In the Hindu case, its over to the Supreme Court
The second week of November has been a dramatic one in the relationship between the media, legislature and judiciary in India. On November 7 the Tamil Nadu assembly invoked privilege rights against The Hindu and Murasoli and the Speaker sentenced six journalists to 15 days simple imprisonment. The house took offence at an article and an editorial published in The Hindu. Those sentenced were are Editor N Ravi, Executive Editor Malini Parathasarthy, Publisher S Rangarajan, Chief of Bureau V Jayant and Special Correspondent Radha Venkatesan. The assembly also awarded 15 days simple imprisonment to the editor and publisher of Murasoli S Selvam for publishing the translated version of the Hindu article.
The November 7th’s arrest warrants are actually the fallout of developments in April when the assembly speaker took suo moto cognisance of alleged acts of breach of privilege by the paper and referred the matter to the privileges committee of the House. The privileges committee had submitted its report in the assembly on Friday and its recommendations were accepted by a resolution moved by Finance Minister C Ponnaiyan.
On November 10 the Supreme Court stayed the arrest warrants. The journalists had challenged a resolution of the House sentencing them to 15 days imprison-ment for breach of privilege. The Bench, while ex-parte staying the arrest warrants issued by the Speaker K Kalimuthu on November 7, restrained the police and officers of Tamil Nadu and any other State from executing the warrants.
However, the Court said that it would hear respondents on the prayer of the petitioners challenging the legality of the resolution passed by the Assembly on November 7. The court issued notice to Attorney General Soli J Sorabjee seeking his assistance in the matter and directed the petitions to be listed after three weeks for further hearing.
Can the Supreme Court interfere?
Senior advocate Harish Salve, appearing for The Hindu journalists, was countered right at the beginning of hearing by the Bench which asked him to elaborate about the scope and extent to which the Court could interfere in the matter. The Bench sought to know as to what extent the judicial review could be exercised in matters pertaining to the orders passed by the Speaker pursuant to the power exercised by the Assembly under Article 194 of Constitution dealing with the privileges of the House.
Maintaining that powers under Article 194 had to be read harmoniously with right to freedom of speech and expression guaranteed under Article 19, Salve said that the privileges of the House has to yield when the right to life and liberty of a person guaranteed under Article 21 was in question. Giving details of the newspaper articles and an editorial found to be in breach of privilege, he said the House could not unilaterally decide whether the criticism made by the newspaper breached the privilege or not.
The Bench observed "Every institution, be it legislature, media or judiciary, has to respect the other institutions. None of the institutions should cross the Lakshman Rekha or be hyper-sensitive to harsh words of criticism". Following the stay on the arrests the Chief Minister of Tamil Nadu, J Jayalalithaa has said in a letter to the Deputy Prime Minister that the court’s orders will be respected
The Hindu’s coverage of the previous assembly session came in for sharp criticism from the Speaker. The Speaker took exception to usage of phrases like "Chief Minister Jayalalithaa’s stinging abuse" and "unrestrained attacks on the opposition" in the reports that the paper carried. In one incident during the last session, the Speaker had pulled up the reporter of `The Hindu` along with one more reporter from another paper for talking in the press galleries. A report in `The Hindu` with the headline "Jayalalithaa taunts Marxists again" was dismissed as contrary to facts.
The speaker said the reports were intended to "blacken the reputation of thegovernment." The paper`s editorial "Rising intolerance" on April 25 last was charged with imputing motives to the actions of the Speaker and tarnishing the entire assembly, its members and the privileges committee itself.
(The Hindu editorial had observed: "With each passing day, the Jayalalithaa administration in Tamil Nadu seems to be scaling new heights of intolerance. The crude use of state power against various sections including political opponents and the independent media shows a contempt for the democratic spirit that is deeply disturbing.)
Earlier run ins
However, it is not the first time journalists have had a run in with the legislature. In 1987, S Balasubramanian editor of a Tamil Magazine `Ananda Vikatan` was sentenced to three months rigorous imprisonment after he was charged with breaching the privileges of the houses for publishing a "derogatory cartoon." So also, A M Paulraj, editor of a business magazine, lost his legal battle against his fight against a breach of privilege brought in by the Tamil Nadu Assembly and had to suffer two week’s incarceration.
In April 1992 an arrest warrant had been issued against K P Sunil, correspondent of the Illustrated Weekly of India for an article that carried the headline `Tamil Nadu Assembly fast Gaining Notoriety.` On all three occasions the AIADMK was in power. While the party founder MGR was chief minister in the first two instances, Jayalalithaa was at the helm during the Sunil episode.
The question at this point is, is the Supreme Court stay just a `temporary relief.` If the press is to be made immune to the `whims and fancies` of the legislatures, then the privileges of the legislatures in India, which are `very broad`, will have to be spelt out.
