PRESS FREEDOM in INDIA

 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 defence department involving ex -defence

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 Prime Minister Vajpayee's physical fitness to lead the country. Journalists working in Gujarat and Kashmir have also been susceptible to frequent attacks for reporting on the political scene there.



But the latest controversy which has brought the perennial problem (16) 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"(17), have been condemned and scrapped in most of the nations. The powers of commitment to prison which were described in England as the keystone of Parliamentary Privilege are not longer in use. The Joint Parliamentary Committee recommended in1999 that Parliament's power to imprison persons, whether members or not who are in contempt of Parliament should be abolished . 



But as far as the situation in India is concerned there exists constitutional contradictions as to whether the Parliamentary Privileges are limited by Fundamental Rights . It has been held that the transitional provisions in the first part of Article 105(3) and 194(3) are provisions independent of Part III of Constitution and are therefore not controlled by

Part III . (18)But as we see , in the 'Reference Case' ,(19) 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.(20)