June,29,2015: Unhappy with the way the Parliament unanimously condemned him for his comments on the Mahatma Gandhi and Subhas Chandra Bose, former Supreme Court Justice Markandey Katju has taken the Indian Parliament to court.
His writ petition filed through former Solicitor General of India Gopal Subramaniam names the Lok Sabha Speaker, Rajya Sabha Chairman as well as the general secretaries of the two houses.
“It is a basic principle of natural justice that no one should be condemned unheard. But paying scant regard to this principle, the Hon’ble members of both Houses of the Indian Parliament all flocked together with one voice to condemn me, like the Queen of Hearts in ‘Alice in Wonderland’ who would say ‘Off with his head !’ even before she would give a hearing to someone,” Justice Katju said in a blogpost.
The post also has a copy of the writ petition under Article 32 Constitution of India filed in the apex court.
“The statements given by the Petitioner, as a private person, are academic in nature and are in fact a manifestation of scientific temper of a citizen. It is submitted that scientific temper is a way of thinking and acting which uses a method. It may include observing physical reality, questioning, testing, hypothesizing, analysing, and communicating,” he submits in the petition.
He claims the Impugned Resolution in the Houses “do not fulfill 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,” he adds.
Text of Justice Markandey Katju's Petition-
IN THE SUPREME COURT OF INDIA
Original Civil Jurisdiction
Writ Petition (Civil) No.________ of 2015
(A petition under Article 32 Constitution of India)
IN THE MATTER OF:
POSITION OF PARTIES Before the Supreme Court
Justice Markandey Katju, S/o Late Justice S N Katju, Age: 69 Years, Petitioner
1. The Hon’ble Speaker, Lok Sabha (Representing the Lok Sabha), 17, Parliament House New Delhi-110001 Respondent No. 1
2. The Hon’ble Chairman, Rajya Sabha (Representing the Rajya Sabha), 30, Parliament HouseNew Delhi-110001 Respondent No. 2
3. The Secretary General, Lok Sabha, 18, Parliament House, New Delhi-110001 Respondent No. 3
4. The Secretary General, Rajya Sabha,29, Parliament House, New Delhi-110001 Respondent No. 4
(A writ petition under Article 32 Constitution of India)
The Hon’ble the Chief Justice of India
And His Companion Justices of the
Hon’ble Supreme Court of India.
The Writ Petition of the Petitioner above named
MOST RESPECTFULLY SHEWETH:
1. That, the Petitioner has invoked the jurisdiction of this Hon’ble Court under Article 32 of the Constitution of India, inter-alia, seeking quashing of the Impugned Resolutions dated 11.03.2015 & 12.03.2015 that have been passed by the Rajya Sabha & the Lok Sabha respectively and are clearly in contravention of the fundamental rights guaranteed by the Constitution that have been consistently upheld and expanded upon by this Hon’ble Court. The Petitioner, thus, has been seriously prejudiced causing grave and irreparable harm to his reputation and life’s endeavour to uphold the Constitution and the rule of law, and in these circumstances, is not left with any other remedy but to approach this Hon’ble Court. Hence this Writ Petition.
1A. That, the Petitioner addressed a representation via email to the Hon’ble Speaker of the Lok Sabha and the Hon’ble Chairman of the Rajya Sabha on 23.03.2015, highlighting that even though the hearing prior to the passage of resolution against his statement was denied to him, at-least the post decisional hearing be granted to him. However, the Petitioner has received no response thereto. The Petitioner has no other alternative or equally efficacious remedy except the instant Writ Petition. That further, at the time the resolutions were passed, the Petitioner was not physically present in India, and has not returned to India as of the date of filing of this petition and therefore the affidavit in support of this petition is being filed by the Petitioner’s next friend present in India.
2. That, the Petitioner who has a keen interest in academics, Sanskrit, Urdu, History, Philosophy, Science, Sociology, and Jurisprudence, and has written several books, articles, papers in relation to these subjects and publish two posts on his face book page, as also on his blog on 10.03.2015 in respect of Gandhiji and Netaji Subhash Chandra Bose.
