The Lawmatics Freedom of Press Series
Some days ago, during budged session of parliament, we saw many instances where remarks of opposition members were expunged by Speaker and chairman of Rajyasbha. First, Congress leader Rahul Gandhi’s remarks on Adani and modi issue were expunged by Loksabha Speaker, then many parts of Rajyesabha Opposition leader Mallikarjun kharge’s speech were expunged and Congress party’s whip Jairam Ramesh’s resolution was also removed from record.
Despite the removal of remarks from the proceedings of Parliament, Media outlets extensively covered the speeches. These were also widely circulated on Social Media. But the question is, whether Parliament can exercise privilege motion against such publications when these speeches are removed from the records of Parliament?
Such cases also happened in past, and the case of ‘Pandit M.S.M. Sharma v. Shri Krishna Sinha (1958)’ is an important case in this regard. Where a media outlet published an expunged speech of Bihar legislative assembly’s member.
Facts of the Case
- On May 30, 1957, there was a debate in the Bihar Legislative Assembly when M. P. N. Singh, one of the oldest members of the Assembly, made a speech the gist of which was a criticism of the administration of Bihar as run by Dr. S. K. Sinha, the Chief Minister, and cited certain instances of favouritism. At this stage the Speaker held that a portion of the speech was objectionable and ordered it to be struck off and expunged. It was a general statement. No specific direction was given to the Press.
- The speech was made on May 30, 1957, and the official authorised report was published and made available on January 2, 1958. ‘The Search Light’, being a daily newspaper, came out on May 31 with what happened in the Assembly. A privilege motion was said to have been moved and referred to the Committee of Privileges; no voting was taken and no time limit was given for the presentation of the report which was required under the rules of the House.
If no time limit was prescribed, then under rule 215 the report was to be submitted within a month. It was after more than a year i.e. on August 18, 1958, that the petitioner received a notice to show cause why appropriate action should not be taken against him for the breach of privilege.
- The action of the Privileges Committee raised constitutional points affecting the petitioners fundamental right of freedom of expression.
Contentions of the Petitioner
The petitioner’s counsel contended that
- the action of the Privileges Committee raised constitutional points affecting the petitioners fundamental right of freedom of expression. The Legislature cannot have such a privilege as will deprive the citizens of their fundamental rights which are guaranteed by the Constitution, specially the right of freedom of expression under Art. 19(1) (a).
- In the actual motion the charge was that the speech was published in its entirety, “Jyon ka Tyon ” (as it is); but the motion adopted by the Privileges Committee, the charge against the Editor was that he published a perverted and unfaithful report of the proceeding, and the expunged portions of the speech was also published in derogation of the order of the Speaker.
- Article 194 (3) of Indian constitution, which dealt with powers, privileges and immunities of the Legislatures were subject to the provisions of the Constitution. Article 194(3) cannot be said to abridge the provisions of Art. 19(1) which guaranteed fundamental rights. The Legislature can follow the procedure of the British House of Commons, but this privilege of legislature cannot go contrary to the fundamental rights. If such a privilege is allowed, the Legislature would assume sovereignty as against the Constitution itself under the garb of privileges. Even in England, the ban on the publication of the proceedings in Parliament had ceased to exist in practice after the 16th century.
- The proceedings of legislatures are open to the public and the citizens have a right to know whatever happens in the House and also to know as to how any portion of the proceedings is ordered to be expunged. The people, had the right to know as to what was happening in the House to enable them to exercise their franchise properly. If people have a right to see and hear the proceedings, other people who are not able to be in the House have a right to know through published proceedings.
- The next point was that the Chief Minister could not be the Chairman of the Committee of Privileges with quasi-judicial powers to summon witness and demand production of evidence. In this case, the Chief Minister had a certain interest in the matter and this was against all principles of natural justice.
- Two things should be noticed. A non-citizen running a newspaper is not entitled to the fundamental right to freedom of speech and expression and, therefore, cannot claim, as his fundamental right, the benefit of the liberty of the Press.
