Parliamentary Privilege – Issues In Media
A
Dissertation on
Parliamentary Privilege – Issues In Media
By
Kapil Suravaram
NALSAR ID No. Mlh07_03
A Project paper submitted in partial fulfillment of
P.G. Diploma in Media Laws for Module – II (Media & Regulatory Framework)
AUGUST 2004
NALSAR
What is Parliamentary Privilege and its scope?
Consent of Speaker necessary to raise a question of privilege
Notice of question of privilege
How to raise a question of privilege?
Consideration of a question of privilege
Reference to Committee of Privileges by Speaker
Power of Speaker to give Directions
AN OVERVIEW OF THE CONSTITUTIONAL PROVISIONS AND OTHER LEGISLATIONS REGULATING FREEDOM OF PRESS
PRESS FREEDOM- CURRENT SCENARIO
Can the Supreme Court interfere?
Like any other Democracy the three pillars of Indian Democracy are the Legislative, Executive and the Judiciary and as across the media as the watch dog has come to be known as the fourth estate. The fathers of our constitution in their work gave extreme importance towards aspects regarding maintaining of equilibrium between these estates and to prevent excesses on each other. As part of this exercise, the constitution gives some exclusive privileges to the Parliament. These have been termed as Parliamentary Privileges. However the framers of our constitution left it to the Parliament to codify these exceptional privileges. This codification has not taken place despite five decades lapsing since their inception. However these privileges have been put to use at will.
This has raised questions on the objectivity of the existence of such privileges. The powers of these exceptional privileges have been trained towards exercising control over the media. The recent decisions of the speaker of the Tamil Nadu Assembly, The Tehelka Case, etc., have turned the limelight onto this subject. This study is an effort to analyze the legal structures maintaining the balance between the Legislative and the media.
The objective of parliamentary privilege is to safeguard the freedom the authority and the dignity of parliament. Privileges are necessary for the proper exercise of the functions entrusted to Parliament by the constitution. They are enjoyed by individual members, because the house cannot perform its functions without an unimpeded use of the services of its members; and by each house collectively for the protection of its members & the vindication of its own authority and dignity.
In modern times, Parliamentary Privilege has to be viewed from a different angle then in the earlier days of the struggle of Parliament against the Executive authority. Privilege at that time was regarded as a protection of the members of the Parliament against an executive authority not responsible to parliament. The entire background in which privileges of parliament are now viewed has changed because the executive is now responsible to parliament. The foundation upon which they rest is the maintenance of the dignity and independence of the house and of its members.
Parliamentary Privileges is as much a social subject as it is a legal subject. This study tries to make a socio study of the legal aspects of the Parliamentary Privileges and counter checks and balances in regard to the media. In an endeavor to make a systematic effort in that direction the project first looks into the concept and scope of Parliamentary Privileges. Then it dwells into the constitutional provisions and the laws protecting the freedom of press. Then this in weighed against the current scenario of press freedom. It is juxtaposed with the case studies of conflicts between the media and the parliamentary structures. Through this study it has tried to trace the the balances or imbalances in the equilibrium between the different estates.
What is Parliamentary Privilege and its scope?
In Parliamentary language, the term ‘privilege’ means certain rights and immunities enjoyed by each House of Parliament and its Committees collectively, and by the members of each House individually without which they cannot discharge their functions efficiently and effectively. The object of parliamentary privilege is to safeguard the freedom, the authority and the dignity of Parliament. They are enjoyed by individual members, because the House cannot perform its functions without unimpeded use of the services of its members, and by each House collectively for the protection of its members and the vindication of its own authority and dignity. But they are available to individual members only insofar as they are necessary for the House to perform its functions freely without any let or hindrance. They do not exempt the members from the obligations to the society which apply to other citizens. Privileges of Parliament do not place a member of Parliament on a footing different from that of an ordinary citizen in the matter of the application of laws, unless there are good and sufficient reasons in the interest of Parliament itself to do so.