The Supreme Court has held in 1964 that the power to determine the breach of privilege solely rests with the legislatures and the courts cannot sit in judgment over the commitment. The Allahabad High Court, based on the advisory opinion of the Supreme Court in 1964, in the Keshav Singh case underlines the point in bold holding that "the Legislative Assembly is the master of its own procedure and is the sole judge of the question whether its contempt has been committed or not."
The law which governs the powers and privileges of Parliament and the State Legislatures is called the law of Parliament in order to distinguish it from the law made by Parliament. There is no law yet made by the Parliament of India or any State Legislature relating to its own powers and privileges even though the Constitution has conferred the power to make such laws. In the absence of such legislation what constitutes privilege of the legislature and what punishment can be awarded for it is not spelt out. It is precisely this fuzziness which has led to the abuse of legislative authority in the case of the Hindu versus the Tamil Nadu Assembly.
In the absence of codification what is resorted to is Indian and English precedents. The privileges of the Indian Parliament, so long as is no law in this behalf is made by Parliament itself, remains the same as that enjoyed by the British House of Commons at the commencement of the Indian Constitution.
Issues of privilege relate to the publication of the proceedings of the legislature. The Press can publish such proceedings only as a privilege, which the Legislature can withhold either by sitting in camera or by refusing to admit representatives of the Press generally or inDIVidually, or by expunging or withholding from publication particular portions of the proceedings.
Reporting defamatory matter
The issue also arises of publishing defamatory matter if it is part of parliamentary or legislative proceedings. The press in UK has the immunity for publication of an unlawful matter contained in a Parliamentary proceeding, on the condition that the report is fair and accurate, and made in good faith without malice. In 1956 Parliament enacted the Parliamentary Proceedings (Protection of Publication) Act to bring Indian law in tune with English law. The immunity conferred by it was extended to newspapers, as well as radio broadcasts and both civil and criminal liability provided the publication was a substantially true report, had to be a report of the proceedings of either House of Parliament, was for the public good, and not actuated by malice. The state legislatures were not covered by it, some states, such as Orissa, enacted their own similar legislation.
During the Emergency Prime Minister Indira Gandhi’s government felt high dignitaries should be protected from defamatory publications in the Press arising from reports about proceedings of Parliament. So she repealed the 1956 Act with an ordinance and which was followed by the Parliamentary Proceedings (Protection of Publication) Repeal Act, 1976. In 1977 when the Janata Party came to power it revived the 1956 act. It also amended the Constitution by inserting Article 361A to cover the publication of legislative proceedings not just of either house of Parliament but also of state legislatures.
What is relevant in the case of the Hindu is whether the reports which the Speaker mentioned are defamatory, going by the qualifications set out for reporting proceedings. If they are substantially true and not actuated by malice they are entitled to constitutional protection. As to whether they constitute contempt of Parliament or legislature by the press, caused by breach of privilege, this cannot be firmly ascertained in the absence of codification which would spell out precisely what powers, privileges and immunities each house has. With nothing stated, breach of privilege and the punishment to be awarded for such breach remains a subjective judgement. The punishments available as specified by Articles 105 (3) and 194 (3) of the Constitution are Admonition, Reprimand, Imprisonment, Exclusion.
Earlier cases
Reprimand was resorted to in the case of the Editor of Blitz Weekly of Bombay in 1961. He had published a derogatory criticism of a speech of a Member (Acharya Kripalani) of the Lok Sabha. It was recommended by the Committee of Privileges that he be called to the Bar of the House and reprimanded while the pres gallery card of the New Delhi correspondent of the Journal should be cancelled until he gave a full and adequate apology.
In 1953 the Times of India was held guilty of contempt for commenting that certain questions put in the House were mean and petty and that they should have been disallowed. Press facilities were withdrawn from the newspaper.
In 1976 the Privileges Committee of the West Bengal Legislature found both the editor and the news editor of "Satyayug", a Bengali daily, guilty of committing a gross brief of privilege and contempt of the House in an article they had published. The editor tendered an apology in writing and was asked to publish the apology on the front page of the paper for three consecutive days.
So, what is the way out? Constitutional experts suggest two ways out. One, the Parliament must on an expeditious basis legislate to codify and define the privileges of legislatures so that arbitrary and extraneous considerations do not allow the legislatures in India to go after the press. Two, the Supreme Court can use the Hindu case to reopen the question of whether the legislatures should be the sole arbitrators of commitment of a breach of privilege.
Sources:http://sify.com/news/fullstory.php?id=13304476 http://sify.com/news/othernews/fullstory.php?id=13303140
Law of the Press, Durga Das Basu, Prentice-Hall of India Pvt. Ltd. 1995
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