Further, being only a right flowing from the freedom of speech and expression, the liberty of the Press in India stands on no higher footing than the freedom of speech and expression of a citizen and that no privilege attaches to the Press as such, that is to say, as distinct from the freedom of the citizen.
- Article 194 gives the privileges to state legislatures and the subject matter of each of its four clauses is different. Clause (1) confers on the member’s freedom of speech in the Legislature, subject, of course, to certain provisions therein referred to.
Clause (2) gives immunity, to the members or any person authorised by the House to publish any report etc. from legal proceedings.
Clause (3) confers certain powers Privileges and immunities on the House of the Legislature of a State and on the members and the committees thereof and,
finally, cl. (4) extends the provisions of cls. (1) to (3) to persons who are not members of the House, but who, by virtue of the Constitution, have the right to speak and otherwise to take part in the proceedings of the House or any committee thereof.
In the second place, the fact that cl. (1) has been expressly made subject to the provisions of the Constitution but cls. (2) to (4) have not been stated to be so subject indicates that the Constitution makers did not intend cls. (2) to (4) to be subject to the provisions of the Constitution. If the Constitution makers wanted that the provisions of all the clauses should be subject to the provisions of the Constitution, then the Article would have been drafted in a different way, namely, it would have started with the words:
“Subject to the provisions of this Constitution and the rules and standing orders regulating the procedure of the Legislature” and then the subject matter of the four clauses would have been set out as sub- cls. (i), (ii), (iii) and (iv) so as to indicate that the overriding provisions of the opening words qualified each of the sub clauses.
In the third place, in may well be argued that the words “regulating the procedure of the Legislature” occurring in cl. (1) of Art. 194 should be read as governing both “the provisions of the Constitution” and “the rules and standing orders”. So read freedom of speech in the Legislature becomes subject to the provisions of the Constitution regulating the procedure of the Legislature, that is to say, subject to the Articles relating to procedure in Part VI including Arts. 208 and 211, just as freedom of speech in Parliament under Art. 105(1), on a similar construction, will become subject to the Articles relating to procedure in Part V including Arts. 118 and 121.
The right conferred on a citizen under Art. 19(1)(a) can be restricted by law which falls within cl. (2) of that Article and he may be made liable in a court of law for breach of such law, but cl. (2) of Art. 194 categorically lays down that no member of the Legislature is to be made liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or in committees thereof and that no person will be liable in respect of the publication by or under the authority of the House of such a Legislature of any report, paper or proceedings. The provisions of cl. (2) of Art. 194, therefore, indicate that the freedom of speech referred to in cl. (1) is different from the freedom of speech and expression guaranteed under Art. 19(1)(a) and cannot be cut down in any way by any law contemplated by cl. (2) of Art. 19.
- Art. 194(3) read with the rules so framed has laid down the procedure for enforcing its powers, privileges and immunities. If, therefore, the Legislative Assembly has the powers, privileges and immunities of the house of Commons and if the petitioner is eventually deprived of his personal liberty as a result of the proceedings before the Committee of Privileges, such deprivation will be in accordance with procedure established by law and the petitioner cannot complain of the breach, actual or threatened, of his fundamental right under Art. 21.
- If the Legislature Assembly of Bihar has the powers and privileges it claims and is entitled to take proceedings for breach thereof, then it must be left to the House itself to determine whether there has, in fact, been any breach of its privilege. Thus, it will be for the House on the advice of its Committee of Privileges to consider the true effect of the Speaker’s directions that certain portions of the proceedings be expunged and whether the publication of the speech, if it has included the portion which had been so directed to be expunged in the eye of the law, tantamount to publishing something which had not been said and, whether such a publication cannot be claimed to be a publication of an accurate and faithful report of the speech.
- It will, again, be for the House to determine whether the Speaker’s ruling made distinctly and audibly that a portion of the proceedings be expunged amounts to a direction to the Press reporters not to publish the same, and whether the publication of the speech, if it has included the portion directed to be so expunged, is or is not a violation of the order of the Speaker -and a breach of the privilege of the House amounting to a contempt of the Speaker and the House.
Pundit M.S.M. Sharma v. Shri Krishna Sinha (1958)