Media and Legislative Privileges: A Case StudyBy Nirmaldasan
-- Appeared in 'Media Law and Ethics: Readings in Communication Regulation' (In 2 volumes), 2007; Edited by Kiran Prasad, B.R. Publishing Corporation (India), New Delhi – 110002. --
conflict between media freedom and legislative privilege came to a head when on
November 7, 2003 the Tamil Nadu Assembly sentenced The Hindu’s editor, N. Ravi, and four others – S. Rangarajan, Publisher;
Malini Parthasarathy, Executive Editor; V. Jayanth, chief of the Tamil Nadu
Bureau; and Radha Venkatesan, Special Correspondent - to 15 days of simple
imprisonment for breach of privilege. Though
It was a Friday. A posse of policemen descended on The Hindu’s headquarters in Chennai even without a warrant. And then it was high drama. But those whom the police came searching for were not there. Had they been caught, they would have had to spend the weekend, at the least, behind bars. The timing of the resolution certainly casts doubts on the motive of the powers that be. The Hindu went to town with a hard-hitting editorial ‘A Crude And Unconstitutional Misadventure’ on the front-page of its edition of November 8. The lead story was, of course, “T.N. Assembly sentences The Hindu Editor, 4 others for ‘breach of privilege’”. Except for the ear panels and the solus, the rest of the front-page was entirely devoted to The Hindu. A tinted box item titled ‘What Jayalalithaa said then …’ reported: “Well after the Supreme Court’s dusk deadline on arresting women, two male police officers landed at the office of The Hindu here to arrest the Executive Editor, Malini Parthasarathy. After , they searched her room. This ran contrary to the statement of the Chief Minister, Jayalalithaa, that the then Chief Minister, M. Karunanidhi, had no alternative but to arrest her in the morning in December 1996. ‘The laws of this land are very clear that no woman should be arrested and kept in police custody between and ’”
The front-page editorial said: “The articles that earned the wrath of the Tamil Nadu Assembly’s Privileges Committee, dominated by the AIADMK, were three news reports and an editorial titled ‘Rising Intolerance’ published in April 2003. Quite extraordinarily, the allegedly offensive portions in the reports were descriptive words such as ‘fumed’, ‘incensed’, ‘stinging’, ‘diatribe’, and ‘high-pitched tone’ employed to give a feel of Ms. Jayalalithaa’s speeches on a few occasions. As for the editorial, it was a well-reasoned and upstanding response to the decision to refer these reports to the Assembly’s Privileges Committee. It made the important point that privilege must be invoked only when there is a material obstruction of the functioning of a legislature and that the power must not be used to insulate legislators against comments or criticism.” What this editorial fails to record is that in ‘Rising Intolerance’ (April 25, 2003) there is this sentence: “A series of descriptive phrases, mostly about the Chief Minister’s speeches, strung together from separate reports have been collectively referred to the Assembly’s Privileges Committee, and given its composition, the outcome hinges critically on the attitude of the AIADMK members.” Though its fears are justified, The Hindu need not have cast this aspersion on the integrity of the committee.
The Tamil Nadu Assembly’s resolution drew flak from various quarters. Political leaders, including the then Deputy Prime Minister L.K. Advani and the then Defence Minister George Fernandes, condemned the attack on press freedom. Cho Ramaswamy, editor of the Tamil weekly Tughlak, suggested that the ‘offending’ news reports and the editorial be reproduced in all newspapers. Even as The Hindu approached the Supreme Court for relief, its Editor-in-Chief N. Ram said that certain groups behind the Assembly were claiming sky-high powers. “We have to stop them at the starting blocks. This is a misadventure which is guaranteed to blow up in their face. We tried to normalize the relations between the press and the Government initially, but nothing came of it.,” he said.
The Hindu demanded that legislative
privilege must be codified, the People’s Union of Civil Liberties (Tamil Nadu
Court grants stay
a tense weekend (though The Hindu’s
125th anniversary celebrations in
The Hindu’s editorial of November 12, 2003 titled ‘Press Freedom Vs Its Adversaries’ stated that the newspaper based its action on its firm conviction in the truth of three basic propositions: 1. Freedom of the press is an inalienable fundamental right; 2. This right, which comes under reasonable restrictions, is highly valued by both constitutional and political India; and 3. The Constitution, not any legislative body, is supreme.
At this point it may be of interest to note how The Hindu’s rival The New Indian Express treated the episode. In its Sunday edition of November 9, there appears a report by Manoj Mitta headlined ‘The Hindu goes to Supreme Court’:
“Less than two hours after The Hindu knocked on its doors, the Supreme Court, showing unusual speed and a rare departure from procedure, opened them tonight.
In fact, evidence of the court’s pro-active intervention came when the Registrar himself took the newspaper’s petition – filed at against the Tamil Nadu Assembly’s imprisonment order — to the residence of the seniormost judge in town, Justice R. C. Lahoti.