Some of the more important privileges of each House of Parliament and of its members and committees are freedom of speech in Parliament, immunity to a member from any proceedings in any court in respect of anything said or any vote given by him in Parliament or any Committee thereof, immunity to a person from proceedings in any court in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings, prohibition on the courts to inquire into proceedings of Parliament and freedom from arrest of members in civil cases during the continuance of the session of the House and forty days before its commencement and forty days after its conclusion.
The privilege of freedom from arrest does not, however, extend to preventive arrest or detention under statutory authority by executive order and in criminal cases. Intimation regarding arrest, detention, imprisonment and release etc. of members under such cases has to be immediately communicated to the Speaker, Lok Sabha by the concerned authorities in the prescribed form.
When any individual or authority disregards or attacks any of the privileges, rights and immunities, either of the members individually or of the House in its collective capacity, the offence is called a breach of privilege and is punishable by the House. Besides breaches of specific privileges, actions in the nature of offences against the authority or dignity of the House, such as disobedience to its legitimate orders or libels upon itself, its members or officers, are also punishable as contempt of the House.
Contempt of the House may be defined generally as "any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any member or officer of such House in the discharge of his duty or which has a tendency, directly or indirectly, to produce such results". Some of the important types of the contempt of Parliament are—speeches or writings reflecting on the House, its Committees or members; reflections on the character and impartiality of the Speaker in the discharge of his duty, publication of false or distorted report of the proceedings of the House; Publication of expunged proceedings of the House, molestation of members on account of their conduct in the House or obstructing members while in the performance of their duties as members or while on their way to or from, attending the House or a Committee thereof, offering bribes to members to influence them in their Parliamentary conduct, and intimidation of members in connection with their Parliamentary conduct.
Consent of Speaker necessary to raise a question of privilege
A member may, with the consent of the Speaker, raise a question involving a breach of privilege or contempt either of a member or of the House or of a Committee thereof.
Notice of question of privilege
A member wishing to raise a question of privilege has to give notice in writing to the Secretary- General before the commencement of the sitting by 10.00 hours on the day the question is proposed to be raised. Notices received after 10.00 hours will be deemed to have been received at 10.00 hours on the next day on which the House sits. If the question sought to be raised is based on a document, the notice should be accompanied by the document.
Right to raise a question of privilege is governed by the following conditions, namely:—
(i) not more than one question should be raised at the same sitting;
(ii) the question should be restricted to a specific matter of recent occurrence;
(iii) the matter requires the intervention of the House.
In giving his consent, the Speaker is guided by the above conditions of admissibility of question of privilege and the past precedents relevant to the matter.
On receipt of the notice the matter is considered by the Speaker who may either give or withhold his consent to the raising of the question of privilege in the House. The Speaker, however, before deciding whether the matter proposed to be raised as a question of privilege requires the intervention of the House and whether he should give his consent to the raising of the matter in the House, may give an opportunity to the person incriminated to explain his case to the Speaker. The member concerned is then informed of the Speaker’s decision. After the decision of the Speaker that he has withheld his consent to the raising of the matter in the House is conveyed to the member, the member is not permitted to raise the matter in the House. However, if the member is not satisfied, he may see the Speaker in his Chamber to explain his case.
How to raise a question of privilege?
If the Speaker has given his consent to the raising of a matter in the House as a question of privilege, the member who tabled the notice has, when called by the Speaker, to ask for leave of the House to raise the question of privilege. While asking for such leave, the member concerned is permitted to make only a short statement relevant to the question of privilege. If objection to leave being granted is taken, the Speaker requests those members who are in favour of leave being granted to rise in their places. If twenty-five or more members rise accordingly, the House is deemed to have granted leave to raise the matter and the Speaker declares that leave is granted; otherwise the Speaker informs the member that he does not have leave of the House to raise the matter.
Leave to raise a question of privilege in the House can be asked for only by the member who has given notice of the question of privilege. He cannot authorise another member to do so on his behalf.
A question of privilege is accorded priority over other items in the List of Business. Accordingly, leave to raise a question of privilege is asked for after the questions and before other items in the List of Business are taken up. Urgent matters requiring immediate intervention of the House may, however, be allowed by the Speaker to be raised at any time during the course of a sitting after the disposal of questions but such occasions are rare.
