The Hindu : Press freedom vs its adversaries

Online edition of India's National Newspaper
Wednesday, Nov 12, 2003

Opinion

Opinion - Editorials

Press freedom vs its adversaries

AS IT WENT to the Supreme Court for immediate relief as well as for a deeper correction of an unsavoury situation that affects not merely this 125-year-old newspaper and five of its senior representatives but the very future of the free press in India, The Hindu based its action on its firm conviction in the truth of three basic propositions. The first is that the freedom of the press, which was won in the freedom struggle that gave birth to this newspaper and has been specifically derived by judicial interpretation from Articles 19(1)(a) and Article 19(1)(g) of the Constitution, is an inalienable fundamental right. The second proposition is that this fundamental right, which has certain "reasonable restrictions" under stipulated categories applying to it, continues to be highly valued by both constitutional and political India. Institutionally speaking, the higher judiciary and above all the Supreme Court can always be relied upon to uphold freedom of the press.

The third and critical proposition in relation to the issues at stake in the present case is that in India, unlike the United Kingdom, it is the Constitution — not any legislative body, not the Tamil Nadu Legislative Assembly, not even the Lok Sabha — that is supreme or sovereign. It follows that the powers and privileges of any limb of the state are subject to the provisions of the Constitution, including of course the ensemble of fundamental rights that the supreme law privileges. When there are constitutional questions or controversies, including those relating to what legislative bodies may and may not do, it is the apex court that must be accepted as the final interpreter and adjudicator. It is inconceivable that the power of judicial review cannot be asserted in relation to a case where the contention is that authoritarian and arbitrary action unleashed in the name of legislative privilege comes into direct conflict with Article 19 freedoms, with personal liberties guaranteed in the class of constitutional provisions that constitute the celebrated "Right to Freedom", and with the principles of natural justice.

This newspaper approached the Supreme Court in the knowledge that reliefs such as the grant of interim stay on warrants of arrest issued by presiding officers of legislative bodies have indeed been ordered in the past by the highest court; and that in an important 1994 judgment, a full bench of the Madras High Court even ordered a token monetary compensation to the petitioner for the violation of his fundamental rights under the banner of legislative privilege. It is a vindication of The Hindu's confidence in these three propositions that the Supreme Court granted on Monday a stay on the warrants of arrest issued by the Speaker against five of its senior representatives who had been sentenced to 15 days' simple imprisonment for alleged breach of privilege. Are the Speaker of the Legislative Assembly, the police and the executive branch bound by this order of the highest court in the land? The answer is a resounding yes. It is obvious that anyone who goes against the order in any way does so at his or her peril. The order of stay apart, the most gratifying development of the last few days must be the spontaneous expression of solidarity with The Hindu that has come from all sections of the press and the other news media, from media organisations spread across the country and beyond, from all political parties barring the party ruling Tamil Nadu, from various other organisations and individuals — and from a large cross-section of the newspaper's readers. In particular, the voice of outrage heard from small towns is a reassuring revelation that the national traditions of democratic protest remain intact. This re-emergence of organised public action on vital institutional issues as well as civil society's capacity for healthy mobilisation must be welcomed as a much-needed antidote to creeping cynicism in Indian public life.

The Hindu expresses its gratitude to all those who stood by it when crude police methods — an invasion of its head office without warrants or lawful authorisation, arbitrarily executed searches of the homes of four of the five persons sentenced, the drama of a gang-style interception of a car in which two senior representatives of the newspaper were travelling in Bangalore, and other police acts designed to create a climate of intimidation and insecurity even after the Supreme Court stayed the warrants of arrest — interfered gravely with the newspaper's functioning.

One good thing that has come out of the unsavoury experience imposed on the newspaper through a crude and unconstitutional executive misadventure is the spotlighting of large institutional issues. The Hindu's editorial understanding is that these basic issues relating to Article 19(1)(a), personal liberties and the principles of natural justice need to be settled — not just questions relating to the peculiar facts of the case. Existing privilege laws give legislatures too much discretion to decide what constitutes a breach of privilege or contempt of the House. As things stand, there is no clear definition of what constitutes a breach of privilege. As a result, it becomes next to impossible for anyone to know whether a certain act constitutes contempt of the House. Among other things, this militates against the common principle in criminal law that an offence is defined before the commission of an act and not determined retrospectively. The Constitution does not comprehensively spell out the privileges of Parliament or State Assemblies. However, Articles 105 (3) and 194 (3) make it clear that the ultimate objective of the Constitution's framers was to see that laws made by the legislatures themselves should define privileges. Such codification would put paid to any claim of `sky-high powers', explicit or implicit, claimed by any legislative body or its presiding officer. The latest developments reinforce the longstanding demand within the media that legislative privileges should be codified. This should be done through a carefully crafted statute that explicitly recognises the application of the power of judicial review to cases of breach of privilege, especially cases where legislative privilege comes into conflict with fundamental rights.

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