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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