Amid high drama outside his residence, Justice Lahoti, in turn, listed the case for Monday before a bench comprising Justice Y. K. Sabharwal and Justice S.B. Sinha.
The judge’s decision came despite the fact that the newspaper’s petition, prepared under senior advocate Harish Salve, did not have the requisite vakalatnama (power of attorney) … ”
The New Indian Express’s edition of
Tamil Nadu Government’s stand
The Tamil Nadu Chief Minister Jayalalithaa was quick to comply with the Supreme Court’s orders. She assured the then Deputy Prime Minister L.K. Advani that the court orders would be fully complied with. N. Ram had sought and obtained the nod from the Centre for central security fearing harassment in the aftermath of the court’s order. But after the Chief Minister’s assurance, The Hindu withdrew its application for security cover.
Tamil Nadu Government had already slapped a slew of defamation cases against
various newspapers. On November 11, 2003, perhaps expecting a stay on the
warrants, it slapped one more against The
Hindu for an article titled ‘People’s Court only way out for Opposition’ (
A.G. Noorani’s article in Frontline (November 22-December 5, 2003) titled ‘The Enormity Of The Threat’ states: “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.” After discussing these three threats, Noorani concludes: “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 yeas - bar occasional protests.”
Supreme Court decided to refer the case to a larger Bench on
an article titled ‘The Media And The State Government’ in Frontline (November 22-December 5, 2003), T.S. Subramanian points
out that the privilege case against The
Hindu was not the first of its kind in Tamil Nadu. In 1992, the then
Speaker Sedapatti R. Muthiah had issued arrest warrants against K.P. Sunil,
former correspondent of The Illustrated
Weekly of India; S. Selvam, editor of Murasoli;
and S.K.I. Sunther, editor of Kovai Malai
Murasu. Subramanian notes: “Between 1991 and 1993, during Jayalalithaa’s
earlier tenure, 180 defamation cases were filed against journalists, political
leaders and lesser politicians. She withdrew all the cases on
AIADMK debacle in the parliamentary polls of 2004 made the Tamil Nadu Chief
Minister, Jayalalithaa, roll back many of her Government’s unpopular and
controversial decisions. In May 2004 she withdrew all defamation cases against
the media and promised to “move a
Resolution in the Tamil Nadu Legislative Assembly to drop all the proceedings
against The Hindu and other
newspapers in connection with the Privilege Issues which figured in the Tamil
Nadu Legislative Assembly in November, 2003, in the hope that these newspapers
will conduct themselves in a responsible manner respecting the prestige,
dignity and the privilege of the Tamil Nadu Legislative Assembly.” The Hindu’s editor-in-chief, N. Ram,
welcomed the decision and said: “I congratulate the Tamil Nadu Chief Minister
and her Government for doing the right thing at this juncture and look forward
to the restoration of normal relations between the press and news media, on the
one hand, and the State Government, on the other.” The Hindu’s editor, N. Ravi, though he welcomed the move, cautioned
that there was no room for complacency and that the campaign against criminal
defamation law and legislative privilege needed to be pursued. The Hindu’s editorial of
N. Ram and N. Ravi welcomed the resolution and pointed out that this was a sequel to Jayalalithaa’s announcement on the subject in May 2004. They said they would discuss with their lawyers the implication of the Assembly’s latest resolution on the case pending in the Supreme Court. The lawyers, it appears, have advised them not to pursue the matter. What else can explain The Hindu’s lack of interest in pursuing the case in the larger interests of the media? The privilege saga had ended.
What was described as a struggle for press freedom turned out to be just an issue between The Hindu and the Tamil Nadu Chief Minister Ms. Jayalalithaa. As early as November 2003, Pradyuman Maheshwari of the now defunct web site Mediaah! had commented that the matter was only between The Hindu and Ms. Jayalalithaa.
Hindu certainly has to protect its business interests, but that is no
excuse for not pursuing the cause of press freedom in the Supreme Court. If a
more than 125-year-old newspaper cannot protect press freedom but only its own,
then what hope is there for small newspapers? writes Sevanti Ninan, in an
article titled 'How Free?' (The Hindu,
Even if The Hindu were to think about the larger interests of the fourth estate, it is unlikely that the battle between the media and the legislature can be fought to the finish. The Constitution is indeed supreme, but it has no clear answers to many questions. Which is more important: freedom of expression or legislative privilege? A final answer may not be in the interest of a democratic society, in which the Press and the Legislature have to fulfill indispensable roles.
However, even as the freedom of speech comes with reasonable restrictions, it is only fair that legislative privilege must be codified. The problem with the Press is that it can only react to events as it were and not respond to ideas. The Hindu may have many a reason to think the matter closed, but the other media must persuade The Hindu to join forces and press for the codification of legislative privilege. The privilege saga has not ended yet.