Sunday, January 23, 2011

first and second press commission

Press Commission Report - I
Deviation from main task
By A. G. Noorani

THE period since the first Press Commission gave its report in 1954, has seen radical changes not only in the growth and significance of the press but also in legal thought affecting the press which, in India and abroad, has become markedly libertarian. Ironically, with the intensification of political conflict in India, the press came under attack from authority whose ideological premises were anything but libertarian.

The Emergency and press censorship left the press in a battered shape. The Second Press Commission was set up, as Mr. L. K. Advani, the Minister for Information & Broadcasting said in the Rajya Sabha on May 18, 1978, for re-examining its (the press’) place, status and functioning in a democratic set-up, more so in view of the recent experience when the, press was subjected to a series of legal and administrative assaults. To determine the further steps that need to be taken to restore it to full vigour and health was the main charge of the Commission.

The Second Press Commission’s report reveals its wilful refusal to address itself to this task, and in this the Government of India fully shares the blame. It completely reconstituted the Commission headed by Mr.P.K. Goswami, a retired judge of the Supreme Court, and selected as his successor Mr. K.K.Mathew, a former Supreme Court judge who had in his dissenting judgment in the Bennett Coleman Case (1973) and also in his report on Mr.L.N. Mishra’s death (1977) revealed a concept of press freedom which allowed authority ,larger powers of regulation.

A joint minute of dissent by four members of the Commission on diffusion of press ownership, pricepage schedule and a statutory news-to-advertisement ratio rightly remarks that the relevant section of the Report leans heavily on the theories propounded in the dissenting judgment of Mr. Justice K. K. Mathew.

RECOMMENDATIONS

The theories are so far-reaching that their impact is evident on the entire report and the dissenters, too, went along with many illiberal recommendations. In the Bennett Coleman Case, Mr. Justice Mathew expatiated at length on the vagueness of the concept of freedom of speech and argued that what is required is an interpretation of Article 19 (I) (a) (right to freedom of speech) which focuses on the idea that restraining the hand of the
government is quite useless in assuring free speech if a restraint on access is effectively secured by private groups.

It is unnecessary to spell out the implications of such an approach in practical terms. The Report laments: We are in the grip of a romantic theory of freedom of speech, namely, the belief that the market place is freely accessible... But what of those ideas which are unacceptable to the media and which do not find access therein? That the remedy prescribed, state regulation, is worse than the disease diagnosed has escaped the majority.

However, the minority are in manifest error in saying one unanimous conclusion of the Commission is that the present constitutional provision may not be adequate to ensure a free press. The case for. a constitutional amendment in this regard has been made in Chapter IV of the Commission’s Report. When one turns to that Chapter one is confronted with a directly opposite recommendation: No useful purpose will.., be served by inserting a separate provision in the Constitution conferring freedom of the press as that concept is already embodied in Article 19(1 )(a) and by inserting such a provision no particular benefit can be conferred on a noncitizen like a company.

PROTECTION
The report recommends merely that all Indian companies engaged in the business of communication and whose shareholders are citizens should be deemed to be citizens for the purpose of the relevant clauses of Article 19 (which is confined to citizens alone), presumably by amending the Citizenship Act 1955.

The Report criticises the Supreme Court’s ruling in the Bennett Coleman Case where relief was given to the shareholders, editors and printers as citizens, an aspect on which Mr. Mathew’s dissent in the case was silent. But the graver flaw in the Report is its refusal to recommend constitutional protection for freedom to the press merely because that concept is already embodied in Article 19 (1) (a)

The US constitution advisedly protects both free speech and free press. Justice Stewart pointed out that the First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident but an acknowledgment of the critical role played by the press in American society. The US Supreme Court has time and again recognised the importance of protecting the freedom of the press as an institution. A constitutional amendment to place the freedom of the press beyond any question, was desired by the minority but its impression that the Report recommends such a measure is wrong. The case was lost by default.

None of the US rulings is cited in the report. Their cumulative effect is enormous. It has been recognised that the press is an agent of the public and that terms of access (to news) that are reasonably imposed on individual members of the public may, if they impede effective reporting without sufficient justification, be unreasonable as applied to journalists and news gathering is entitled to protection. Are such rulings of no interest to a body concerned with press freedom?

DOGMATIC

But, one regrets to say, the Commission’s discussion of legal questions is consistently perfunctory, slipshod and, at the same time, dogmatic and tendentious. Article 19(2) allows reasonable restrictions on the fundamental right to freedom of speech on very limited grounds. The interests of the general public is not one of them though it is a permissible ground for reasonable restrictions on the fundamental right to carry on a business. This is a fine expression of the framers’ liberal outlook. In striking down the price-page schedule in the Sakal Case, the Supreme Court held that it directly affected Article 19(1) (a) even if it was valid as a restriction on the newspaper industry.