3. That, the post in respect of Gandhiji in short made the point that by constantly using religious symbolism in politics for several decades, Gandhiji, in effect furthered the British Policy of Divide and Rule by alienating the Muslim population of the Indian sub-continent away from the national movement. A true typed copy of the post published by the Petitioner on his face book page on 10th March, 2015 in respect of Gandhiji is annexed herewith as Annexure P-1 (Pages ___ to ___).
4. That, the post in respect of Netaji Subhash Chandra Bose, in short made the point that through his actions knowingly or unknowingly, he ended up perpetuating Japanese imperial interest in the Indian sub-continent. A true typed copy of the post published by the Petitioner on his face book page on 10th March, 2015 in respect of Netaji Subhash Chandra Bose is annexed herewith as Annexure P-2 (Pages ___ to ___).
5. The statements given by the Petitioner, as a private person, are academic in nature and are in fact a manifestation of scientific temper of a citizen. It is submitted that scientific temper is a way of thinking and acting which uses a method. It may include observing physical reality, questioning, testing, hypothesizing, analysing, and communicating. In fact, Jawaharlal Nehru was one of the first persons to use the term ‘scientific temper’ and advocate the promotion of scientific temper:
"What is needed is the scientific approach, the adventurous and yet critical temper of science, the search for truth and new knowledge, the refusal to accept anything without testing and trial, the capacity to change previous conclusions in the face of new evidence, the reliance on observed fact and not on pre-conceived theory, the hard discipline of the mind—all this is necessary, not merely for the application of science but for life itself and the solution of its many problems",
(Discovery of India)
Inculcation of scientific temper has since been included as a fundamental duty in Article 51-A (h)
“to develop the scientific temper, humanism and spirit of inquiry and reform;”
The Constitution of South Africa (1997) explicitly provides "Everyone has the right to freedom of expression, which includes…. academic freedom and freedom of scientific research." This to be read along with Article 51-A (h) of the Constitution of India, which embodies similar foundational values.
That, academic freedom to explore significant and controversial questions is an essential precondition to fulfil the mission of educating and advancing knowledge. Academic freedom is necessary not only for faculty members in formal teaching setup but is also necessary for every citizen pursuing spirit of inquiry so that he or she can contribute to the society. The clash of competing ideas is an important catalyst, not only for the expansion of knowledge but also in development of independent critical judgment. Academic freedom encourages new knowledge, different perspectives, competing ideas, and alternative claims of truth, and therefore, to straightaway condemn a person reaching an alternative conclusion on the basis of his personal study is Constitutionally impermissible. It is acknowledged that breadth of knowledge and sophisticated habits of mind, liberal education is the best and most powerful way to build students’ capacities to form their own judgments about complex or controversial questions. In fact, the approach being taken by the Respondents is not conducive to liberal and strong academic growth in the country.
6. That in Devidas Tuljapurkar v. State of Maharashtra & Ors, Criminal Appeal No. 1179 of 2010 (dated 14th May, 2015), this Hon'ble Court has been pleased to hold as under:
“92. Some of these books praise Gandhiji, analyse Gandhian thoughts, criticise Gandhian philosophy, express their dissent, disagree with his political quotient and also comment on his views on “Brahamcharya”. On reading of the said books, one can safely say they are the views of the authors in their own way and there is no compulsion to agree with the personality or his thoughts or philosophy. We are reminded of what Voltaire said, “I do not agree with what you have to say, but I’ll defend to the death your right to say it” or for that matter what George Orwell said, “If liberty means anything at all, it means the right to tell people what they do not want to hear”.
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.”
Hence, there cannot be any doubt that the Petitioner has not committed any deplorable act in expressing his considered views about Netaji and Gandhiji and the impugned resolutions are liable to be quashed.
7. That, on 11.03.2015 some members of the Upper house of the Indian Parliament i.e. Rajya Sabha raised an issue in respect of these post in the house, inter-alia seeking action against the petitioner herein, and also seeking condemnation of the statement made by the Petitioner herein. It appears from the perusal of these proceedings that the entire statements/post of the Petitioner herein were not even formally placed before the house for its consideration. It is further apparent that neither of the Houses were informed about the view taken by various other scholars.
