Privilege motion on newspaper opens frontiers of freedom

Praful Bidwai Inter Press Service New Delhi

India has rarely witnessed the rallying of its public in defense of the freedom of expression as it is seeing today in the case of The Hindu newspaper, which last week faced a harsh punishment of 15 days' jail for its journalists for the "breach of privilege" of the Tamil Nadu Legislative Assembly.

Scores of journalists' unions and media organizations, publishers' associations, professional bodies, political parties, civil society groups and ordinary citizens all over the country protested the sentencing of four senior journalists of the 125 year-old, highly respected, multi-edition newspaper headquartered in Chennai.

The punishment, ostensibly for carrying in April reports and comments derogatory to the prestige of the state assembly, has been widely seen as grossly unfair and aimed at muzzling free expression.

Tamil Nadu Chief Minister Jayaram Jayalalithaa, who engineered the breach-of-privilege motion based on British colonial precedents, suffered a big legal setback on Monday when India's Supreme Court stopped the execution of the imprisonment order pending further hearings.

The breach-of-privilege concept goes back to the Middle Ages, when the still-weak British Parliament was defending itself against an all-powerful monarchy. In the 14 and 16 centuries, politicians would be jailed and prosecuted for treason for daring to sponsor bills demanding the curtailing of the king's household expenses or hold over land. Parliament evolved its own rules of immunity from such high-handed harassment by citing "privilege".

In the contemporary sense, legislative privilege makes sense as a means of protecting ministers of parliament from civil arrest, guaranteeing freedom of speech and debate in Parliament, and preserving its status as the exclusive representative of the people.

In the Hindu case, there was no evidence whatever of any attempt to insult or malign the legislature or lower its dignity. The paper's reports were sober, serious and unobjectionable.

Jayalalithaa first tried to give the whole issue a regional or state-versus-central government character to mobilize Tamil- chauvinist sentiment. In particular, she objected to the federal home ministry's willingness to grant the request of The Hindu editor-in-chief N Ram for deployment of the Central Industrial Security Force for its protection because the state police cannot be trusted to be impartial.

Jayalalithaa's platform is likely to be a damp squib because Ram has withdrawn his request. In any case, the Tamil Nadu police's record is poor. On Friday, it turned up at The Hindu offices to arrest four journalists and the paper's publisher in keeping with the assembly's order, but without arrest warrants. The following day, they illegally tried to intercept Ram's car in another state, Karnataka.

The likely effect of the attempt to gag and punish media criticism by invoking privilege will be to open up for debate a range of issues in India: The notion of privilege, the nature of the fundamental right to the freedom of expression in democracy; attempts to restrict it through the judicial power of contempt of court, the need to extend freedom to substantive areas other than expression -- and hence a review of repressive laws that sit ill with the right to life and limb.

Such a debate is welcome, indeed long overdue in India. India is of course a robust electoral democracy, which has thrived on the participation of millions of people who were for centuries excluded from public life on account of caste and class.

But free expression, also a major component of democracy, is hemmed in and restricted in India by the censorship of the market, by growing forces of intolerance, especially of the Hindu-nationalist variety, and by the judiciary.

Thus, dozens of books and plays are banned, censored or mutilated because religious bigots object to them on the ground that they violate their "sensibilities". Salman Rushdie's Satanic Verses is only one in a long line of examples. Most books banned in the recent past question Hindu-fundamentalist premises or the depiction of India's past as unproblematically glorious.

Distinguished activists, who happen to have been born Muslims, have been attacked for depicting Hindu goddesses. Most recently, Hindu chauvinists picketed a highly popular, indeed legendary, 30-year-old play by the illustrious director Habib Tanvir, which lampoons casteism and superstition.

Combating these forces of censorship demands a social and political-level struggle. But judicial restrictions on free expression are another matter altogether.

These have as damaging an impact on free expression as legislative privilege used arbitrarily -- called "the chilling effect". But they cannot be challenged except in the rarest of cases because the higher judiciary in India is a self-appointing institution answerable to no other agency.

Many Indian courts, including the Supreme Court -- known until recently for its liberal interpretation of the Constitution -- have recently used the power of contempt to reprimand and censor writers and journalists or curb free, unfettered expression of views and opinions.

For instance, novelist Arundhati Roy was held guilty of contempt because she argued, in an impassioned defense of the Narmada movement of dam-affected people against displacement, that judges may have no comprehension of the reality of the human and environmental damage inflicted by large dams.

In India, the power of contempt has been used not so much to defend the judiciary as an institution from unfair criticism, as to inhibit scrutiny or criticism of specific judgments and to shield individual judges who may be incompetent, or corrupt or both.

Recently, a chief justice of India himself said that a fifth of all judges are probably corrupt.

Truth is no defense against contempt: A writer cannot plead that his or her criticism of a judicial verdict was based on facts and hence not contemptible.

There is clearly a need to reform this antiquated law. Equally urgent is the imperative to subject India's many harsh and repressive laws to rights-based scrutiny.

The Hindu case has greatly raised public awareness of the right to free expression. But the right to life is at least as fundamental, if not more basic. It cannot be compromised for frivolous reasons or on mere suspicion of guilt.

Yet India has at least 20 laws on its statute books that substantially infringe that right. They presume a suspect to be guilty before trial and allow for prolonged detention. Such laws exist not only in border states such as Punjab, Kashmir and the north-east. Some have all-India application. Such laws encourage the police to evade gathering evidence and prosecuting criminals. They sit ill with democratic rights.

Among the most controversial of these laws as the Prevention of Terrorism Act, enacted in the wake of the Sep. 11, 2001 attacks. This imposes harsh penalties on suspected terrorists and accomplices and in some cases, reverses the burden of proof.

One can only hope the current spirited debate on The Hindu leads to a revision of these obnoxious laws.