The Report holds that this aspect of the matter wag incorrectly decided in that case because freedom of speech was not directly affected. But, in his dissent in the Bennett Coleman Case, Mr Justice Mathew had said the very opposite and approved of the Sakal Case. The legislation in that case directly restricted circulation of newspapers. The direct effect of the legislation, in other words, was to abridge the freedom of speech by curtailing circulation.

The dissenters part company with the Report on this point and, indeed, on government press relations generally. They criticise the omission of any reference to the Emergency and the trauma of censorship which the press in India experienced for 21 months. There is a section on precensorship in the Commission’s Report. But Dr. Paranjpe is the only member who holds that censorship is justified only in times of emergency as defined in the Constitution. The rest hold that the power cannot be so limited but it should be invoked only in cases of extreme necessity in the national interest, when the situation cannot be saved without resort to this power.

Who is to be the judge of the necessity but ‘the executive? The Report glibly characterises the Supreme Court’s ruling in Virendra’s Case as a clear authority for the proposition that pre-censorship in times of peace is permissible in certain circumstances. The Court upheld the ban on publication of any matter on a specified topic, under Section 2(1) (a) of the Punjab Special Powers (Press) Act, 1956, in the interests of public order for a maximum of two months, with no other safeguard but a right of representation to the Government itself.

The case was decided in 1957. Ten years later, Mr M. C. Setalvad remarked, it was somewhat disheartening to see the court upholding the conferment of such a power though its exercise was left solely to the subjective determination of the executive, Happily, later decisions indicate a more liberal approach by the court. That approach has continued to this day and it is unlikely that such legislation will be sustained by the Supreme Court.

CENSORSHIP
Even the Assam High Court, though bound by the ruling, made significant dents into it recently in a censorship case; to wit, limitation of matter, prior hearing, furnishing of grounds. More to the point, the Court struck down a provision requiring submission of material for prior scrutiny because of the absence of an independent forum where the press could seek redress against an illegal or unjust order. Representation to the executive was held to be no safeguard. One of the judges held that the Governor’s declaration of necessity for action was reviewable by the courts.

Thus, the High Court followed Virendra’s ruling, as it was bound to, but did so by intelligently applying later and more liberal rulings. The Supreme Court itself would be free to overrule Virendra’s case. The Commission dismisses the entire subject in five paras and does not deign even to give the references to the vital Assam ruling or consider it beyond a cursory summary. Such sloppiness would be considered unworthy in a law student discussing censorship. In a body charged with devising safeguards for press freedom, it is disgraceful.

PRESS COMMISSION REPORT -II
Some plus points, but...
By A. G. Noorani

THE Second Press Commission tends to stumble badly even where it adopts a correct course. It follows the First Press Commission in recommending a codification of parliamentary privileges which are a standing threat to press freedom. Having done that, it follows the easy course of recommending adoption en bloc of the recommendations made by a Select Committee of the House of Commons in 1967. But the Report completely ignores the fact that these were, in turn, vetted in 1977 by a Committee of Privileges which went further and recommended that the power to impose fines, which the Commons do not enjoy, should be conferred on them and the power to imprison should be abolished.

For all the cosmetic changes, Indian legislatures’ power is the same as that of the Commons as of January 26, 1950. They can imprison but they cannot impose fines. In a country where the power to imprison has been freely invoked in the UP case, even against High Court judges the relevance of the 1977 recommendation is obvious. The Commission does not consider the effect of the Supreme Court’s rulings in the UP case and Mrs. Maneka Gandhi’s case. Their net effect is to make the fundamental rights to personal liberty (Art. 21) and, therefore, to freedom of speech (Art. 19(1) (a)) override the privileges. Indeed, the Report completely overlooks this aspect of the fundamental rights.

PROCEEDINGS

Article 361 A of the Constitution, inserted by the 44th Amendment, negates the power. No person shall be liable to any proceedings, civil or criminal, in any court in respect of the publication in a 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 the Legislature of a State, unless the publication is proved to have been made with malice.

The Commission would restrict it to liability in courts ignoring the provison provided that nothing in this clause shall apply to the publication of any report of the proceedings of a secret sitting of either House of Parliament or the Legislative Assembly, or, as the case may be, either House of the Legislature of a State. It is the legislature, not the’ court, which punishes publication of proceedings of secret sessions. The provison advisedly does not cover publication of expunged portions.