Consideration of a question of privilege
After leave is granted by the House for raising a question of privilege, the matter may either be considered and decided by the House itself, or it may be referred by the House, on a motion made by any member, to the Committee of Privileges for examination, investigation and report. The usual practice is, however, to refer the matter of complaint to the Committee of Privileges, and the House defers its judgement until the report of the Committee has been presented to the House. However, in cases where The House finds that the matter is too trivial or that the offender has already tendered an adequate apology, the House itself disposes of the matter by deciding not to proceed further in the matter.
Reference to Committee of Privileges by Speaker
The Speaker is empowered to refer suo motu, any question of privilege or contempt to the Committee of Privilege for examination, investigation and report. In doing so, the Speaker need not bring the matter before the House for consideration and decision as to whether the matter be so referred to the Committee. Reports of the Committee on matters so referred are presented to the Speaker who may direct that the Report be laid on the Table of the House.
Power of Speaker to give Directions
The Speaker may issue such directions as may be necessary for regulating the procedure in connection with all matters connected with the consideration of the question of privilege either in the Committee of Privileges or in the House.
[Questions of privilege are governed by article 105 of the Constitution and Rules 222—228 and 229— 231 of the Rules of Procedure and Conduct of Business in Lok Sabha.]
AN OVERVIEW OF THE CONSTITUTIONAL PROVISIONS AND OTHER LEGISLATIONS REGULATING FREEDOM OF PRESS[1]
Freedom of press has always been a cherished right in all democracies . "Growth and development of representative democracy is so much intertwined with growth of press that the press has come to be recognized as an institutional limb of modern democracy."[i]
The newspaper not only presents facts but also gives interpretation of facts and statements of opinions through its editorials and also propagates ideas and ideologies. They are supposed to guard public interests by bringing to fore the misdeeds, failings and lapses of the government and other bodies exercising governing power. The press has therefore been rightly described as the Fourth Estate.
And hence it is also very necessary to limit this influential institution's powers.
"Freedom of Press is not absolute, unlimited and unfettered at all times and in all circumstances as it would lead to disorder and anarchy."[ii]
The Indian Constitution provides for this freedom in Article 19(1)(a) which guarantees right to freedom of speech and expression. It has been held that this right to freedom also includes press freedom. It is an implied or deduced right.[The economic and business aspects of the press are regulated under Article 19(1)(g) which provides for freedom of profession , occupation, trade or business which is restricted by Article 19(6) which includes provisions for public interest, professional and technical qualifications and state nationalization- total or partial.
Freedom granted under Article 19(1)(a) is restricted by the limitations which are mentioned in Article 19(2) which provides that the guarantee of the above right would not affect the operation of any existing law in so far as it is related to , or prevent the state from making any law relating to libel, slander, defamation, contempt of court or any matter which offended against decency or morality or which undermined the security of or which tended to overthrow the state.
Article 19(2) has been amended twice since the commencement of the Constitution. The first Amendment was in 1951 and it was followed by a second one in 1963.
Article 19(2)was first amended by the Constitution (First Amendment) Act ,1951. This Amendment enlarged the scope of the restrictive clause by addition of three new grounds viz. Friendly relations with foreign states , public order and incitement to an offence.
The term 'defamation' being a generic one and 'libel' and 'slander' being its species ; that term and the words 'tends to overthrow the state' was dropped by the Amendment. The expression 'security of the state' was meant to cover the ground 'to over throw the state' also. Another feature of the first Amendment was inclusion of the word "reasonable" before the word "restrictions".
As a result of the cries and agitation for secession from
The clause, Article 19(2) now runs as follows :
"Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the state from making any law , in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interest of the sovereignty and integrity if India, the security of the state , friendly relations with foreign states ,public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence."
Although Article 19 (1)(a) is limited by the above clause the courts have adopted a liberal view while deciding questions pertaining to press freedom of constitutional validity of an impugned statute. The superior courts discharged the role of sentinel on the 'qui vive'.
The Supreme Court has emphasized the great value of the freedom of press in democratic society. Thus from the start the judiciary has vindicated the stand taken in the Constituent Assembly .
