SENIOR lawyer Fali S Nariman had argued several times before Justice Markandey Katju when the latter was a Supreme Court judge.
This time, the Supreme Court turned the tables on the retired judge as it requested Nariman to judge the worth of Justice Katju’s petition.
The former judge had moved the court for quashing Parliament’s resolution against him for his comments against Mahatma Gandhi and Subhash Chandra Bose.
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On Tuesday, the eminent jurist rejected Justice Katju’s views that the court should intervene to protect his right to free speech and trash the Parliament’s resolutions. Nariman told the apex court that Parliament has absolute immunity under the Constitution and that no court can question its proceedings.
Submitting a note as an amicus curiae, Nariman pointed out that a six-judge bench of the top court has already settled the law on this subject by declaring that Article 105 of the Constitution confers complete immunity in respect of “anything said…in Parliament”.
The Constitution Bench judgment in 1970 had asserted that the word “anything” is of the widest import and is equivalent to “everything”. “Once it was proved that Parliament was sitting and its business was being transacted, anything said during the course of the business was immune from proceedings in any court since this immunity is not only complete but it is as it should be,” the judgment said.
Nariman’s note reproduced the relevant paragraph in which the apex court had also underscored that people’s representatives in a parliamentary system of governance should be free to express themselves without fear of legal consequences — therefore, the courts must have no interference. Nariman referred to another judgment by the Supreme Court that had held the lawmakers’ freedom to speech under Article 105 as “absolute and unfettered”, whereas an individual’s right of freedom of speech under Article 19 was subject to reasonable restrictions.
The note was adduced before a bench led by Chief Justice T S Thakur, which observed that Justice Katju and his counsel, senior advocate Gopal Subramanium, should go through what Nariman had to say on the legal position. It also sought Attorney General Mukul Rohatgi’s views on the matter and fixed the petition for hearing on April 13.
In March 2015, both the houses had passed resolutions condemning the former Press Council of India chairperson for his blog posts in which he called Gandhi “a British agent” and Bose “an agent of Japanese facism”. Justice Katju claimed the resolutions curtailed his right of free speech and harmed his reputation. His petition also claimed the resolutions were passed “without jurisdiction” and “without giving him opportunity to be heard”.
When the bench heard this matter last August, Justice Thakur had remarked that the former judge “should be mentally prepared for his own criticism if he criticises others” and that “like he has a right to free speech, others also have a right to speak in criticism”.