A true typed copy of the proceedings of the Rajya Sabha on 11th March, 2015, in so far as they relate to the face book post/statement made by the Petitioner herein is annexed herewith as Annexure P-3 (Pages ____ to ____).
8. That, pursuant to the discussion in the Rajya Sabha, the following resolution condemning statement of the Petitioner herein was passed unanimously by the Rajya Sabha on 11th March, 2015.
“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 Gandhiji and Netaji Subhash Chandra Bose who led the Indian National Army for the freedom of the country.
A true typed copy of the resolution of the Rajya Sabha dated 11th March, 2015 condemning the statement of the Petitioner herein is annexed herewith as Annexure P-4 (Pages _____ to _____).
9. That, on the very next day after the passage of the said resolution in the Rajya Sabha, i.e. on 12.03.2015 members of the Lok Sabha also sought action against the Petitioner herein, and condemnation of his statement. A true typed copy of the discussion in the Lok Sabha dated 12.03.2015 in respect of the Petitioner’s statement/face book post is annexed herewith as Annexure P-5 (page_____ to _____).
10. That, later on the same day i.e. 12.03.2015 the Lok Sabha passed following statement condemning the statement of the Petitioner.
“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.”
A true typed copy of the resolution dated 12.03.2015 passed by the Lok Sabha condemning the statement of the Petitioner herein is annexed herewith as Annexure P-6 (Page ____ to _____).
11. That, the above resolutions passed without jurisdiction by the Rajya Sabha and Lok Sabha without giving the Petitioner an opportunity to be heard, has caused the violation of the Petitioner’s rights under Article 14, 21 and 19 (1) (a) of the Constitution of India. The views expressed by the Petitioner, in particular on Gandhiji’s use of religious symbolism in politics, have been espoused by many historians, etc. in their works. The relevant extract from some of these works is annexed herewith.
(a) True typed copy of the relevant extract from R.P. Dutt: INDIA TODAY, Peoples Publishing House, 10th Edn. 2008, Preface and Pg. 470-472 is annexed herewith as Annexure P-7 (Page ___ to ___).
(b) True typed copy of the extract from Vinay Lal: THE GANDHIJI EVERYONE LOVES TO HATE, Economic & Political Weekly, October 4, 2008 is annexed herewith as Annexure P-8 (Page ____ to _____).
(c) True typed copy of the extract from Jawaharlal Nehru, AN AUTOBIOGRAPHY, Penguin India (2004) Page 78-79 is annexed herewith as Annexure P-9 (Page ____ to _____).
(d) True typed copy of the extracts from H.M. Seervai, “PARTITION OF INDIA: LEGEND AND REALITY"; Oxford University Press (1994) is annexed herewith as Annexure P-10 (Page ____ to _____).
(e) True typed copy of the extracts from the work Robert D Baird, “The Convergence of Distinct Worlds: Nehru & Gandhi” Pg. 19-39 in Harold Coward (ed.), Critiques of Gandhi, Suny Press (2003) is annexed herewith as Annexure P-11 (page ____ to ______)
(f) True typed copy of the extracts from the work Timothy Gorringe, “Gandhi & the Christian Community” Pg. 153-169 in Harold Coward (ed.), Critiques of Gandhi, Suny Press (2003) is annexed herewith as Annexure P-12 (page ____ to ______)
(g) True typed copy of the extracts from the work Nikky Guninder Kaur Singh, “The Mahatma & the Sikhs” Pg. 171-191 in Harold Coward (ed.), Critiques of Gandhi, Suny Press (2003) is annexed herewith as Annexure P-13 (page ____ to ______)
(h) True typed copy of the extracts from the work Roland E. Miller, “Indian Muslim Critiques of Gandhi” Pg. 193-126 in Harold Coward (ed.), Critiques of Gandhi, Suny Press (2003) is annexed herewith as Annexure P-14 (page ____ to ______)
12. That, the Petitioner wrote to the Hon’ble Speaker of the Lok Sabha and the Hon’ble Chairman of the Rajya Sabha on 23.03.2015, pointing out that even though the hearing prior to the passage of resolution against his statement was denied to him, at-least a post decisional hearing be granted to him. A true typed copy of the e-mail dated 23.03.2015 sent by the Petitioner to the Hon’ble Speaker of the Lok Sabha and the Hon’ble Chairman of the Rajya Sabha is annexed herewith as Annexure P-15 (Page ____ to _____).
