The framers of the Constitution knew that free speech is the friend of change and revolution. But they also knew that it is always the deadliest enemy of tyranny. Freedom of speech means that you shall not do something to people either for the views they have, or the views they express, or the words they speak or write. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people. The press was to serve the governed, not the governors…” These words of United States Supreme Court Justice Hugo Black are more relevant today in India’s context than perhaps the day they were penned for preserving and upholding the freedom of the press guaranteed under the First Amendment to the United States Constitution.
The press may be the fourth pillar of democracy. But a press that is not free is no press. A press that cannot criticise those is power is no press. A press that is intimidated by political power or sucks up to it is no press. For even our constitutional scheme recognises the freedom of speech and expression, and therefore by implication the freedom of press. However, more often than not, political parties in India irrespective of their ideology seek to proscribe the free press, for their collective DNA is thin-skinned to censure. Even though to do so is constitutionally amoral.
The recent decision of the Karnataka Assembly in sentencing journalists Ravi Belagere and Anil Raju to imprisonment for one year for contempt of the House and a member, and therefore breach of privilege of the House, is unfortunate, to say the least.
It is not that legislative bodies in the past have not acted in this manner earlier too and their decisions have been held to be constitutional abridgements. Déjà vu. In 1964, the UP Assembly found one Keshav Singh of being guilty of contempt of the House and the members of the House, and sentenced him to a week in prison. Keshav Singh’s crime was similar to the one that Mr Belagere and Mr Raju are charged of — writing stuff that was considered by the UP Assembly to be defamatory to one of its members.
When Keshav Singh applied for and obtained bail from the Allahabad high court, the Assembly went one step further and sought to imprison the advocate who filed the bail petition and the two judges who granted bail. The entire Allahabad high court consisting of 28 judges unanimously, and in a mark of solidarity, stayed the operation of the sentence passed by the UP Assembly. The unprecedented situation was surmounted only when the President made a reference to the Supreme Court. In the presidential reference, the Supreme Court observed: “In conclusion, we ought to add that throughout our discussion we have consistently attempted to make it clear that the main point which we are discussing is the right of the House to claim that a general warrant issued by it in respect of its contempt alleged to have been committed by a citizen who is not a member of the House outside the four walls of the House, is conclusive, for it is on that claim that the House has chosen to take the view that the judges, the advocate and the party have committed contempt by reference to the conduct in the habeas corpus petition pending before the Lucknow bench of the Allahabad high court. Since we have held that in the present case no contempt was committed either by the judges, or the advocate, or the party respectively”.
The court therefore was clear that criticism, even if unwarranted, does not constitute either contempt of the House or its members, thus allowing them to invoke the yet uncodified privileges under Articles 105 (3) for Parliament and Article 194 (3) for the state legislatures. The privileges need to be spelt out in black and white. Over the years, the Supreme Court has repeatedly laid down the law circumscribing the powers and privileges of the legislatures.
The freedom of the press is the heart of social and political intercourse while privileges of the legislative institutions are one of the undefined silences in the text of the Constitution, and have been exculpated and transported into the Indian Constitution straight from the traditions of the House of Commons.
The object of parliamentary privileges is to ensure that the smooth functioning of legislative institutions is not hampered. The power to sentence to imprisonment for the contempt of the House or its members is undoubtedly a privilege of the House, a power that has been exercised by the House of Commons in the past, but when the Supreme Court of India has categorically held that actions outside the House, which have no direct effect of impinging on the functioning of the legislative chamber, cannot be a trigger for invoking constitutional privileges, is it then justified for the House to punish journalists whose opinions may be unpalatable or in the worst case even slanted or downright defamatory? The answer is no.
The Karnataka Assembly has overshot its constitutional mandate under Article 194 in sentencing Mr Belagere and Mr Raju for publishing some articles. An article being disrespectful to a member or the House cannot be cause for the invoking the power of privilege, specially when it is in exercise of the basic human right of free speech. This is more so when such an action for such alleged defamation would find remedy in both civil and criminal law, in the nature of a defamation suit or a criminal complaint, coupled with a prayer for injuncting such person from publishing such defamatory material in future. It is in this context the exercise of the constitutional power of parliamentary/ legislative privilege, and to find guilty a journalist of contempt of the House would tantamount to giving a special status to a member of such a legislative body and providing him or her a remedy apart from what is prescribed by law. The privilege to punish for the contempt of the House is a power that must be scarcely called into use in the most extreme of situations when the majesty or the functioning of the House is under stress or severe strain. Allegedly defamatory writing hardly falls into that category.
The judicious use of a constitutional privilege becomes all the more relevant when a wave of tyranny has been unleashed by the BJP government against independent sections of the media.
Orchestrated repression by the State — if you are not with us, then you are against us —has divided the Indian media into the “kept” and the “unkept” media.
On the one hand, broadcasting entities that are functioning in a manner that make even North Korean TV channels blush with shame are patronised by the government, and those who speak truth to power are being hounded and persecuted.
In such a situation, any action by any constitutional body that reinforces this spectre of fear, repression and intimidation is avoidable, even though that may not have been the intent at all in this particular case and the journalist duo just managed to get under the skin of some members of the House.
The Karnataka Assembly would therefore be well-advised to suo motu withdraw its resolution.
