Need for reformulating the law

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, raises in acute form the perennial problem of the protection of the freedom of speech and the Press from arbitrary exercise of the power of punishing for contempt possessed by the Legislature.

So far, the pronouncements of the Supreme Court in the Searchlight case (1959) and Keshav Singh's case (1964) appear to hold that freedom of speech guaranteed by the Constitution is subordinate to the right of the Legislatures to exercise their privilege to punish persons for writings that bring them into contempt.

This question now requires to be reconsidered by the Supreme Court in the context of its later day evolving jurisprudence — of expanding judicial control over all functionaries under the Constitution, howsoever high they may be — its activism in protecting the fundamental rights enshrined in the Constitution, and the practical abandonment of the exercise of such contempt powers by the House of Commons itself whose medieval powers and immunities are said to be the root and justification for the existence of such powers in our Constitution.

The justification for retaining parliamentary privileges in modern times is their ancillary character, that is, without them the Legislatures cannot discharge their functions, and any action that impedes their functions is a breach of privilege. The right of a member of the Legislative Assembly to freely speak in the Assembly is also a privilege, and any action that prevents such a right is a breach of privilege.

But the Constitution equally recognises that the fundamental right of freedom of speech of an individual (which includes freedom of the Press) to speak and write freely and reasonably criticise matters of public importance, including proceedings in the Legislature and the conduct of its members. In the exercise of this fundamental right to reasonably criticise the action of the Legislature, the Press does not "impeach or question the debate or speech in the Legislature", which is the ancient privilege given to the English House of Commons by the Bill of Rights in 1689. Nor does it bring the Legislature and its members into disrespect.

If the Press is punished for contempt of the Legislature when it exercises its fundamental right to report and criticise the actions of the Legislative Assembly and its members, as The Hindu did, no newspaper will be able to function for fear of contempt. Taken with the claim of the Legislatures as part of their privileges to have exclusive cognisance of the legitimacy of their actions for punishing for contempt, and immunity from any judicial review of the actions, this would be a prescription for unbridled autocracy, arbitrariness and negation of the rule of law.

There is good ground for believing that the Supreme Court mistakenly gave overriding powers to Legislatures in the exercise of their privileges over the fundamental right of freedom of speech in the Searchlight case in 1959, which was followed in Keshav Singh's case in 1964. But Keshav Singh's case itself exploded 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.

Since Keshav Singh's case, the Supreme Court has asserted judicial review in manifest ways over every authority under the Constitution. The highest legislative function of Parliament in making constitutional amendments is now subject to judicial review. Article 21 of the Constitution is now judicially construed in the widest amplitude to include many freedoms unrelated to freedoms of the person. Decisions of Speakers of Legislative Assemblies are subject to judicial review in matters of disqualification of members. The President's prerogative of pardon can be examined by courts. As Justice P.N. Bhagwati pithily put it in one case "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".

The powers of commitment to prison were once described in England as "the keystone of Parliamentary Privilege". It has now fallen into disuse. The last person to be committed by the House of Commons was Bradlaugh in 1880. The Joint Parliamentary Committee recommended in 1999 that Parliament's power to imprison persons, whether members or not, who are in contempt of Parliament should be abolished.

It has been suggested that the Legislature, by not defining the extent of its privileges, which it is obliged to do, is facilitating its unbridled power of punishing for contempt. This is true. But even if the Legislatures do not codify their privileges, if the power is subjected to judicial scrutiny, there will be fewer occasions for misuse of such powers.

(The writer is a Senior Advocate and a former Solicitor General for India.)