In Romesh Thappar v State of Madras[iii] the Supreme Court struck down as violative of Article 19(1) (a) , the Madras Maintenance of Public Order Act 1949, whose section 9[1A] sought to impose restrictions on the freedom of press not against undermining the security of the state or its overthrow but for the wider purpose of securing public safety or maintenance of public order ;as in the opinion of the Court the law fell outside the scope of Article 19(2).
The Court laid down the following rule that so long as the possibility of a law being applied for purposes not sanctioned by the Constitution cannot be ruled out , it must be held to be wholly unconstitutional and void since it is not severable.
The Court also struck down in Brij Bhushan v State of Delhi[iv] which was essentially on the same lines , the East Punjab Public Safety Act1949 which, through its section 7 (1) (o) , provided for special measures to ensure public safety and the maintenance of public order.
In re the Bharati Press the validity of section 4 (1) (a) of the Press [Emergency Powers] Act 1931 was in question. The section which dealt with incitement to an offence was held to be worded in general terms and was declared ultra vires by the Patna High Court as it could have been applied to both 'aggravated forms of offences like political assassination and as also to ordinary murders or cognizable offence involving violence .'
Hence Constitution [First Amendment]Act ,1951 was passed to include the grounds of public order and incitement to an offence to meet the situation which arose from Supreme Court's decision in Romesh Thappar's case.[v]
Brij Bhushan v State of Delhi[vi] also dealt with the question of validity of censorship . It was held that such censorship on a journal previous to its publication would amount to infringement of Article 19(1)(a).
The Supreme Court held in the Auto Shanker case that the government has no authority in law to impose a prior restraint upon publication of defamatory material against its officials.[vii] The Court also observed that to propagate ones ideas every citizen has a right to publish, disseminate and circulate them to reach any class and any number of readers subject of course to the limitations permissible under a law competent under Article 19(2).[viii]
Freedom of press is also both qualitative and quantitative.[ix] The view of the Courts regarding press freedom can be summed up as follows:
"The expression 'freedom of press' has not been used in Article 19.but it is comprehended within Article 19(1)(a). The expression means freedom from interference from authority which would have the effect of interference with the content and circulation of newspapers. There cannot be any interference with that freedom in the name of public interest. 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. Freedom of press is a heart of social and political intercourse, It is the primary duty of Courts to uphold the freedom of press and invalidate all laws or administrative actions which interfere with it contrary to the constitutional mandate."[x]
The 44th Amendment[1978] of the Constitution also provides for constitutional protection for journalists from 'breach of parliamentary privilege' as they are allowed to publish proceedings of the Parliament and state legislatures . Article 361-A was incorporated into the Constitution by this amendment and it provides that
No person shall be liable to any proceedings, civil or criminal , in any Court in respect of the publication in 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 legislature of a state; unless publication is proved to have been made with malice. But this immunity does not apply to the publication of a report of a secret sitting of a house.
Prior to the amendment this protection was given only by a parliamentary law-Parliamentary Proceedings (Protection of a Publication) Act ,1956.
But the legal implications arising out of the concept of 'press freedom' are many and hence they are not confined to the constitutional provisions alone. The different aspects of it infringe inter alia on criminal law , law of contempt, Copyright Act , Official Secrets Act, Freedom of Information Act, Law of torts, Prevention of Insults to National Honour Act etc , to name a few .
These laws deal with different issues like those of decency or morality, the issue of privacy Vs right to information, defamation etc. Issues arising due to investigative reporting are also dealt with by these laws. There are also exclusive press laws like Working Journalists Act, Press Councils Acts, Newspapers Act, Press and Registration of Books Act etc. The Press Councils Act created the quasi judicial body- Press Council of India.
Article 19 of Universal Declaration of Human Rights is also recognized and followed in
"Every one has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless frontiers."
