Parliament, Courts and the Media
--A Surya Prakash
After many long and bitter tussles for constitutional space, parliamentary institutions in India appear to have yielded some ground to the media and the courts and settled down'to an uneasy truce with the other "pillars" of democracy.
Though many of the issues that triggered the turf wars are still not out of the way, it can be said that the legislature, the executive, the courts and the media have evolved a formula to ensure their constitutional coexistence. This is indeed a vast improvement over the ugly battles that have pock-marked our constitutional history in the first two decades after independence. Many of these battles were occasioned by the media's efforts to assert its freedom and the legislature's efforts to assert its privileges. In all these cases, the courts have had to intervene to protect the media from what seemed like the tyranny of the legislatures. In landmark judgements that laid down the law in this regard, the courts have held that while legislatures have plenary powers, they cannot trample on the fundamental rights of citizens. Barring such intervention, journalists would have been in deep trouble as was evident in the 'Blitz' Case. We need to look at this case and a few others to get a sense of the law as it stands today vis-avis the plenary powers of legislatures.
The arrest of the Acting Editor of 'Blitz' Weekly on the orders of the Speaker of the Uttar Pradesh Assembly provided an opportunity for all the "pillars" of democracy to test their relative strengths within a couple years of the adoption of the Constitution in 1950.
This incident, which was the first "trial of strength" between the legislature, the media and the courts happened in 1952. Dinshaw Homi Mistry, the Acting Editor of 'Blitz' was arrested on the orders of the Speaker of the Uttar Pradesh Assembly and detained for a week for publishing an article which questioned "the impartiality of the Speaker".
Mr. Mistry would have had to cool his heels in jail for a long time if the judiciary had not intervened and protected his fundamental rights. Acting on a habeas corpus petition, the Supreme Court ordered his release.
Even more sensational case was the case of Keshav Singh. He was jailed by the Uttar Pradesh Assembly in 1964 for publishing a pamphlet that was "derogatory of a member of the House". But the case took a bizarre turn when it blew up into a full blown conflict between the legislature and the judiciary. Here too, the judiciary had to intervene to protect his fundamental rights. The Allahabad High Court directed'that he be released from jail. But the story did not end here. It led to a head-on confrontation between the legislature and the judiciary warranting the intervention of the President and the Supreme Court. The most celebrated case of the 1980s was that of Ramoji Rao, Editor of 'Eenadu' who was hauled up by the Andhra Pradesh Legislative Council for.publishing an editorial which was "degoratory of the House". The Council directed the Commissioner of Police, Hyderabad to arrest him and produce him before the bar of the House. Rao petitioned the Supreme Court to defend his fundamental rights. The court responded by directing the Police Commissioner, Hyderabad, not to act on the Council's orders. More recently in 2003, the Tamil Nadu Assembly decided to jail the Editor and four others of 'The Hindu' for criticizing the Chief Minister and the legislature. The Assembly's action led to nation-wide protests. 'The Hindu' moved the Supreme Court, but the legislature, probably sensing the national mood, decided to drop the charges.
I will elaborate on some of these cases a little later. However, what emerges is the timely intervention of the higher judiciary to shield media persons from punitive action by legislatures which have grandiose notions of their privileges but little understanding of the fundamental rights of journalists. The tussle between the media and the legislatures was primarily brought about by the latter's overwhelming sense of self importance, lack of understanding of democratic principles and intolerance of criticism. Media professionals on the other hand were determined to assert their constitutional rights, even if it meant some days or weeks in jails. The Supreme Court and the High courts however put the brakes on legislature assemblies and sought to instill a modicum of democratic tolerance in them. This friction between the legislature and the media has led to some landmark judgements-. The constitutional position is best explained in the Keshav Singh Case and later in the Supreme Court's intervention in the Ramoji Rao Case. These cases have most certainly aligned the practice of democracy to the constitutional scheme.