13. That, the Petitioner has not received any response from either the Hon’ble Speaker Lok Sabha, the Respondent No. 1 herein or the Hon’ble Chairman, Rajya Sabha, the Respondent No. 2 herein till date.
14. That, the Impugned Resolutions dated 11.03.2015 & 12.03.2015 have been passed by the Rajya Sabha & the Lok Sabha respectively are clearly in contravention of the well-established fundamental rights that have been consistently upheld and expanded upon by this the Hon’ble Court. Besides, they are also in violation of the Rules for Procedure and Business framed by both the houses of Parliament under Article 118 of the Constitution. True typed copy of Chapter XI of Rajya Sabha Rules of Procedure and Business that relate to Resolutions is annexed herewith as Annexure P-16 (Pages ____ to _____). True typed copy of Chapter XIII of Lok Sabha Rules of Procedure and Business that relate to Resolutions is annexed herewith as Annexure P-17 (Page ____ to _____).
15. That, the Respondent No.1 and Respondent No.2 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.
16. That, the 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. The said rule provides:
LOK SABHA RULES
“172. Subject to the provisions of these rules, a member or a Minister may move a resolution relating to a matter of general public interest.”
RULES OF PROCEDURE AND CONDUCT OF BUSINESS IN THE COUNCIL OF STATES
“156. Subject-matter Subject to the provisions of these rules, any member may move a resolution relating to a matter of general public interest.”
17. Thus the Impugned Resolution 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.
18. 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.
19. That 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.
20. The instant Writ Petition does not seek any relief against any member of the Parliament individually.
21. The Petitioner thus has been seriously prejudiced causing grave and irreparable harm to his reputation, and life’s endeavour to uphold the Constitution, fundamental duties, and the rule of law, and in these circumstances, is not left with any other alternative and equally efficacious remedy but to approach this Hon'ble Court on the following amongst other:
A. BECAUSE, this Hon'ble Court in Devidas Tuljapurkar (Supra) has been pleased to hold that:
“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.”
B. BECAUSE, the Parliament (Respondent No.1 and Respondent No.2) lacks the competence and authority to pass the Impugned Resolutions condemning the act of the Petitioner, who is a private person;
C. BECAUSE, the Respondent No.1 and Respondent No.2 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. Thus the Impugned Resolution do not fulfil the jurisdictional requirement, and the necessary jurisdictional facts are lacking;
D. BECAUSE, the Impugned Resolutions have been wrongly admitted by Respondent No.1 and Respondent No.2 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;
E. BECAUSE the impugned resolutions strike at the very root of a number of fundamental rights guaranteed by the Constitution of India, including Articles 14, 19, and 21.
F. BECAUSE the passage of the Impugned Resolutions by both the houses of Parliament have denied the Petitioner equality before the law and equal protection of law guaranteed under Article 14 of the Constitution of India. A Seven Judge Constitution Bench of this Hon’ble Court in Maneka Gandhiji v. Union of India, (1978) 1 SCC 248 has held that either denial of natural justice or arbitrariness, by themselves amount to violation of Article 14. In the present facts, 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 is both arbitrary and in denial of natural justice.
G. BECAUSE Article 19 (1) (a) which is a salient right guaranteeing the Right to Freedom of Speech & Expression. This Hon’ble Court has expounded upon the Right to Freedom of Speech & Expression in a plethora of judgments and always ruled in favour of upholding this right except when ‘reasonable restrictions’ are required to be placed in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. 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.
