Dialogue October - December 2005 , Volume 7 No. 2
Parliament, Courts and the Media
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-à-vis 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.
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 warrant
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-à-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(1)(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.
Dialogue (A quarterly journal of Astha Bharati) |