Volume 20 - Issue 24, November 22 - December 05, 2003

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MEDIA

The enormity of the threat

A.G. NOORANI

A case for mounting a competent legal challenge to violations of press freedom.

The British House of Commons. The privilege of the House of Commons to commit for contempt for a
period not exceeding the duration of the session has lain dormant for more than 120 years.

IF the outrageous assault on press freedom by the Tamil Nadu Assembly's resolution on November 7,
sentencing to 15 days' simple imprisonment The Hindu's Editor, N. Ravi, Executive Editor Malini
Parthasarathy, Printer and Publisher S. Rangarajan, Tamil Nadu Bureau Chief V. Jayanth and Special
Correspondent Radha Venkatesan, bestirs the press to meet the challenge to its freedom, which has been
hanging on its head for 45 years, it will have, albeit unwittingly, served a good purpose. The press' resistance
is episodic. What is required is organised resistance, based on solid home work, which lasts till the goal is
accomplished.
There are three standing threats to press freedom - the law of parliamentary privilege, the Speaker's
censorship of the press, and Section 199(2) of the Code of Criminal Procedure, 1973, a replica of Section
198B inserted into the old code in 1955 to facilitate abuse of state machinery for prosecuting journalists for
criminal defamation, unheard of in any democracy. It is constitutionally void. (Vide the author's article
"Avoid law", Frontline, April 5, 1996, reproduced in the author's book Citizens' Rights, Judges & State
Accountability, OUP, 2002). The press has yet to challenge it in court, though it is a sitting duck awaiting a
grapeshot from the judicial gun.

The first two threats arose all of a sudden on December 12, 1958, when the Supreme Court ruled (5-1) over a
vigorous dissent by Justice K. Subba Rao that the privileges of India's legislatures prevail over the
fundamental rights of its citizens on the specious reasoning that "the provisions of Article 19(1)(a) (the
fundamental right to freedom of speech and expression), which are general, must yield to Article 194(1) and
the latter parts of its clause (3) which are special". This rule of interpretation of ordinary statutes is
inapplicable to the interpretation of a Constitution. "We must never forget that it is a Constitution we are
expounding" (Chief Justice John Marshall of the U.S. Supreme Court in McCulloch vs Maryland). Chief
Justice S.R. Das overlooked the obvious fact that what he discussed as "general" was a mandate whose
violation would render even acts of Parliament, passed unanimously, void. Article 194(3) is not "special". It
is transitory. It has its own mandate. It says, briefly, that the powers, privileges of a House of the legislature
of a State "shall be such as may... be defined by the legislature by law". This is a constitutional mandate -
codify the privileges. But, "until so defined (they), shall be those of the House of Commons of the Parliament
of the United Kingdom... at the commencement of this Constitution". They were thus frozen to be what they
were on January 26, 1950. The House of Commons has liberalised its privileges. India staunchly adheres to
old precedent. (The 42nd and 44th amendments to the Constitution make verbal changes. The substance
survives intact.) Article 105(3) has an identical provision in respect of both Houses of Parliament.

This ruling is well known by now. Not so the enormity of its error, almost as grave as that of the Court's
ruling in the habeas corpus case during the Emergency. The majority ruled, believe it or not, that our
legislatures, Central and State, have the power to prohibit the publication of even a true and faithful report of
the debates in the House. M.S.M. Sharma, Editor of The Searchlight, a Bihar daily, had published
proceedings expunged by the Speaker. Citing obsolete rulings, Chief Justice S.R. Das' ruling has only to be
read for its error to be exposed. "The effect in law of the Order of the Speaker to expunge a portion of the
speech of a member may be (sic.) as if that portion had not been spoken. A report of the whole speech in
such circumstances though factually correct, may (sic.), in law, be regarded as perverted and unfaithful
report." Ergo, its publication would be - a breach of privilege.

