On 10.03.2015, Markandey Katju (MK) published two posts on his Facebook page. One called ‘Gandhi – A British Agent‘, the other referred to Netaji Subhash Chandra Bose as an ‘Agent of Japanese Fascism’.
On 11.03.2015, Rajya Sabha unanimously passed the following ‘resolution’:
“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.”
MK was quick to respond in his blog, ‘Satyam Bruyat‘:
“O wonderful news ! The Rajya Sabha ( the Upper House of the Indian Parliament ) has passed a resolution condemning me !
But of course that is not enough. I must also be punished for what I said about that fake who is called the Father of the Indian Nation, and that agent of the Japanese Fascists. A mere censure is no punishment.
So some of them wanted to strip me of the perks and facilities I have as a Retired Supreme Court Judge. But then again that will require amendment of the rules, because after all I am indeed a Retired Supreme Court Judge.
May I make a humble suggestion to the Hon’ble Members of the House (because evidently they have run out of ideas). Just pass a resolution that immediately on my return to India I will be arrested and hanged, drawn and quartered. Without any trial. Na rahe baans na baje baansuri!”
On 12.03.2015, the following ‘resolution’ was passed in Lok Sabha:
“Father of the Nation Mahatma Gandhi and Netaji Shri Subhash Chandra Bose both are venerated by the entire country. The contribution of these two great personalities to the freedom struggle of the country and their dedication is unparalleled. The statement given by the Former Judge of 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.”
MK, then in America, sent e-mails to the Chairman, Rajya Sabha and to the Speaker, Lok Sabha:
“I therefore request both Houses of Parliament, through you, to recall the resolutions and apologize to me, or else to suspend the resolutions and give me an opportunity of hearing, personally or through my lawyer.”
The warning was clear in a few months:
“When the Houses of the Indian Parliament hurriedly passed unanimous resolutions condemning me for my statements about Gandhi and Bose, perhaps thinking that they had done a great deed (and perhaps their only deed, since they hardly have any meaningful debate or transact any meaningful business in the House, with all the shouting and regular disruptions), they overlooked one important fact—that I am from Allahabad.
And you don’t mess with people from Allahabad.”
Since no response was received, MK filed a petition under Article 32 seeks quashing of the Resolutions. In the alternative, it was also prayed that the Houses of Parliament be directed to give a post-decisional hearing.
The SC in Justice (Retd.) Markandey Katju v. The Lok Sabha & Anr., [Writ Petition (Civil) No. 504 of 2015] held recently,
“Freedom of Speech in Parliament is absolute and unfettered. It is subject only to such of the provisions of the Constitution which relate to regulation of procedure in Parliament. In so far as debates or discussion in the Houses of Parliament are concerned, the only substantive restriction found in the Constitution is in Article 121 of the Constitution which specifically mandates that no discussion shall take place in Parliament in respect of the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties. Barring such provision under Article 121, the Constitution has placed no restriction on what can be debated or discussed in Parliament. It is completely left to the wisdom or discretion of the individual Houses and the presiding authorities in terms of the Rules of Procedure of each House.
On certain occasions a citizen gets noticed or commented upon in debates or discussions in Houses. If the nature of opinions expressed by citizens or individuals pertain to matters of general public interest, it would certainly be within the powers of the House to have a discussion or debate concerning such opinions. So long as the debate or discussion is within the confines of the Rules, it will be expressly within the powers of the House to disapprove such opinions. No restriction is placed by the Constitution or the Rules of Procedure and none can be read in any of the provisions. It is true that a citizen or an individual may find himself in a situation where he has no way to reply to the discussion or a resolution passed by the concerned House. The concerned individual or citizen may also find himself in a position where the resolution is passed without giving him any opportunity of hearing. This definitely is a matter of concern and has engaged attention of the concerned in some countries. In what manner and to what extent can the citizen be protected and insulated is for the concerned Houses and Legislatures to decide. But in the absence of a clear provision, we cannot read any requirement of hearing.
We are not for a moment suggesting that the Petitioner could not or ought not to have made those statements. He is entitled to his views and put those views in public domain for consumption of public in general. The response by both Houses of Parliament was also natural in that the Resolutions in question dealt with his statements in public domain. All that the resolutions did was to condemn his remarks and did not refer to the conduct or character of the Petitioner. As stated earlier, the remarks made by the Petitioner regarding Mahatama Gandhi and Netaji Subhas Chandra Bose, which were in public domain, were touching subject of general public interest and as such could well be discussed in the Houses. The present resolutions do not inflict any penalty or visit the Petitioner with any civil consequences.
Concluding so, we do not find any merit in the petition, which is dismissed without any order as to costs.”
Simply put, these chain of events may repeat themselves, furthering ‘blow-for-blow’ jurisprudence.