H. BECAUSE the passage of Impugned Resolution have violated the Petitioner’s right to life and liberty guaranteed under Article 21. The right to preserve and protect one’s reputation and the right to being heard before being adversely commented are integral part of Article 21 as held repeatedly by this Hon’ble Court in many different contexts. These decisions include State of Maharashtra v. Public Concern for Governance Trust (2007) 3 SCC 587 (Paras 39 & 41), Sukhwant Singh & Ors. v. State of Punjab, (2009) 7 SCC 559 (Para 3), Om Prakash Chauthala v. Kanwar Bhan & Ors., (2014) 5 SCC 417 (Paras 1, 12-15, 21 & 26), Divine Retreat Centre v. State of Kerala & Ors., (2008) 3 SCC 542 (Paras 51-53), State of Bihar v. Lal Krishna Advani, (2003) 8 SCC 361 (Para 6, 8-11), Deepak Bajaj v. State of Maharashtra, (2008) 16 SCC 14;
I. BECAUSE the ratio of the recent judgment of this Hon’ble Court in Shreya Singhal v. UOI dated 24.3.3015 in W.P. (Cri) 167 of 2012 (hereinafter “Shreya Singhal Judgment”) 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. In Shreya Singhal (Supra), this Hon’ble Court delved into the content of the expression "freedom of speech and expression". In doing so it explained that there are three concepts which are fundamental in understanding the reach of this most basic of human rights, which are as follows:
“The first is discussion, the second is advocacy, and the third is incitement. 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.”
J. BECAUSE, the right under Article 19(1)(a) includes academic freedom and expression as well;
K. BECAUSE, in the present case, even if the Petitioner did not agree with the views of some of the Parliamentarians on Gandhiji & Subhash Chandra Bose, it was 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. In other words, the Petitioner had said nothing that transgressed the legal threshold of his right to freedom of speech and expression.
L. BECAUSE the Right to Freedom of Speech and Expression has been interpreted liberally by this Hon’ble Court as well as High Courts of the country to encompass even the right to dissent and also include the right to academic freedom. The Constitution of South Africa (1997) explicitly provides "Everyone has the right to freedom of expression, which includes…. academic freedom and freedom of scientific research." This to be read along with Article 51-A (h) of the Constitution of India.
M. BECAUSE, the individual should be able to order his or her life any way he or she pleases, as long as it is not violative of the law or constitutes an infraction of any order or direction of a duly constituted court, tribunal or any statutory authority for that matter. Amongst the varied freedoms conferred on an individual (i.e., the citizen), is the right of free speech and expression, which necessarily includes the right to criticise and dissent. Criticism, by an individual, may not be palatable; even so, it cannot be muzzled. Many civil right activists believe that they have the right, as citizens, to bring to the notice of the State the incongruity in the developmental policies of the State. The State may not accept the views of the civil right activists, but that by itself, cannot be a good enough reason to do away with dissent.” The facts in the present case squarely fall within the parameters of this judgment that reiterates the decisions of this Hon’ble Court that there is no obligation on part of the citizen to agree with the views of the state if the dissension by any citizen is expressed or done within the ambit of the law.
N. BECAUSE in Shreya Singhal (Supra) that encapsulates the true spirit and meaning of the Right to Freedom of Speech & Expression is when this Hon’ble Court discusses that every expression used is nebulous in meaning. This Hon’ble Court further held that what may be offensive to one may not be offensive to another. Moreover, what may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another. Therefore, 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.
O. BECAUSE this Hon’ble Court in Menaka Gandhiji upheld that the core of natural justice principle audi alteram partem is that the person being affected must have a reasonable opportunity of being heard, and the hearing must be a genuine hearing and not an empty public relations exercise. This Hon’ble Court further held that the right to a hearing even if explicitly not mentioned in the statute would be implied, thereby ensuring that it is not dispensed with under any circumstances;
P. BECAUSE most recently, this Hon’ble Court in Om Prakash Chautala (Supra) held that right to reputation has become an inseparable facet of Article 21 of the Constitution. No one would like to have his reputation dented. The court also described that reputation is fundamentally a glorious amalgam and unification of virtues which makes a man feel proud of his ancestry and satisfies him to bequeath it as a part of inheritance on the posterity. The Court further held that when reputation is hurt, a man is half-dead. It is an honour which deserves to be equally preserved by the down trodden and the privileged. But perhaps the most important point that is directly relevant to the facts of the case is that the court held that “the advertence has to be sans emotion and sans populist perception, and absolutely in accord with the doctrine of audi alteram partem before anything adverse is said.”