PRESS FREEDOM- CURRENT SCENARIO
Freedom of press or rather the lack of it as an issue has gained importance in the last 2- 3 years. Some of the recent incidents which has brought the issue to the forefront are as follows:
Spearheading the list is the Tehelka episode where the news portal was forced to shut down completely following the continued harassment of its [Tehelka.com's] journalists ;for having exposed the 'scam' in the defense department involving ex–defense Personnel's and central government ministers . Another issue which created a lot of hue and cry over press freedom was the threat to expel Alex Perry of the TIME magazine which questioned the then Prime Minister Vajpayee's physical fitness to lead the country. Journalists working in Gujarat and
But the latest controversy which has brought the perennial problem[xi] of protection of freedom of speech and press from arbitrary exercise of the power of punishing for contempt possessed by the legislature, back in to limelight, is the action of the Tamil Nadu Legislative Assembly, of punishing the editors and journalists of The Hindu for publishing reports of speeches in the Assembly and for editorial comments on its action of referring those reports to its privilege committee.
The root and justification for the existence of the power of the Parliamentary Privilege given by our Constitution lies in the ancient privilege given to English House of Commons in 1689. But these powers of the house which have been referred to as "insult laws"[xii], have been condemned and scrapped in most of the nations. The powers of commitment to prison which were described in
But as far as the situation in
Part III .[xiii] But as we see , in the 'Reference Case' ,[xiv] it has not been possible for Supreme Court to maintain this proposition in toto, as it questioned the theory that the exercise of the Legislature's right to punish for contempt was absolute and uncontrolled as it held that any action of the Legislature was examinable by the Court if it was violative of the fundamental right to freedom embodied in Article 21 [right to life and personal liberty] of the Constitution.
The result is that this uncertain situation will continue , until the Supreme Court launches into the area and clarifies its previous decisions which are conflicting and legislators come forward to codify the privileges. Mean while the power of Parliamentary privilege can be subjected to judicial scrutiny [judicial review] as every authority or power should be exercised within the constitutional limits.
As Chief Justice (retd.) P.N.Bhagwati had put it " Every organ of the government, be it executive, legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of its authority. No one, howsoever highly placed, and no authority, howsoever lofty can claim that it shall be the sole judge of the extent of its power under the Constitution."
A permanent solution is necessary as despite the Courts' earlier decisions matter has been raised again and again. The seriousness of the matter also calls for an urgent need for codification of Parliamentary Privilege as there is no other alternative. The legislators' reluctance to codify has been attributed to the reason that it would mean limiting their powers; as the Court has made it quite clear that if the Parliament or a State Legislative enacted a law under Articles 105(3) or194(3) respectively to define its privileges then such a law would be subject to Article 19(1)(a) and a competent Court could strike down that law under Article 13 of the Constitution if it violated or abridged any of the fundamental rights.[xv]
Tamil Nadu Case
The second week of November has been a dramatic one in the relationship between the media, legislature and judiciary in
The November 7th’s arrest warrants are actually the fallout of developments in April when the assembly speaker took suo moto cognisance of alleged acts of breach of privilege by the paper and referred the matter to the privileges committee of the House. The privileges committee had submitted its report in the assembly on Friday and its recommendations were accepted by a resolution moved by Finance Minister C Ponnaiyan.
On November 10 the Supreme Court stayed the arrest warrants. The journalists had challenged a resolution of the House sentencing them to 15 days imprison-ment for breach of privilege. The Bench, while ex-parte staying the arrest warrants issued by the Speaker K Kalimuthu on November 7, restrained the police and officers of Tamil Nadu and any other State from executing the warrants.
However, the Court said that it would hear respondents on the prayer of the petitioners challenging the legality of the resolution passed by the Assembly on November 7. The court issued notice to Attorney General Soli J Sorabjee seeking his assistance in the matter and directed the petitions to be listed after three weeks for further hearing.
Can the Supreme Court interfere?
Senior advocate Harish Salve, appearing for The Hindu journalists, was countered right at the beginning of hearing by the Bench which asked him to elaborate about the scope and extent to which the Court could interfere in the matter. The Bench sought to know as to what extent the judicial review could be exercised in matters pertaining to the orders passed by the Speaker pursuant to the power exercised by the Assembly under Article 194 of Constitution dealing with the privileges of the House.
Maintaining that powers under Article 194 had to be read harmoniously with right to freedom of speech and expression guaranteed under Article 19, Salve said that the privileges of the House has to yield when the right to life and liberty of a person guaranteed under Article 21 was in question. Giving details of the newspaper articles and an editorial found to be in breach of privilege, he said the House could not unilaterally decide whether the criticism made by the newspaper breached the privilege or not.
