As in other democracies across the globe, freedom of the Press has been given its due importance in our political system also. Though it has not been expressly provided for in the Constitution of India, it is implicit in the Fundamental Right of the “Freedom of Speech and Expression” guaranteed to the citizens under article 19(1) (a) of the Constitution. It has been settled by several judicial pronouncements that Freedom of Speech and Expression includes Freedom of the Press. In the Indian Express Newspapers V Union of India (A.I.R. 1985 SC) the Supreme Court observed:
The expression `Freedom of the Press` has not been used in article 19 but it is comprehended within article 19 (1)(a)…The purpose of the Press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments.
The term “Freedom of Speech and Expression” includes the liberty to propagate not only one’s views but also the right to print matters which have been borrowed from someone else or are printed under the direction of that person and includes the liberty of publication and circulation.
As an important medium of communication between the Legislature and the people, it is the foremost responsibility of the Press to inform the people of correct news and true facts. The public is influenced by the factual reports of the happenings inside the Legislature. The Press, being the prime and principal medium for purveying information, must ensure that whatever goes in print must have the hallmark of veracity.
Absolute immunity from proceedings in any court of law has been conferred under the Constitution on all persons connected with the publication of proceedings of either House of Parliament, if such publication is made by or under the authority of the House under article 105(2) of the Constitution in respect of Parliament and article 194(2) in the case of State Legislatures. This immunity does not, however, extend to the publication of reports of parliamentary proceedings in newspapers, whether published by a member of the House or by any other person, unless such publication is expressly authorized by either House. Under the Parliamentary Proceedings (Protection of Publication) Act, 1977*, statutory protection has been accorded to the publication in newspapers or broadcasts by wireless telegraphy of substantially true reports of any proceedings of either House of Parliament, provided the reports are for the public good and are not actuated by malice. Later, the provision was added in the Constitution of India by insertion of article 361A vide the Constitution (Forty fourth Amendment) Act, 1978 w.e.f. 26.6.1979. Article 361A of the Constitution which gives constitutional protection to such publication provides as follows:
(1) No person shall be liable to any proceedings, civil or criminal, in any court in respect of the publication in a newspaper of a substantially true report of any proceedings of either House of Parliament or the Legislative Assembly, or, as the case may be, either House of the Legislature, of a State, unless the publication is proved to have been made with malice:
Provided that nothing in this clause shall apply to the publication of the reports of the proceedings of a secret sitting of either House of Parliament or the Legislative Assembly, or, as the case may be, either House of the Legislature, of a State.
(2) Clause (1) shall apply in relation to reports or matters broadcast by means of wireless telegraphy as part of any programme or service provided by means of a broadcasting station as it applies in relation to reports or matters published in a newspaper.
Explanation-In this article `Newspaper’ includes a news agency report containing material for publication in a newspaper.
This protection has been accorded within the overall limitation that the House has the power to control and, if necessary, to prohibit the publication of its debates or proceedings and to punish for the violation of its orders. In the Lok Sabha, the Secretary-General is authorized to prepare and publish a full report of the proceedings of the House under the direction of the Speaker. The Speaker may also authorize the printing, publication, distribution or sale of any paper, document or report in connection with the business of the House or a committee thereof. Article 118 of the Constitution of India provides that each House of Parliament may make rules for regulating, subject to the provisions of the Constitution, its procedure and conduct of its business. Rule 379 of the Rules of Procedure and Conduct of Business in Lok Sabha empowers the Speaker, Lok Sabha to get a full report of the proceedings of the House, at each of its sittings, published in such form and manner as he may direct from time to time. Each House has the power to control and if necessary, to prohibit the publication of its debates and proceedings. Normally, no restrictions are imposed on reporting the proceedings of the House. But when debates or proceedings of the House or its Committees are reported mala fide or there is wilful misrepresentation or suppression of speeches of particular members, it is a breach of privilege and contempt of the House and the offender is liable to be punished.
