The Hindu : Freedom of the press

Online edition of India's National Newspaper
Saturday, Jan 31, 2004

Opinion

Opinion - Leader Page Articles

Freedom of the press

By Rajindar Sachar

The improvement of the freedom of the press has been recognised as the sheet anchor of democracy.

PRIVILEGES ENJOYED by an individual or an institution are always suspect. Those who enjoy them are reluctant to give them up. It may be that certain privileges are essential for the proper functioning of an institution. Contempt of court may be necessary for the judiciary to be able to administer justice fearlessly and impartially. But then, it is not possible to accept that the judiciary needs to be so much immunised that even truth should not be allowed to be pleaded as defence in a charge under contempt of court. Similar constraint should determine the role of legislatures.

State Legislatures and parliamentary privileges are mentioned in Article 105 and Article 194 of the Constitution. The extent of the privileges of the State Legislature in the context of Article 19 of the Constitution [freedom of speech and expression] came up for consideration before the Supreme Court in the Searchlight case (1959). The majority (4:1) recognised the anomaly arising out of the fact that privileges have not been codified but nevertheless held that Article 19 could not be invoked against the diktat of the legislature, however arbitrary or capricious it may be, but comforted itself thus "... .. Nor do we share the view that it will not be right to entrust our Houses with these powers, privileges and immunities, for we are well persuaded that our Houses, like the House of Commons, will appreciate the benefit of publicity and will not exercise the powers, privileges and immunities except in gross cases... " Future would show how misplaced this confidence was.

But Justice Subba Rao, in a powerful dissent, said: "...The contention also, if accepted, would lead to the anomaly of a law providing for privileges made by Parliament or a legislature of our country being stuck down as infringing the fundamental rights, while the same privilege or privileges, if no law was made, would be valid... " He therefore held "When there is a conflict, the privilege should yield to the extent it affects the fundamental right. This construction gives full effect to both the Articles... "

This controversy arose again before the Supreme Court (Soloman case) in 1965 when a warrant of arrest was issued by the Uttar Pradesh Assembly for the arrest of Soloman, a journalist. The warrant was issued despite the stay granted by the full Court of Allahabad on the warrant issued by the Speaker. The Court held that the construction of the latter part of Article 194 (3) was decisively against the view that "a power or privilege can be claimed by the House though it may be inconsistent with Article 21... "

The Court also with a sleight of hand cautioned against the misuse of the power of privileges being exercised by the Legislature to satisfy its ego, thus: "... We ought never to forget that the power to punish for contempt 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 or status of the Court. We venture to think that what is true of the judiciary is equally true of the legislature."

It is worth noting that the Searchlight and the Keshav cases were decided by the Supreme Court when the view prevailed that if a matter fell within one entry, say Article 194(3), and which granted supremacy to the Legislature, it could not be watered down by invoking the fundamental rights chapter. But this view was overruled in the Cooper case (1970), where, in the context of acquisition of property which was at that time specifically covered by Article 31, the Court held that it was unable to agree that Articles 19 (1) (f) and 31 (2) were mutually exclusive.

Now the importance of the freedom of the press has been recognised as the sheet anchor of democracy. Jawaharlal Nehru said in 1950 "I have no doubt that even if the Government disliked the liberties taken by the press and considers them dangerous, it is wrong to interfere with the freedom of the press. I would have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed or regulated press."

President Thomas Jefferson of the United States wrote "were it left to me to decide whether we should have a government without newspapers, or newspapers without government, I should not hesitate a moment to prefer the latter."

The exercise of the arbitrary power by legislators has persuaded many responsible quarters to voice their concern over the lack of codification. The Indian Press Commission (1954) said "it would be desirable that both Parliament and State Legislatures should define by legislation the precise powers, privileges and immunities which they possess in regard to contempt and the procedure for enforcing them. But while addressing the conference of Presiding Officers of Legislative bodies in India, Mavlankar, Speaker of the House (1955) gave a short shrift to this pre-eminently sound proposal thus. "No codification appears to be necessary".

In 1986, the Supreme Court put it very strongly: "In today's free world, freedom of press is the heart of social and political intercourse. But the lack of codification is severely restricting the capacity of the press to do its social duty of exposing the misdeeds of the governments, and thus [to] do its duty without fear or favour."

But human nature being what it is, renunciation of power is a Herculean task. Even the mild report of the Venkatchaliah Commission could not but help deprecate the excessive claim of privileges by the legislators. The report says "Privileges of Members are intended to facilitate them in doing their work to advance the interests of the people. They are not meant to be privileges against the people or against the freedom of the press. The Commission recommends that the time has come to define and delimit privileges deemed to be necessary for the free and independent functioning of Parliament. It should not be necessary to run to the 1950 position in the House of Commons every time a question arises as to what kind of legal protection or immunity a Member has in relation to his or her work in the House."

Will the legislators listen? They are frank enough to concede that they are not saints; but are only politicians.

But the voters, in this election year, can demand a categorical promise from all political parties that they will codify privileges with a straight caveat that their refusal to include it in their manifesto will entail the loss of their votes. Maybe, the legislators will wake up and realise the wrath of average citizens against this claim to a superior class of new potentates.

(The writer is a former Chief Justice of the Delhi High Court)

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