The Bench observed "Every institution, be it legislature, media or judiciary, has to respect the other institutions. None of the institutions should cross the Lakshman Rekha or be hyper-sensitive to harsh words of criticism". Following the stay on the arrests the Chief Minister of Tamil Nadu, J Jayalalithaa has said in a letter to the Deputy Prime Minister that the court’s orders will be respected
The Hindu’s coverage of the previous assembly session came in for sharp criticism from the Speaker. The Speaker took exception to usage of phrases like "Chief Minister Jayalalithaa’s stinging abuse" and "unrestrained attacks on the opposition" in the reports that the paper carried. In one incident during the last session, the Speaker had pulled up the reporter of 'The Hindu' along with one more reporter from another paper for talking in the press galleries. A report in 'The Hindu' with the headline "Jayalalithaa taunts Marxists again" was dismissed as contrary to facts.
The speaker said the reports were intended to "blacken the reputation of thegovernment." The paper's editorial "Rising intolerance" on April 25 last was charged with imputing motives to the actions of the Speaker and tarnishing the entire assembly, its members and the privileges committee itself.
(The Hindu editorial had observed: "With each passing day, the Jayalalithaa administration in Tamil Nadu seems to be scaling new heights of intolerance. The crude use of state power against various sections including political opponents and the independent media shows a contempt for the democratic spirit that is deeply disturbing.)
However, it is not the first time journalists have had a run in with the legislature. In 1987,
In April 1992 an arrest warrant had been issued against K P Sunil, correspondent of the Illustrated Weekly of India for an article that carried the headline 'Tamil Nadu Assembly fast Gaining Notoriety.' On all three occasions the AIADMK was in power. While the party founder MGR was chief minister in the first two instances, Jayalalithaa was at the helm during the Sunil episode.
The question at this point is, is the Supreme Court stay just a 'temporary relief.' If the press is to be made immune to the 'whims and fancies' of the legislatures, then the privileges of the legislatures in
The Supreme Court has held in 1964 that the power to determine the breach of privilege solely rests with the legislatures and the courts cannot sit in judgment over the commitment. The Allahabad High Court, based on the advisory opinion of the Supreme Court in 1964, in the Keshav Singh case underlines the point in bold holding that "the Legislative Assembly is the master of its own procedure and is the sole judge of the question whether its contempt has been committed or not."
The law which governs the powers and privileges of Parliament and the State Legislatures is called the law of Parliament in order to distinguish it from the law made by Parliament. There is no law yet made by the Parliament of India or any State Legislature relating to its own powers and privileges even though the Constitution has conferred the power to make such laws. In the absence of such legislation what constitutes privilege of the legislature and what punishment can be awarded for it is not spelt out. It is precisely this fuzziness which has led to the abuse of legislative authority in the case of the Hindu versus the Tamil Nadu Assembly.
In the absence of codification what is resorted to is Indian and English precedents. The privileges of the Indian Parliament, so long as is no law in this behalf is made by Parliament itself, remains the same as that enjoyed by the British House of Commons at the commencement of the Indian Constitution.
Issues of privilege relate to the publication of the proceedings of the legislature. The Press can publish such proceedings only as a privilege, which the Legislature can withhold either by sitting in camera or by refusing to admit representatives of the Press generally or inDIVidually, or by expunging or withholding from publication particular portions of the proceedings.
The issue also arises of publishing defamatory matter if it is part of parliamentary or legislative proceedings. The press in
During the Emergency Prime Minister Indira Gandhi’s government felt high dignitaries should be protected from defamatory publications in the Press arising from reports about proceedings of Parliament. So she repealed the 1956 Act with an ordinance and which was followed by the Parliamentary Proceedings (Protection of Publication) Repeal Act, 1976. In 1977 when the Janata Party came to power it revived the 1956 act. It also amended the Constitution by inserting Article 361A to cover the publication of legislative proceedings not just of either house of Parliament but also of state legislatures.