The Keshav Singh Case
In this case, one Keshav Singh was hauled up in March, 1964 by the Uttar Pradesh Assembly for publishing a pamphlet derogatory of a member of the House. He was jailed for a week by the House for committing contempt of the House. While in prison Keshav Singh through his Advocate moved a petition before the Lucknow Bench of the Allahabad High Court challenging his committal on the ground that it violated his fundamental rights. He also sought interim bail. A two-judge bench of the court admitted his petition and ordered his release on bail. The State Assembly responded by holding Keshav Singh, his advocate and the two judges of the High Court guilty of Contempt of the House and passed a resolution that all of them be arrested and produced before it. The two judges and the advocate thereafter moved writ petitions before the Allahabad High Court. A full bench of the court admitted their petitions and ordered stay of the execution of the Assembly's resolution. Following this bizarre turn of events and the emerging conflict between the legislature and the judiciary', the President made a reference to the Supreme Court under Article 143(1). This matter was heard by a 7-judge bench of the Supreme Court headed by Chief Justice P.B.Gajendragadkar. The. others on the bench were Justices A.K.Sarkar, K.Subba Rao, K.N.Wanchoo, M.Hidayatullah, J.C.Shah and N. Rajagopala Ayyangar. The Chief Justice delivered the majority view in this case on behalf of five of his colleagues and himself. One judge- Justice A.K.Sarkar- dissented.
The fundamental principles laid down by the court in this case has stood the test of time and enabled media persons to challenge legislatures that resort to unconstitutional measures. The court held that the Constitution is supreme and Indian legislatures cannot claim sovereignty similar to the Parliament in England. It declared that the judiciary has the exclusive power to interpret Article 194(3) from which legislatures draw their powers and privileges and that legislatures must use their plenary powers with circumspection.
With specific reference to the powers of the legislature, the court said "state legislatures in India could not by virtue of Art 194(3) claim to be the sole judges of their powers and privileges to the exclusion of the courts. Their powers and privileges were to be found in Art 194(3) alone and nowhere else, and the power to interpret that Article lay under the scheme of the Indian Constitution, exclusively with the judiciary of this country".
As regards the exercise of plenary powers, the court said : Our legislatures have undoubtedly plenary powers, but these powers are controlled by the basic concepts of the written Constitution itself and can be exercised within the legislative fields allotted to their jurisdiction by the three Lists under the Seventh Schedule; but beyond the Lists,the legislatures cannot travel…….. If the legislatures step beyond the legislative fields assigned to them, or acting within their respective fields, they trespass on the fundamental rights of the citizens in a manner not justified by the relevant articles dealing with the said fundamental rights, their legislative actions are liable to be struck down by courts in India. Therefore it is necessary to remember that though our legislatures have plenary powers, they function within the limits prescribed by the material and relevant provisions of the Constitution".'
The Ramoji Rao Case
On March 10, 1983, the leading Telugu daily Eenadu carried a report about the ruckus in the Andhra Pradesh Legislative Council during the presentation of the budget proposals the previous day. A member of the House took exception to the headline given to the report and raised a breach of privilege issue against the newspaper. The headline had referred to the rumpus as "Peddala Galaba", a literal translation of which is "Elders Commotion". The privilege notice however argued that the choice of words was derogatory. The matter was referred by the Chairman of the House to the Privileges Committee, which, a year later, held the newspaper guilty. The committee was also peeved by the fact that Ramoji Rao, Editor, Eenadu, refused to appear before the committee and defend the impunged news report.
The House adopted the committee's report and decided to admonish Rao on March 28, 1984. A warran^ was issued to the Commissioner of Police, Hyderabad to produce Rao before the Bar of the House on the appointed day. Meanwhile, Ramoji Rao moved the Supreme Court, which ordered that he shall not be arrested by any process/warrant issued by the Andhra Pradesh Legislative Council.
On hearing of the court's order, the Commissioner of Police sought fresh directions from the House. The Council discussed the matter on March 27 and reiterated its instructions to the Commissioner of Police. Meanwhile, Chief Minister N.T.Rama Rao wrote to the President requesting a presidential reference to the Supreme Court and informed the House. On March 28, the Police Commissioner informed the Council Chairman that as per his directions, he went to Mr.Ramoji Rao's office and asked him to "accompany" him to the Legislative Council. The Editor declined to do so and gave him a letter stating that he cannot be arrested unless the orders of the Supreme Court are modified or vacated.
Two days later, the Governor prorogued the Council and the matter ended there.
Therefore, whether it is the Ramoji Rao Case or the Hindu Case, what comes through is the intolerance of the legislature to criticism and its readiness to violate the fundamental rights of citizens.