It is also a breach of privilege and contempt of the House to publish any part of the proceedings or evidence given before, or any document presented to a Parliamentary Committee before such proceedings or evidence or documents have been reported to the House.
Each House of Parliament, as also a House of the Legislature of a State is the sole judge of its privileges and accordingly it has the power to punish any person for a breach of privilege or contempt of the House and commit the offender to custody or prison. The House may also decide to refer the matter forthwith to the Committee of Privileges. The Parliament and State Legislatures possess not only the power to punish for their contempt but also have the right to judge for themselves what is contempt or what is not?
Before proceeding further, it may be mentioned that apart from the privileges specifically provided in clauses (1) and (2) of article 105, clause (3) of article 105 lays down as follows:
In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of section 15 of the Constitution (Forty-Fourth Amendment) Act, 1978.
The provisions of the Constitution as originally enacted provided that the privileges of members of Parliament were to be the same as those of the British House of Commons, its members and committees at the commencement of the Constitution until our Parliament defined them in whole or in part, by law. In other words, if Parliament enacted any provision relating to any particular privilege at any time, the British precedents would not, to that extent, be applicable to our Parliament. This clause (clause 3) was amended in 1978, to provide that in respect of privileges other than those specified in the Constitution, the powers, privileges and immunities of each House of Parliament, its members and committees shall be those of that House, its members and committees immediately before the coming into force of Section 15 of the Constitution (Forty-Fourth Amendment) Act 1978 w.e.f. 20 June 1979.
Normally, no restrictions are imposed on reporting the proceedings of the House. However, publication of such portions of the debates as have been expunged from the proceedings of the House by the order of the Speaker is a breach of privilege and contempt of the House and accordingly punishable. The famous Search Light Case is mentioned here in this context.
The Search Light* Case
On 30 May 1957, Shri Maheswar Prasad Narayan Sinha, a member of the Bihar Legislative Assembly, during his speech on the general discussion on the Budget for the year 1957-58, made critical reference to one Shri Mahesh Prasad Sinha, who was an ex-minister of Bihar and had been defeated at the last general elections.
On a point of order raised by Shri Satendra Narain Agarwal, a member, the Speaker made the following observations:
I have already ruled with reference to whatever has been said about Mahesh Babu that such words would be expunged from the proceedings but whatever may be said with reference to the Chairman of the State Khadi Board will remain in the proceedings and the hon’ble member has the right to speak on that matter.
However, notwithstanding the Speaker’s direction expunging the portion of the speech, the Search Light, in its issue dated 31 May 1957, published a report of the speech of Shri Maheswar Prasad Narayan Sinha.
On 10 June 1957, Shri Nawal Kishore Sinha, a member of the Bihar Legislative Assembly gave notice of a question of privilege against the Search Light for having published expunged portion of the proceedings of the House of 30 May 1957 containing speeches of Shri Maheswar Prasad Narayan Sinha. On the same day, Shri Nawal Kishore Sinha moved, with the leave of the House, a motion that the matter be referred to the Committee of Privileges. The motion was adopted by the House.
On the direction of the Committee of Privileges, the Editor of the Search Light, Shri M.S.M. Sharma, was served with a notice dated 14 August 1958 issued by the Secretary, Bihar Legislative Assembly, requiring him to show cause, on or before 8 September 1958 as to why appropriate action should not be recommended against him for breach of privilege of the Speaker and the Assembly in respect of the offending publication.
The Editor of the Search Light moved the High Court under article 226 for an appropriate writ, order or direction restraining and prohibiting inter-alia Shri Sri Krishna Sinha, Chief Minister of Bihar and the Chairman, Committee of Privileges and the Secretary, Bihar Legislative Assembly from proceeding further with the enquiry. On 29 August 1958, the petition came up for preliminary hearing and on 1 September 1958, Shri M.S.M. Sharma withdrew that petition allegedly “with a view to avail of the fundamental right granted to him under article 32 of the Constitution”. Shri M.S.M. Sharma filed a petition under article 32 of the Constitution on 5 September 1958 with the Supreme Court of India.