What is relevant in the case of the Hindu is whether the reports which the Speaker mentioned are defamatory, going by the qualifications set out for reporting proceedings. If they are substantially true and not actuated by malice they are entitled to constitutional protection. As to whether they constitute contempt of Parliament or legislature by the press, caused by breach of privilege, this cannot be firmly ascertained in the absence of codification which would spell out precisely what powers, privileges and immunities each house has. With nothing stated, breach of privilege and the punishment to be awarded for such breach remains a subjective judgement. The punishments available as specified by Articles 105 (3) and 194 (3) of the Constitution are Admonition, Reprimand, Imprisonment, Exclusion.
Reprimand was resorted to in the case of the Editor of Blitz Weekly of
In 1953 the Times of India was held guilty of contempt for commenting that certain questions put in the House were mean and petty and that they should have been disallowed. Press facilities were withdrawn from the newspaper.
In 1976 the Privileges Committee of the West Bengal Legislature found both the editor and the news editor of "Satyayug", a Bengali daily, guilty of committing a gross brief of privilege and contempt of the House in an article they had published. The editor tendered an apology in writing and was asked to publish the apology on the front page of the paper for three consecutive days.
So, what is the way out? Constitutional experts suggest two ways out. One, the Parliament must on an expeditious basis legislate to codify and define the privileges of legislatures so that arbitrary and extraneous considerations do not allow the legislatures in
The recent decisions of the Tamil Nadu speaker on The Hindu and all the preceding cases that have been mentioned in the last chapter clearly point the needle towards overwhelming misuse of the Parliamentary Privileges at the disposal of the Indian Legislative bodies. The context and objective of the privileges are completely different from the day of its inception. Though these powers are necessary to maintain the equilibrium between the different estates of power, it is also necessary to see to it that the basic objectives of their inception are met.
It is observed that the misuse of these privileges is possible due to the absence of codification of these powers by the parliament contrarily to what has been envisaged in the Constitution of the country. It is alleged that this has not been that this has not been done by the government as codification will make the executive more responsible to the parliamentary bodies. Another argument presented is that the Parliamentary privileges were conceived to avoid misuse of the forces available at its disposal, by the executive against the legislative. What ever the reason, the exercise of codification of the Parliamentary Privileges should be taken up with utmost immediacy.
- MN Kaul & SL SHAKDHER (2001) Practice & Procedure of Parliament
- parliamentofindia.nic.in
- indiaimage.nic.in
- Lok Sabha Secretariat (2004) Question of Privilege
- http://www.beaconforfreedom.org
- http://www.mediaware-infotech.com
- http://www.expressindia.com
- http://pib.myiris.com
- http://web.mid-day.com/
- http://www.iimcal.ac.in/
- Naomi Klein (2002) Fences & Windows
- Edward S Hermen & Robert W Mc.Chensy (1998) The Global Media
- Noam Chomsky (1988) Manufacturing Consent
- Noam Chomsky (1988) Powers & Prospects
- Noam Chomsky (2003) American Power & The New Mandarins
[1] Extracts from http://www.legalserviceindia.com/articles/press_freedom.htm,
[2] Sources: http://sify.com/news/fullstory.php?id=13304476, http://sify.com/news/othernews/fullstory.php?id=13303140 &
http://www.thehoot.org/story.asp?storyid=Web210214166206Hoot22551%20PM968&pn=1
[i] Vide Author's Commentary on the Constitution, 6th Ed,Vol C, pg 95-97; Indian Express v Union of India(1985) 1 SCC 641
[ii] In re , Harijai Singh ,(1996) 6 SCC 632; AIR 1995 SC 264
[iii] AIR 1950 SC 124
[iv] AIR 1950 SC 129
[v] ibid
[vi] ibid
[vii] R.Rajagopal v State of
[viii] Sakal Papers v Union of
[ix] Bennett Coleman and Co v Union of
[x] Indian Express Newspapers v Union of India; (1985) 1 SCC 641
[xi] http://www.thehindu.com/2003/11/14/stories/2003111401331000.html
[xii] as has been described by Mr.Johann .P.Fritz, Director of International Press Institute
[xiii] Search Light case; Sharma v Sri krishna;A.1959 SC 395
[xiv] AIR 1965 SC 745
[xv] Search Light case
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