Media and Legislative Privileges: A Case Study

By Nirmaldasan
(nirmaldasan@hotmail.com)

 

 

-- 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. --

 

The 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 S. Selvam, editor of Murasoli, was also sentenced on the same count, this did not draw much attention as Murasoli was a DMK party organ.

 

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 8.30 p.m., 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 6 p.m. and 6 a.m.’”

 

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.

 

While The Hindu demanded that legislative privilege must be codified, the People’s Union of Civil Liberties (Tamil Nadu and Pondicherry) called for the abolition, not codification, of legislative privilege as it ran counter to the basic principles of human rights and the concept of democracy. Some leaders even suggested the imposition of President’s rule. With public opinion mounting against the Chief Minister, the Assembly Speaker K. Kalimuthu attempted to clarify that it was he, and not Jayalalithaa, who had suo motu referred the publications to the Privileges Committee. When slapped with a notice, The Hindu’s editor, N. Ravi, had sent a 14-page response in which he had said, among other things, that he was ready to appear in person before the panel should they so desire. But the Assembly chose to condemn him and others without a trial. The Speaker’s clarification, according to N. Ram, was deafeningly silent on this vital point.

 

Court grants stay

 

After a tense weekend (though The Hindu’s 125th anniversary celebrations in Bangalore went smooth, N. Ram’s car was intercepted in Karnataka by the Tamil Nadu police), the Supreme Court on Monday stayed the warrants issued by the Speaker of the Tamil Nadu Assembly. Addressing media persons, N. Ram said: “Two things stand out. First, our confidence in the Supreme Court as the upholder of freedom of the press stands vindicated. Secondly, how much the press and news media mean to the system is centre staged.”  Referring to questions in certain sections why the five members evaded arrest, he said that the police could not be trusted and there was no question of taking chances. He said there was concern about the health of Rangarajan and about the way Malini Parthasarathy might be treated. He thanked media persons for showing solidarity and said: “I stand in awe before the power of the press and the news media of this country.”

 

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 6 p.m. 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 December 23, 2003 carried an article titled ‘Privileges & Press Freedom’. The writer Sumer Kaul makes a valid point: “In the specific matter of contempt of legislature, how can a citizen or a newspaper be hauled up and legislators enjoy total immunity when they themselves merrily commit all manner of acts which by any standard and certainly in the eyes of the people constitute gross contempt of the House? Such scenes have become too common to merit listing here, but to recall just one incident, wasn’t it, ironically enough, the same TN Assembly where some years ago an honorable member raised his lungi to make whatever point he was trying to make?” Having said that, he goes hammer and tongs against unethical journalism. He writes: “Increasingly to the fore are propagandists and pamphleteers and apologists who function in the service of vested lobbies or powerful interests or political patrons. This they do to feather their own nests or those of their bosses and owners. This is becoming true of a large chunk of the media, especially and most regrettably of many a major English language daily.” And he concludes his article with a dig at The Hindu for evading arrest: “To put it directly, wouldn’t spending 15 days in jail have been a better act of defiance of autocratic authority, and a more potent defence of freedom of press? Not all that long ago tens of thousands of intrepid Indians went to jail for years on end to assert their right to another kind of freedom - and won it!”

 

 

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.

 

The 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’ (April 13, 2003). It was a report which the Privileges Committee had earlier taken cognizance of and had recommended seven days simple imprisonment. Ironically, Jayalalithaa did not then insist on action as the matter concerned only her.

 

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.”

 

On November 20, 2003 the Tamil Nadu Assembly Secretary filed an affidavit in the Supreme Court defending the Assembly’s resolution. The affidavit made the following points: 1. The Hindu’s editorial ‘Rising Intolerance’, imputing motives to the actions of the Speaker and the Privileges Committee, was a gross act of contempt; 2. The actions of the Assembly, being within its jurisdiction, were not subject to judicial review; 3. Freedom of the press do not apply to false reports; and 4. Individual misconduct was being politicized.

 

The Supreme Court decided to refer the case to a larger Bench on December 8, 2003 as it contained crucial questions of law, and referred it to a five-judge Constitution Bench on July 28, 2004. Meanwhile, The Hindu thought it fit to challenge the defamation law itself in the Supreme Court. But the court opined that the defamation law had stood the test of time for over 100 years before and after independence. 

 

Previous Episodes

 

In 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 December 30, 1993.” He goes on to describe the privilege cases against Ananda Vikatan’s editor S. Balasubramanian and Vaniga Ottrumai’s editor A.M. Paulraj during the term of then Chief Minister M.G. Ramachandran. Both had to serve the sentence. Balasubramanian, however, was released after a couple of days in prison. He challenged the sentence as unconstitutional in the Madras High Court in 1987 and won compensation of Rs. 1000 in 1994.

 

Political Developments

The 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 May 19, 2004 titled ‘Power Of Democracy’ hoped that ‘the withdrawal of the defamation cases and the steps to drop privilege proceedings will be followed up by efforts to restore normal, healthy professional relations between the Government and the media’.

 

On July 30, 2004 two days after the Supreme Court forwarded the case to a five-judge Constitution Bench, Jayalalithaa fulfilled her promise. The Assembly dropped all proceedings in the privilege case and suspended the arrest warrants. Here follows the text of the resolution: “While publishing the proceedings of the House, the Press, in the interest of the people, should be neutral and publish the actual version of the report without giving room for any personal bias. The rules and guidelines of the House are only to prevent the publication, by any newspaper, of false and distorted news relating to the proceedings of the Aseembly. If it is not ensured, the public could be misled leading to undesirable conclusions. Therefore, in the hope that the press and the visual media will unflinchingly adhere to this essential principle which is valid for all time, and in the hope that The Hindu and other dailies would publish true and faithful report of the proceedings of the Assembly keeping in view the prestige, dignity and privileges of the House, I move that the resolutions passed by the House on 7-11-2003 based on the recommendations of the Committee of Privileges in the Privileges issue against The Hindu and other newspapers be cancelled and that all the actions taken against The Hindu and other dailies on the basis of those resolutions be dropped.”

 

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.

 

Pointers

 

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.

 

The 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, 23/11/2003): "The Hindu had the reputation, reach, resources and platform to catalyse a tremendous outcry as well as get a timely stay from the Supreme Court. But the worrying corollary is, what of those who cannot summon all these but are entitled to liberty and free speech none the less?"

 

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.

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