

The judgment has been now been reserved.

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