He contended in the Supreme Court that the said notice and the proposed action by the Committee of Privileges were in violation of his fundamental right to freedom of speech and expression under article 19(1)(a) and to the protection of his personal liberty under article 21. Thus, the case raised the issue whether the privileges of the House under article 194 would prevail over the fundamental right of the petitioner under article 19(1)(a).
Interpreting clause (1) of article 194, the Supreme Court in its judgment delivered on 12 December 1958 observed:
……. the words ‘regulating the procedure of the Legislature’ occurring in cl. (1) of art. 194 should be read as governing both ‘the provisions of the constitution’ and the rules and standing orders. So read, freedom of speech in the Legislature becomes subject to the provisions of the constitution regulating the procedure of the Legislature, that is to say, subject to the articles relating to procedure in Part VI, including arts. 208 and 211; just as freedom of speech in Parliament under article 105(1), on a similar construction, will become subject to the articles relating to procedure in Part V, including articles 118 and 121.
The court further observed:
In our judgment the principle of harmonious construction must be adopted and so constructed, the provisions of Article 19 (1) (a), which are general, must yield to article 194 (1) and the latter part of its clause (3) which are special.
* * *
The effect in law of the order of the Speaker to expunge a portion of the speech of a member may be as if that portion had not been spoken. A report of the whole speech in such circumstances though factually correct, may, in law, be regarded as perverted and unfaithful report and the publication of such a perverted and unfaithful report of a speech, i.e., including the expunged portions in derogation to the orders of the Speaker passed in the House may, prima facie, be regarded as constituting a breach of the privilege of the House arising out of the publication of the offending news-item.
It is a breach of privilege and contempt of the House to make speeches, or to print or publish any libels, reflecting on the character or proceedings of the House or its Committees, on any member of the House or relating to his character or conduct as a member of Parliament. When debates or proceedings of the House or its committees are reported mala fide or there is wilful misrepresentation or suppression of speeches of particular member, it is a breach of privilege and contempt of the House and the offender is liable to punishment. In this context, the Blitz case is very pertinent.
On 20 April 1961, Shri Khushwaqt Rai, a member of the Lok Sabha raised a question of privilege regarding publication of a news-item and a photograph of Shri J.B. Kripalani, a member, with the caption ‘The Kripaloony Impeachment’ in the Blitz, a weekly news-magazine of Bombay, published in April 1961. It was inter alia stated in the article that Acharya Kripalani’s impeachment of our defence was “impotent, built upon bad, bald and black lies” and “uttered in the hysteric manner of a violent epileptic”. After a brief debate the matter, on a motion, was referred to the Committee of Privileges for consideration.
The Committee of Privileges in their Thirteenth Report presented to the House on 11 August 1961, reported inter alia:
“Nobody would deny the press, or as a matter of fact, any citizen, the right of fair comment. But if the comments contain personal attacks on individual members of Parliament on account of their conduct in Parliament or if the language of the comments is vulgar or abusive, they cannot be deemed to come within the bounds of fair comment or justifiable criticism. Even the Press Commission (1954) held the view that `comment couched in vulgar or abusive language is unfair’. Nor can `fair comment’ be stretched to include irresponsible sensationalism. …One of Shri Karanjia’s main contentions is that article 105(3) of the Constitution, which provides that “the powers, privileges and immunities of each House of Parliament, and of the member and the Committees of each House shall be… those of the House of Commons of the Parliament of the United Kingdom, and of its members and Committees at the commencement of this Constitution’, must be read as subject to article 19(1)(a) which guarantees to all citizens the fundamental right to freedom of speech and expression’, which includes within its scope the freedom of the Press. Shri Karanjia seems to imply thereby that any action taken by Lok Sabha against any newspaper for a breach of privilege and contempt of the House, in pursuance of its powers and privileges under article 105(3), would violate article 19(1)(a) and be void in terms of article 13. This contention is wrong and cannot be accepted. The provisions of article 105(3) (as also of article 194(3)) are constitutional laws and not ordinary laws made by Parliament (or a State Legislature) and therefore they are as supreme as the provisions of Part III of the Constitution. The provisions of article 19(1) (a) of the Constitution, which are general must therefore yield to the latter part of article 105(3) which are special. The correct position in this regard has been stated by the Supreme Court in the Search light Case.”