The ruling suffers from these grave defects. First, its construction of Article 19(1)(a) and 194(3) was
manifestly wrong. Secondly, Chief Justice Das accepted that once privileges are codified by law, that law,
like any other, would be subject to fundamental rights and even accepted. "It may well be that that is
precisely the reason why our Parliament and our State Legislatures have not made any law defining the...
privileges." He cited Australia's inaction to do so as well. Section 49 of the Commonwealth of Australia
Constitution Act, 1900, contains an identical provision, which framers of our Constitution borrowed. But
Australia, unlike India, had no constitutionally guaranteed Bill of Rights. Chief Justice Das thus conferred
greater potency to an admittedly transitory provision than the permanent one had, ignored the mandate of the
Constitution for codification and opened a vista of "sky high" powers our legislators never dreamt of (M.S.M.
Sharma vs Sri Krishna Sinha & others. (1959) SCJ 925 at 943).

Till then the understanding was that fundamental rights prevailed. G.K. Reddy, correspondent of Blitz,
successfully moved the Supreme Court to secure the release from prison of its Deputy Editor Homi Mistry,
who was arrested in Bombay on a warrant by the Speaker of the U.P. Assembly (G.K. Reddy vs Nafisul
Hassan AIR 1954 SC 636). The Supreme Court mitigated the 1959 ruling in the U.P. Judges' case (Reference
under Article 143 (1965) SCJ 847). It held fundamentally, that "the sovereignty which can be claimed by the
Parliament in England, cannot be claimed by any legislature in India, in the literal absolute sense" (page
864). Chief Justice P.B. Gajendragadkar, speaking for the majority (6-1), asked: "Was it the intention of the
Constitution to perpetuate the dualism which rudely disturbed public life in England in the 17th, 18th, and
19th centuries?" (page 869.) The court ruled that (a) the fundamental right to move the Supreme Court for
enforcement of the fundamental rights (Article 32) prevails over the privileges as does the High Court's writ
power (Article 226). Both have the power to grant bail in the interim (page 893). Article 21, guaranteeing
personal liberty, also prevails. Unfortunately, the court stopped there. "We are dealing with this matter on the
footing that Article 19(1)(a) does not apply and Article 21 does." This was because "we do not propose to
enter into a general discussion as to the applicability of all the fundamental rights to cases where legislative
powers and privileges can be exercised against any individual citizen of the country" (page 892).

Both the 1959 ruling and this ruling of September 30, 1964, suffer from a grave defect. Neither referred to
debates in the Constituent Assembly. However, they opened another ground for challenge. The rules of
procedure through which the privileges are exercised constitute "law" under the Constitution. If they violate
any fundamental right they are void.

Article 21 says, "No person shall be deprived of his life or personal liberty except according to procedure
established by law." In Maneka Gandhi's case, the Supreme Court ruled: (a) the procedure must be fair and
reasonable and (b) "the law" must be a valid law which does not violate other fundamental rights. (AIR 1978
SC 397). This brings in Article 19(1)(a).

This violation of principles of natural justice or of freedom of speech would render the exercise of legislative
privilege void.

The debates in the Constituent Assembly reveal that Articles 104(3) and 194(3) were adopted on a solemn
promise that the privileges would be codified. On behalf of the Drafting Committee Alladi Krishnaswamy
Ayyar assured the Assembly on May 19, 1949 that "only as a temporary measure, the privileges of the House
of Commons are made applicable" (Constituent Assembly Debates; Volume VIII, page 149). Knowing the
cynicism of our politicians the President of the Assembly, Rajendra Prasad, said on October 16, 1949: "So, it
is only a temporary affair. Of course, the Parliament may never legislate on that point and it is therefore for
the members to be vigilant." (Constituent Assembly Debates; Volume X, page 374). A decade later the
Supreme Court gave legislators a strong incentive for not codifying legislative privileges - frozen as Britain's
on January 26, 1950, though British practice has moved far ahead.