Q. BECAUSE the touchstone of a healthy and viable democracy is whether or not citizens are able to effectively enforce their fundamental rights against even the most powerful arms of the government including the Executive/Legislature.
R. BECAUSE, if the Parliament is able to pass the aforesaid impugned resolution against the Petitioner which is clearly in violation of Petitioner’s fundamental rights, then in effect it would not only illegally curtail important freedoms of the Petitioner in his individual capacity but also diminish the stature of this Hon’ble Court. It is pertinent to note here that the resolution in its very conception and design consistently emphasised that the Petitioner was a former Judge of this Hon’ble Court, thereby giving the impression that the aforesaid impugned resolutions were passed to merely prove that the Parliament was the supreme and most powerful body in the country and can take action against anybody. It is not open to the Parliament to take upon itself the task of adjudicating whether the statement published on the Facebook by the Petitioner are deplorable or condemnable or not;
S. BECAUSE, the Petitioner verily believes that Hon’ble Members of Parliament were not even informed about the basic fact that the facebook/blog post of the Petitioner itself contained the reasons for his opinion on the two key historical figures of the Indian Independence movement, namely Gandhiji & Netaji Subhash Chandra Bose. At least, the entire statement/post of the Petitioner as well as historical works of other scholars ought to have been formally placed before all those present in the House before the comments of the Petitioner were chosen to be condemned.
T. BECAUSE, these aforesaid Impugned Resolutions would send the wrong signal to academics, historians, journalists, students and others that they cannot during the course of their study or research critically inquire or write about any of the key historical figures of India, which is also contrary to the Constitution of India and the values it seeks to protect. If the aforesaid Impugned Resolutions are not struck down, then it would have chilling effect on free speech, and hindering a critical and independent academic engagement with the history of both pre and post independent India, and its key personalities.
U. BECAUSE, the aforesaid Impugned Resolutions have been passed not only in contravention of the well-established fundamental freedoms as upheld by this Hon’ble Court but also against the rules, tradition and history of the law making by the Indian Parliament itself. The rich history of the writing of the Indian Constitution is replete with debates and discussion by some of the finest legal minds on the fundamental rights that were finally incorporated in Chapter III of the Indian Constitution.
V. BECAUSE the passage of the Impugned Resolution is contrary to the procedure and rules framed by both the houses of Parliament themselves in exercise of the power to frame rules under Article 118 of the Constitution of India. Chapter XI of the Rules of Procedure and Conduct of Business in the Council of States, 8th Edn., August, 2013 (“Rajya Sabha Rules of Procedure and Business”) contains the requirements for passage of resolutions. Rule 157 contained in this chapter, contains the conditions of admissability for a resolution. Rule 157(iii) requires that the resolution “shall not contain…defamatory statements”. Even more importantly, Rule 157(iv) requires that the resolution “shall not refer to the conduct or character of a person, except in their official or public capacity”. Similarly, Chapter XIII of the Rules of Procedure and Conduct of Business in Lok Sabha (“Lok Sabha Rules of Procedure and Business”) contains the procedure for passage of resolution in the Lok Sabha. Rule 173 (iii) requires that the resolution “shall not contain…defamatory statements” and Rule 173(v) requires that the resolution “shall not refer to the conduct or character of a person, except in their official or public capacity”
W. BECAUSE, the resolutions passed by the Rajya Sabha and Lok Sabha violate both these aforestated conditions as condemning a view held by the Petitioner is defamatory and also the said statements were made by the Petitioner as a private citizen of a country and the Petitioner as of the date of making this statement does not hold any constitutional, official or governmental post.