The Committee further observed:
“It must, however, be remembered that being only a right flowing from the freedom of speech and expression, the freedom of the Press does not stand on a higher footing than the freedom of speech and expression enjoyed by a citizen and that no privilege attaches to the Press as such, that is to say, as distinct from the freedom of speech and expression of a citizen. Actually, a newspaper writer should be more cautious than a private citizen as his criticisms are widely publicized. The Committee are, therefore, of the view that the impugned dispatch constitutes a breach of privilege and contempt of the House”.
Notwithstanding the observation of the Privileges Committee, Shri Karanjia filed a writ petition in the Supreme Court under article 32 of the Constitution. The writ petition came up for preliminary hearing before the Constitution Bench of the Supreme Court on 28 August 1961. The petitioner had prayed for the reconsideration of the earlier decision of the Supreme Court in the Search Light case. The Supreme Court, however, dismissed the case.
The Keshav Singh Case*
In the Keshav Singh Vs. Speaker, Legislative Assembly, U.P. case, the petitioner was found guilty of the contempt of the House by the Privileges Committee in the matter of publishing and circulating a pamphlet, in Gorakhpur as well as in the precincts of the Legislative Assembly, making allegations of corruption, etc. against Shri Narsingh Narain Pandey, a member of the U.P. Legislative Assembly. The Privileges Committee recommended reprimand. On failing to appear before the Assembly, a warrant for the arrest of the petitioner was issued by the Speaker, U.P. Legislative Assembly. The petitioner was awarded seven days’ imprisonment for having committed another contempt of the House by refusing to answer and face the Speaker and having written a letter protesting against the reprimand and further stating that the contents of the pamphlet were correct and that a brutal attack had been made on democracy by issuing `Nadirshahi Farman’ warrant upon him. Hence the petition. The Allahabad High Court in its judgement held that as regards privileges of Parliament vis-à-vis Fundamental Rights, the power of the House to commit an offender for contempt is identical with that of the House of Commons and that a court of law would be incompetent to scrutinize the exercise of that power. When the matter was referred to the Supreme Court of India by the President, for its opinion, it was held:
In dealing with the effect of the provisions contained in clause (3) of article 194, whenever it appears that there is a conflict between the said provisions and the provisions pertaining to fundamental rights, an attempt will have to be made to resolve the said conflict by the adoption of the rule of harmonious construction.
Both the Legislature and the media are important democratic institutions. As such the relationship between the two has to be one of extreme fine balance. If the media allies closely with the Legislature or the Government, it can undermine its responsibility of reporting everything in its true manifestation and can be influenced to tone down reporting on critical issues. This can generate complacency in the system and undermine media’s effectiveness. Conversely, if the media acts as an adversary, it can tread the path of reporting proceedings and matters in a biased and opinionated manner thereby keeping the people misinformed rather than properly informed.
Sometimes, it is seen that legislative proceedings are disturbed due to various reasons. However, the people who disrupt the proceedings in the legislative Chambers are few in number. The majority of members are aware of the importance of constructive participation in the proceedings of the House, and the high costs involved in the running of legislative, any wastage of time is a direct wastage of valuable public money. No doubt, the overall responsibility of preventing such disruptions actually lies with the members themselves and the political parties, but the media can also play a crucial role in preventing such activities. The media can achieve this firstly by not giving undue prominence to such disruptions, and secondly, and more importantly, by moulding public opinion against unnecessary disruptions.