The Report from the Select Committee on Parliamentary Privilege (December 1, 1967; 34, HMSO, London)
said that Parliament's privileges must relate "to the basic requirements of a modern legislature". They should
be exercised only to the extent "absolutely necessary for the due execution of its powers". The last order of
imprisonment was in 1880. Incidentally, the House of Commons has no power to impose fines. Therefore,
neither have our legislatures. The Committee accepted that the charge of "uncertainty" of privileges was
"justified" and the existing procedure "does not manifestly comply with the ordinary principles of natural
justice". It accepted the need for "radical reform". It did not recommend codification. That was in 1967, but
it pointed out that sharp criticism is "the life-blood of democracy" where a legal remedy is available
(example, libel) "the penal powers of the House should not be invoked".

Truth in the public interest was a valid defence to a charge of contempt of the legislature. The general
council of the Bar submitted a memorandum, which advocated codification. An erudite note by the Fourth
Clerk at the Table listed 31 countries, which had codified parliamentary privileges.

Amidst resistance by politicians - speakers, MPs and MLAs - disinterested independent bodies continued to
press for codification. The second Press Commission's Report said: "We think that from the point of view of
freedom of the press it is essential that the privileges of Parliament and State Legislatures should be codified
as early as possible" (Volume 1; para 109, page 53, 1982).

The Press Council of India published a study prepared by M.P. Jain entitled "Parliamentary Privileges and
the Press" (Tripathi, 1984). On December 28, 1982, the Press Council adopted a set of recommendations, one
of which (No. 19) urged codification of privileges "in the interest of the freedom of the press".

Codification is not an impossible task. The Bengal Assembly and Privileges Bill, 1939, is one text to draw
on. Ramakrishna Hegde's government moved in the Karnataka Assembly, the Karnataka Legislature
(Powers, Privileges and Immunities) Bill, 1988, (L.A. Bill No. 14 of 1988). It was criticised because the
punishment provided in some clauses was considered to be excessive.

The Press Council, then headed by Justice A.H. Sen, a former Judge of the Supreme Court, held public
hearings in Bangalore and other places and upheld the criticism. It recommended modification of the penal
provisions. But its eight-page ruling upheld the Bill as a measure "in keeping with the constitutional mandate
which required such privileges to be defined by law. The proposed Bill is a step in the right direction. It will
be eminently desirable if the Parliament adopts any such measure to define the privileges... . And other States
may also follow suit". After Hegde's resignation in August 1988, his successor, S.R. Bommai, did not
proceed with the Bill.

Sri Lanka enacted the Parliament (Powers and Privileges) Act, 1953. A noted civil rights lawyer, Suriya
Wickremasinghe, has documented the brave fight put up by the great lawyer S. Nadesan against abuse of
parliamentary privileges ("Of Nadesan and Judges"; Sunday Observer, January 19, 1997. The Nadesan
Centre in Colombo is a treasure trove of material on the subject.)

Finally, Australia invoked Section 49 of its Constitution, which we borrowed, and codified its privileges in
the Parliamentary Privileges Act, 1987. It abolishes (Section 6) the offence of contempt by defamation
outside the House. It is unlikely that our legislatures will emulate this example. Our hopes must rest on the
Supreme Court repairing the omission in the 1964 ruling. It will derive considerable assistance from the
judgment of the European Court of Human Rights on August 27, 1991, in Demicoli vs Malta. The court held
unanimously that a decision by the House on violation of its privileges is not one by "an independent and
impartial tribunal" after a "fair and public hearing" as required by Article 6(l) of the European Convention
for the Protection of Human Rights and Fundamental Freedoms. Reason? Such a charge is "a criminal
charge". Hence the need for impartial adjudication. Article 21 of our Constitution requires precisely that.

The legal and political climate has improved considerably in the last nearly 40 years since 1964. The
Supreme Court of 2003 is much more liberal than the Supreme Court of 1964. Now is the time for the press
to mount a competent legal challenge against all the three violations of press freedom, which it has
acquiesced in all these years - bar occasional protests.

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