X. BECAUSE, 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. 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.
Y. BECAUSE while historical facts are objective, the manner in which one reaches those facts is subjective and therefore opinion on facts will differ.
Z. BECAUSE, the fiery speeches and discussion by the Constituent Assembly on the fundamental rights, particularly freedom of speech & expression and equality point that the aforesaid impugned Resolutions are in direct contravention of the fundamental freedoms envisaged by the lawmakers who gave us the Indian Constitution. It is widely known that the Chairman of the Constituent Assembly, Dr. B R Ambedkar, who had led the Constitution Drafting Process was proudest of Chapter III of the Indian Constitution which provided for these salient and inalienable rights.
AA. BECAUSE none of the reliefs being sought by the Petitioner in this Petition in any manner impact any of the Parliamentary Privileges mentioned in Article 105 of the Constitution of India. While a Constitution Bench of this Hon’ble Court in Raja Ram Pal v. Hon’ble Speaker, Lok Sabha and Others, (2007) 3 SCC 184 has held that the freedom of speech mentioned in Article 105(1) of the Constitution is unrestricted and not subject to Article 19 of the Constitution, the same applies to statements made by individuals within the Parliament and not to resolutions passed by the Houses of Parliament. The Petitioner herein is not impugning any of the statements made by the Hon’ble Members of the Parliament individually, but impugning the resolution passed by the Houses of Parliament as a whole.
BB. BECAUSE, the “Parliament of India” is State as defined in Article 12 of the Constitution.
CC. BECAUSE in fact, the Supreme Court was envisaged to be the protector and the upholder of the Constitution along with the fundamental freedoms envisaged therein. Shrimati G Durgabai, one of the distinguished members of the Constituent Assembly during the Discussion on Abolition of Privy Council Jurisdiction Bill on 17 September 1949, had clearly stated that the Supreme Court will be the highest court of appeal for all high courts and also the judicial authority for the interpretation of the Constitution. She further wished and hoped that the Supreme Court which is going to be the guardian of the Constitution and of the fundamental rights guaranteed therein, will do its function very well and every citizen in India will have the occasion to say that it has protected his rights as a true guardian of this Constitution. Furthermore, that the changes in the political and constitutional independence of the country was hinged on judicial autonomy.
DD. BECAUSE, the abovestated Petitioner’s view in respect of these two historical figures, has also been adopted by many different and well-known historians, belonging to different schools of historiography as also other eminent figures of the era. Therefore, what the Petitioner 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.
EE. BECAUSE the spirit of the Constitution of India is to uphold all types of engaged and critical enquiry, research and study into all aspects of constitutional and political history of the country, and these impugned Resolutions will have the effect of muzzling and discouraging any critical thinking or enquiry, and this is further complimented by Article 51-A(h) of the Constitution of India;
FF. BECAUSE the impugned resolutions are otherwise bad in law, procedure and contrary to the Constitution.
Any other ground that may be taken at the time of the hearing with the Leave of the Hon’ble Court.
22. That the Petitioner has not filed any other petition before this Hon’ble Court or before any other court against the Impugned Resolutions.
P R A Y E R
In the aforesaid facts and circumstances of the case and in the interest of justice it is most respectfully prayed that this Hon’ble Court may be pleased to pass a writ of mandamus or any other appropriate writ:
A. 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;
IN ALTERNATIVE TO PRAYER (A) ABOVE
B. Directing the Respondent No. 1 and Respondent No. 2 to give the Petitioner a post decisional hearing either himself or through his duly designated lawyer(s), and/or,
C. Pass such other orders as this Hon’ble Court may deem fit in the facts and circumstances of this case
AND FOR THIS ACT OF KINDNESS AND JUSTICE, YOUR PETITIONER, SHALL EVER PRAY.
DRAWN & FILED BY:
PLACE: NEW DELHI
DRAWN ON: 07.05.2015 SHADAN FARASAT
FILED ON: 29.06.2015 ADVOCATE FOR THE PETITIONER