The media is, in fact, expected to be ever on guard against any unethical interference from any quarter including the political class. At the same time, the political class should also be not influenced by any orchestrated campaign by the media at the behest of any particular interests and must pursue what they think is correct and in the best interest of the country. The ethics of the relationship between the media and the legislators could be governed, primarily, by public interest and their functional autonomy and non-interference in each other’s domain. Both must respect each other’s rights and pursue their role in true democratic spirit.
New Delhi Conference on ‘Parliament and the Media:
Building an Effective Relationship
A Conference on `Parliament and the Media: Building an effective Relationship was organized under the joint auspices of the Commonwealth Parliamentary Association (CPA), the Commonwealth Press Union (CPU), the Commonwealth Journalists Association (CJA) in conjunction with the World Bank, the United Kingdom Foreign and Commonwealth Office and the Parliament of India in New Delhi from 14 to 18 February, 2000.
The Conference brought together Parliamentarians, journalists, publishers and broadcasters for discussions aimed at providing a comprehensive analysis of the philosophical and practical relationship between Parliament and Media in sustaining a well-informed participatory democracy. The aim of the Conference was to determine how their complementary roles in the democratic process could be enhanced to better inform the electorate. The Conference agreed that in order to perform their respective duties, the Parliament and the media must work in harmony. However, it was accepted that a degree of mutual suspicion would always be an essential part of the relationship. A concern was expressed that in almost every commonwealth country, the growing amount of political activity outside Parliament reflected in the media is tending to diminish the role and the importance of the business conducted in the elected Chambers. This, in turn, means that the media is informing the electorate inadequately of the work of its representatives. The Conference for the first time identified ways to improve the relationship between the Parliament and the media, and suggested possible lines of action for Parliaments and Parliamentarians and also for media and journalists to make Parliament the “main game” in the politics of each Commonwealth country, which inter alia include:
What Parliament and Parliamentarians can Do
· Recognize the value of an independent media in contributing toward the development of a well-informed society through its exposure to a wide range of well-articulated views.
· Appreciate that the media are also responsive to the people, serving as their watchdog in reporting the actions of Parliaments and governments.
· Develop more imaginative and attractive ways to enhance parliamentary coverage so that the people are encouraged to take greater interest in their society’s principal democratic forum.
· Take steps to raise the standard of parliamentary debate by: striving to elect high caliber candidates, enhancing research support, encouraging a better awareness of what the media needs, and discouraging unruly behaviour, abusive language and personal attacks in the Chamber which inevitably lead to adverse media coverage.
· Respect the media as a legitimate reflection of public opinion, public concerns and social problems and reactions to policies and programmes.
· Public broadcasting should be allowed to be politically impartial.
What the Media and Journalists can Do
· Gain a comprehensive knowledge of, and respect for, the role and position of Parliament and Parliamentarians.
· Expose the public more to the battle of ideas by providing balanced coverage of Parliament and paying attention to views expressed by opposition and all MPs.
· Ensure that parliamentary and political news coverage and analysis are clear, factual, objective and differentiated from opinion.
· Avoid conducting relations with Parliaments in an adversarial manner or in a way, which unfairly denigrates Parliaments and their members.
· Provide constructive criticism and informed and fearless coverage of political issues so that an increasingly aware electorate has the information it needs to participate in the democratic process.
· Refrain from fabricating controversies and overplaying internal differences of opinion within political parties, which may often be no more than honest disagreements over policy.
· In formulating standards, consider codes already in place elsewhere in the Commonwealth; but standards set for each country must reflect local circumstances.
