Can legislative privilege override free speech? SC seven-judge Bench to settle law

The Supreme Court on Tuesday said a seven-judge Constitution Bench would commence hearing from October 6 a series of long-pending petitions questioning whether legislative privileges can override the fundamental right to freedom of speech and expression. The order was passed by a three-judge Bench headed by Chief Justice of India Surya Kant.

The case dates back to April 2003, when The Hindu newspaper published an editorial criticising the then Tamil Nadu Chief Minister Jayalalithaa. The Assembly Speaker at the time passed a resolution accusing the daily of having “distorted the proceedings of the Assembly, commented contrary to the events in the Assembly”. The resolution declared that the editorial amounted to a “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.

Shortly after the resolution, the police raided The Hindu’s Chennai office and arrested its senior editors. In November 2003, N. Ravi, the then Editor of The Hindu, approached the Supreme Court challenging the action.

During the initial hearing, senior advocate Harish Salve, appearing for the newspaper, argued against the invocation of Article 194(3) to suppress press freedom guaranteed under Article 19(1)(a) of the Constitution. He contended that legislative privilege was meant to be a shield to protect the speech of Members on the floor of the House, not a sword to punish criticism. The Supreme Court also examined the larger legal question of whether critical speech or publication constitutes a breach of legislative privilege.

On December 8, 2003, a Division Bench of Justices Y.K. Sabharwal and B.N. Krishna referred the matter to a five-judge Constitution Bench, noting that the petitions and intervening applications 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, the five-judge Bench heard Salve’s submission that the apex court had given contradictory opinions in a 1959 judgment (Pandit MSM Sharma v Shri Krishna Sharma) and a 1964 Presidential Reference on the interplay between free speech and legislative privileges. The five-judge Bench then referred the case to a seven-judge Bench for an authoritative settlement of the law, recognising that the issue had wide ramifications.

The case remained dormant for nearly two decades. On October 12, 2023, a seven-judge Bench headed by then Chief Justice D.Y. Chandrachud, which included the current CJI Justice Surya Kant, impleaded the Union government and requested the Attorney General to assist the court. The petitions were listed again on February 2, 2024 for a procedural application to change the advocate-on-record.

The case finally came up before Chief Justice Kant on August 12, 2026, after a hiatus of over two years. The court’s decision to set the hearing for October 6 marks a crucial step toward resolving a constitutional question that has lingered for over two decades.