The power of expunction is almost unique to the Indian presiding officer. The Speaker of the House of Commons enjoys no such power. The House itself has ordered expunction of entries from its Journal, but never from Hansard. There are only five instances of such expunction from 1769 to 1909 but the deleted words appear in Hansard all the same.

EXPUNCTION

In the Central Legislative Assembly the practice was for the Assembly to order expunction on a motion. It was after independence that the Rules of Procedure’ conferred the power on the Speaker. But the power has been used as a disciplinary weapon and has been grossly abused. The Report gratuitously restricts Article 361 A to judicial proceedings alone and volunteers an advice, The press should not publish expunged portions of the proceedings of a legislature.. .a publication of an expunged -portion of the proceedings of the House of Commons in UK is recognised as a breach of privilege and it should be so in India. Dr. Paranjape alone dissented and he is right.

The statement of the law in Britain is manifestly wrong because proceedings have never been expunged from Hansard. Moreover, as the Clerk of the House pointed out in an erudite memorandum in 1978, the rights of the press rest on reporting proceedings in Parliament, not in quoting the official report. He deprecated any suggestion to bowdlerise Hansard. Thus, even if a Speaker orders expunction of words from the official record, he has no right to direct the press not to report the expunged words, plus the Speaker’s order. Once again, the Commission has in two brief paras pronounced in gross error against the press in a vital matter and erred through sheer ignorance.

The same failing recurs in the discussion of disclosure of the journalist’s sources. The majority say no more than that there is no absolute immunity as if any one seriously claimed that, and that the need to protect sources has to receive wide recognition in our country...The ‘court will have to weigh in each case the public interest in doing justice in a case against the public interest involved in the free flow of information through protection of the confidential source of information.

In the absence of an amendment to the Evidence Act or the Contempt of Court Act, no judge will be competent to overrule a question which ‘seeks to ascertain the source and no journalist fret to refuse an answer. 5. 10 of the British Contempt of Court Act, 1981 confers such a discretion on the judge. The Report does not refer to it nor to the guidelines laid down by the US Supreme Court in 1972. The Report, in consequence, is of no assistance to any one who is concerned with the issue.

On the law of contempt of court the Commission suggests that the Contempt of Courts Act, 1971 be amended to make it clear that it is only a substantial interference that constitutes contempt under the Act. Judicial dicta, however, have achieved this result already. Far more helpful is the Commission’s recommendation that imputation of improper or corrupt judicial conduct with intent to impair confidence in the judiciary should be an offence triable on prosecution and that truth plus publication for the public benefit should be a valid defence.

FAIR COMMENT

Likewise, the Report suggests relaxation of the rigour of the law of defamation in favour of news press on the lines of the British Defamation Act, 1952. Unintentional defamation should not be punishable. The area of fair comment is also enlarged. Implicit in these recommendations is the clear rejection of the Government’s case that existing laws are inadequate to curb yellow journalism. If anything, the libel laws are archaically stringent. Only, the politician has far too many skeletons in the cupboard to venture to step into the witness box, and seeks legislative assistance to muzzle the press.

Another salutary feature of the Report is the recommendation that 5. 5 of the Official Secrets Act, 1923 be repealed and substituted by other provisions suited to meet the needs of national security and other vital interests of the state as well as right of the people to know the affairs of the state affecting them on the lines of the British Freedom of Information Bill.

Conflict between the right to know and the right to privacy is not easy to resolve. The report rejects Mr. V. N. Gadgil’s Right to Privacy Bill, 1981, as being too wide and supports the amendments sought to be made to the IPC in 1978, penalising use of listening or recording apparatus and unauthorised photography. Realising the dangers of legislation, the Report wisely leaves it to the Press Council to pronounce on complaints of improper invasion of privacy but unwisely asks the Council to use as guidelines the IPC’s exceptions to defamation. These are unduly restrictive; for instance, the private life of a public servant even if it affects his public life would be taboo.

JUDICIAL WARRANT

The Report recommends that mail interception should be done on the written orders of the Minister concerned and a record of interception maintained. Likewise for phone-tapping, except that it should be reviewed by a board whose decision would be binding. Why not prescribe a judicial warrant on the lines of a search warrant?

The analysis of the Press Council in the Report is disturbing in that it supports the Council’s demand for penal powers while rejecting its demand for express powers to censure governments, leaving it free to make mere observations. Yet, it is on such a Council that the Report would confer the power to enforce the right to reply. Four members dissent from this recommendation. What Chief Justice Burger of the US Supreme Court said while striking down a statute which mandated the right of reply is apposite not only to this particular topic but to the Second Press Commission's basic approach a responsible press is an undoubtedly desirable goal but press responsibility is not mandated by the Constitution, and, like many other virtues, it cannot be legislated.

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