Cape Town Conference on ‘Parliament and the Media :
Securing an Effective Relationship’
A set of principles to guide societies in developing fully informed democracies have been proposed by Commonwealth Parliamentarians and media professionals at a Conference on “Parliament and the Media : Securing an Effective Relationship” which was hosted by the Parliament of South Africa from 14 to 18 April 2002. Some of the principles are:
The advancement of society :
· Political leaders must not seek to stifle the airing of opposing views and must pay attention to diverse opinions as expressed through the media.
· The media should provide balanced coverage of public policy debates without trivializing or denigrating the parliamentary and governmental decision-making processes. The Journalists should be free to criticize policies, policy makers and the effectiveness of the democratic process.
· Parliamentarians should recognize the value of fair and accurate reporting as a channel for public feedback to assist them to legislate, formulate policy and scrutinise government performance.
· Journalists need to understand the issues crucial to all segments of the population and play their full part in informing the public about the challenges facing their society.
· Of particular benefit are orientation courses for Members and journalists on parliamentary practices and procedures, and adequate research support for members.
· Government should in turn ensure that education system encourage the development of citizens who can understand and assess for themselves the policy issues debated in Parliament and in the media.
· Parliamentarians, journalists and the public should have access to a variety of print, broadcast and Internet-based media to end reliance on government information or party-run information sources.
· Investment in all forms of independent media should be encouraged. The media should pool their often-limited resources to improve the coverage of Parliament and other institutions.
· Parliamentarians should conduct debate in a respectful and well-informed manner.
· The media should establish self-regulatory codes of professional conduct and should pursue fact-based, fully substantiated reporting.
· Societies must accept that periodic abuses by individual Parliamentarians and journalists of their rights and freedoms, and of their special positions in society, must not be used as reasons to curb the legitimate performance of their roles. The freedoms accorded to Parliamentarians and the media reflect the supremacy of the ultimate right of the public to be informed.
· Media organisations should retain more experienced reporters and should assign such reporters to cover Parliament.
· The media’s responsibility is to inform the electorate of the conduct and performance of the representatives they have elected.
· Journalists should be encouraged to report on public policy issues that are relevant to everyone and not just the economic elite.
Conclusion
An effective relationship between the media and legislators can go a long way in furthering the cause of democracy. A harmonious relationship between the Legislature and the media is crucial as they both work towards the same goal of strengthening democracy, even though their methods are different. It is possible to achieve only when both have knowledge, understanding and the appreciation of each other’s roles, functions and responsibilities. Press should avoid publishing anything which could create communal, fundamentalist, ethnic and other sectarian divisions in the society. The media should keep in mind the national security, unity and national interests and should work towards strengthening democracy.
Adequate legal framework should be created to define broadly what is allowed to the media and what they should not do. Institutions like Press Councils can be most effective for the purpose of enforcing media ethics. In many countries, Press Councils examine complaints against the media and give verdicts. The World Association of Press Councils (WAPC) is pursuing vigorously its agenda of persuading the media in every country to evolve journalistic ethics and to establish media councils. In this connection, the Press Council of India established under the Press Council Act of 1978, acts for preserving the freedom of the Press and maintaining and improving the ethical standards of the Press in India, and evolving a code of conduct for newspapers, news agencies and journalists. On their part, the legislators should also contribute substantially towards protecting the freedom of the media and at the same time, make it more responsive to the needs of the society. The media has enormous potential to cultivate the democratic culture, which many of the emerging democracies are in need of. It can make citizens interested and vigilant in public affairs and ensure that public institutions function in a more responsible manner. Thus, the legislators and the media can engage in a complementary and cooperative manner.
* Originally this law was enacted by the Parliament in 1956. During the term of the Fifth Lok Sabha, the law was repealed in 1976. The law was re-enacted in 1977.
* M.S.M. Sharma V. Shri Sri Krishna Sinha, (Search Light Case) A.I.R. 1959 SC 395.
* In re. Keshav Singh , AIR 1965 SC 745, to Presidential Reference No. 1 of 1964,
To be constructed in next
session.