SC Hearing on Breach of Privilege: Better Late than Never

It has taken 23 yers for any real engagement with the issue of codification of privileges of Parliamentarians and elected representatives in state legislatures. A seven judge bench will hear the matter today. However, with indications that it is a mere “academic exercise”, don’t be surprised if it gets deferred again.

A seven judge reference bench, comprising CJI Surya Kant, Justice Aravind Kumar, Justice PK Mishra, Justice Joymalya Bagchi, Justice Vipul Pancholi, Justice Sree Chandrashekhar and Justice V Mohana is scheduled to hear the matter.

The matter arose after the Tamil Nadu assembly ordered the arrest of the editor of The Hindu newspaper on November 7, 2003, following the publication of an editorial titled “Rising Intolerance” on April 25, 2003 that year, criticising then Chief Minister J. Jayalalithaa, after passing a resolution that the publication amounted to a breach of privilege.

Tamil Nadu police arrive at The Hindu office to arrest editor N Ravi and editorial team (courtesy India Today)

Within hours of passing the resolution, police reached The Hindu office to arrest The Hindu Editor N. Ravi, Executive Editor Malini Parthasarathy, Bureau Chief V. Jayant, Special Correspondent Radha Venkatesan and Publisher S. Rangarajan, but the journalists challenged their arrest in the Supreme Court. The arrests were stayed by a division bench comprising Justices Y.K. Sabharwal and S.B. Sinha.

The matter has been pending since then. Several intervenors, including the People’s Union for Civil Liberties (PUCL), stand up comedian Kunal Kamra, charged with breach of privilege by the Maharashtra State Assembly, former Lok Sabha MP Subhashini Ali, journalists Dhanya Rajendra, Ajit Anjum and Seema Chisti, have sought to be heard, on grounds that the fundamental right to freedom of expression could not be over-ridden by legislative immunity.

According to a report in LiveLaw, a day before the hearing today, Senior Advocate Raju Ramachandran, for the State of Tamil Nadu, today informed a 3-judge bench led by CJI Surya Kant that the 2003 resolution of the Assembly was revoked in 2004 itself. According to him, an affidavit was filed in the Court but the reference order (for the seven judge bench hearing) omitted it. Ramachandran suggested that since
“the cause of action for the case no longer survives, the reference may have become academic.”

According to the report, the Chief Justice said that the Court would not indulge in a mere academic exercise.   “If the issue survives, we will decide. If it doesn’t, we can wait for a proper opportunity. Other part-heard cases can be heard instead,” the CJI is reported to have said.

Is it a mere academic exercise?

Intervenors in the petition do not think so.

The codification of legislative privileges has been a long-standing demand of journalists’ organisations and free speech votaries. Journalists, civil society activists, politicians and even a stand-up comedian have been charged with breach of privilege for merely reporting on legislators or even commenting on their actions.

Till date, there is no clear provisions on what actually constitutes a breach of privilege. As it stands, it covers a range of statements that an elected representative can feel aggrieved by. Elected representatives can take offence at any statements, reportage or comments, from trenchant criticism, reporting on corrupt practices or even slang in satirical language.

Another issue is the process to determine breach of privilege. The privileges committee of either Parliament or respective state legislatures, which have the powers to issue summons and recommend penal action like imprisonment, function in an opaque fashion. Basic judicial processes, like a right to a lawyer or defence representative, is denied to those accused.

Kunal Kamra, for instance, was issued a breach of privilege motion in 2025 by the Maharashtra state Assembly for a satirical video titled “Naya Bharat” that poked fun at Maharashtra Deputy Chief Minister Eknath Shinde for switching sides in 2022. In June 2017, the Karnataka Assembly ordered the arrest and one year imprisonment of journalists Ravi Belagere and Anil Raj for articles published in their tabloids four yers earlier and in March 2025, journalist Tushar Kharat faced a breach of privilege motion and was arrested on charges of extortion after his Youtube channel reported a sexual harassment case against a Maharashtra rural development minister Jayakumar Gore.

It stands to reason that the immunity and privileges enjoyed by elected representatives cannot go beyond the reasonable restrictions on freedom of expression as laid down under Art 19 (2) of the Constitution.

In the past, elected representatives displayed a thicker skin and several notices for breach of privilege ended with warnings or mild punishments. But with an increasingly authoritarian state, where elected representatives brook no opposition, the power of immunity is unchecked, arbitrary and absolute. This is inherently unconstitutional and dangerous for a democracy.

For the last 79 years of Independence, Parliament, under successive governments, has stalled any real attempt to codify these privileges. While even this case took 23 years to reach the stage of a seven-judge bench, will the court’s indication that it may not indulge in an academic exercise, avoid the issue all over again?