Courts have generally been protective of citizens in such circumstances. How they view the constitutional powers of the legislature vis-a-vis the fundamental rights of citizens is best explained, by Justice K.Subba Rao in his minority opinion in The Searchlight Case that was decided six years prior to the Keshav Singh Case. "As there is no inherent inconsistency between Arts 19(l)(a) and the second part of Art 194(3), full effect must be given to them both on the principle of harmonious construction. The wide powers and privileges enjoyed by the legislature and its members should, therefore, be so exercised as not to impair the fundamental rights of the citizen…… Art 19(1) (a) must prevail over Art 194 (3) and not vice versa and the privilege must yield to the extent it affected the fundamental right".
Equally weighty is the opinion of Chief Justice Gajendragadkar while writing the majority opinion in the Keshav Singh Case : " The power to punish for contempt, large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity of the court but may sometimes affect it adversely. Wise judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgements, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct. We venture to think that what is true of the judicature is equally true of the legislature".
Chief Justice Gajendragadkar said this in 1964. Many legislative assemblies have ignored his advice and as a consequence, suffered a loss of face. However, it must be said that while state legislatures have pushed the law to the limits, the two Houses of Parliament have conducted themselves with far greater maturity and dignity. The two Houses have preferred to take criticism in their stride rather than enter into a conflict with the media and consequentially with the high judiciary. State legislatures need to learn from the two Houses of Parliament and exercise restraint and dignity in the true democratic spirit rather than act in pique when they are criticized. While parliaments in western democracies have dumped antiquated notions of privilege and moved towards greater accountability and transparency in their work, legislative assemblies in India still cling to antiquated notions of "privilege". They need to adjust their sails to the spirit of democracy and become more accountable. The Constitution does not give them the power to hide behind privileges and torment their critics. The sooner they realize it, the better.
As stated earlier, issues of privilege are rather rare in the two Houses of Parliament these days. Instead of clinging to outdated notions of privilege, the two Houses have shown their willingness to adopt new democratic ideas by turning their attention for the first time to ethics. Both the Houses have appointed Ethics Committees and have also endorsed a model code of conduct for MPs. They have also outlined the procedure for citizens to complain against MPs who indulge in unethical conduct. The two Houses will soon take the next logical step and put procedures in place to empower voters in this regard and to enforce the Code of Conduct. Once this happens, there will be pressure on state legislatures to follow suit.
While these steps taken by Parliament are laudable, there is also need for Parliament to undertake a review of rules pertaining to media coverage of proceedings and expunctions.
The two Houses of Parliament and legislative bodies in India need to take note of the dramatic changes that have come about in media over the 15 years. When India became a democratic republic, the media was basically the print media, which was in private hands and the radio, which was and which substantially is, a government monopoly. Then came television, which too was a government monopoly for many decades. All this changed with the opening up of the economy in the early 1990s. In the 1950s, 20 Million people or less than 5 per cent of Indians had access to a daily newspaper. Today, the total circulation of daily newspapers is around 75 Million, which means that the readership of dailies has crossed 300 Million (over 25 per cent of the population). In fact, the print order of daily newspapers has more than doubled over the last ten years. The 1990s also saw the end of government's monopoly over television. Fourteen years ago, Indians had access to just two state-owned television channels. Currently, they have over 100 channels to choose from on the cable circuit and over 40 of them have news and current affairs programmes. Many of them are 24-hour news channels. The number of homes with cable connections is estimated at 65 million thus reaching over 260 million citizens. Apart from this, the terrestrial channels of Doordarshan reach 400 million people and an unbelievable 800 million listen to All India Radio. Current trends indicate that both literacy rates and per capita income are on the rise and this can only mean steady growth in newspaper readership and television viewership. The radio is also going to witness a second coming because it is a big hit among the youth in its FM avatar.
This growth is mind boggling and parliamentary institutions in India have no option but to make peace with the media boom and media power. They can do so by revising antiquated rules of procedure. For example, there is urgent need to review the expunction rules in the two Houses of Parliament and in the legislatures. These rules are discriminatory in this era of live television coverage. While millions of people can watch and hear everything that transpires during live coverage of parliament, the print media is expected to obey the post facto expunction orders of the presiding officers. How can parliament allow one medium to provide live coverage of proceedings and impose restrictions on another medium. Legislative bodies need to review these obsolete rules.
I am certain that the two Houses of Parliament will take the initiative to revise the rules and to create a more media friendly environment. State legislatures however will take a little longer to face this reality but this too, I'm sure, will happen.