The Press and the Legislature
Chapter Sixty-Two
Syllabus topic 5, "Freedom of press and challenges of new scientific development".
Pages 279 to 282 of 304
In one line
A House of the legislature can punish for contempt, a newspaper can report what the House does, and article 361A was inserted because the two collided.
In the wording a student can write in an exam: article 105 confers on Parliament, its members and committees freedom of speech in Parliament, immunity from proceedings in any court in respect of anything said or any vote given, immunity in respect of publication by or under the authority of a House of any report, paper, votes or proceedings, and such other powers, privileges and immunities as Parliament may by law define. Article 194 makes identical provision for the State legislatures. Article 361A, inserted by the Constitution (Forty-fourth Amendment) Act, 1978, provides that 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 of a State legislature, unless the publication is proved to have been made with malice, and that the protection does not apply to a report of proceedings of a sitting held in secret.
The two things a House holds
Keep them apart, because they behave differently.
Freedom of speech in the House, under articles 105(1) and (2) and 194(1) and (2). A member is not liable in any court for anything said or any vote given in the House or a committee. This is an immunity of the member, and it is absolute within its field.
The powers, privileges and immunities of the House, under articles 105(3) and 194(3). These include the power to regulate its own proceedings, to exclude strangers, to control publication of its debates, and to punish for contempt or breach of privilege, including by admonition, reprimand or committal. The clause provides that these shall be such as Parliament or the State legislature may by law define, and until so defined, those which the House had at the commencement of the Constitution.
The consequence of the second half of that clause. No such law has been enacted. So the privileges continue to be those the House had in 1950, which are the privileges of the House of Commons as they then stood, incorporated by reference. That is an unusual state of affairs: a power to punish, held by a body that is not a court, whose content is fixed by reference to the practice of a foreign legislature at a date now three quarters of a century past.
Where the press comes in
Three collisions, and each has a different answer.
Reporting what was said. A member's speech may be defamatory of a person outside the House. The member is immune under article 105(2). Is the newspaper that reports the speech equally immune?
The Press and the Legislature
The old position was that it was not. The immunity in article 105(2) covers publication by or under the authority of a House, which is the official record, not a newspaper's report. A newspaper publishing a defamatory speech was therefore exposed, and a person defamed had a remedy against the paper and none against the speaker.
Article 361A answers this. Inserted by the Forty-fourth Amendment in 1978, it protects a person from any civil or criminal proceedings in respect of the publication in a newspaper of a substantially true report of proceedings of either House, subject to two conditions: the publication must not have been made with malice, and the protection does not extend to a report of a sitting held in secret. The article extends the protection to broadcasting by wireless telegraphy as well.
Publishing what the House wanted withheld, or reporting expunged remarks or the proceedings of a committee before it reports. Here article 361A does not help, because the report is not of proceedings the House has published, and the House may treat it as a breach of privilege.
Criticising the House or its members. The most contested. A House may treat a publication reflecting on it or its members as a contempt, and the width of that power is exactly what the absence of a defining law leaves uncertain.
The constitutional question
This belongs in an answer because it is the reason the topic is in the syllabus.
Do the privileges in articles 105(3) and 194(3) prevail over the fundamental rights?
The argument that they do. Article 105(3) is itself a provision of the Constitution, of equal status with article 19, and the privileges it preserves are conferred by the Constitution rather than by ordinary law, so they cannot be tested against Part III as a statute would be.
The argument that they do not. Part III is a limitation on all State power; a House is part of the State; and a power to punish a citizen for what he publishes is precisely what article 19(1)(a) exists to control. Article 194(3) preserving the privileges of a foreign legislature as they stood in 1950 cannot have been intended to create an enclave immune from the rights the same Constitution guarantees.
The position that has emerged is a compromise, and it should be stated as such. The privileges are real and a House may enforce them; but the exercise is not wholly beyond scrutiny, particularly where a House acts against a person who is not a member and where the process affects liberty. Where a House commits a person, the courts have entertained proceedings about the jurisdiction to commit though not about the merits of the House's assessment. The line is jurisdiction, not correctness, and the parallel with judicial orders in [Is the Judiciary "State"?] is exact.
The Press and the Legislature
The leading decisions here are in the case bank's queue and are not cited. Do not attribute holdings to unnamed cases.
Why no law has been made
Worth a paragraph, because it explains the state of the topic.
Articles 105(3) and 194(3) contemplate a defining law and none has been enacted, at the Union or in any State. The reasons usually given are that codification would make the privileges justiciable in a way the present position arguably avoids, and that a House is reluctant to fix limits on a power whose value lies partly in its indefiniteness.
The consequence is that a citizen cannot know in advance what will be treated as a contempt of a House, which is the standard objection to any undefined power to punish, and which would be fatal to an ordinary criminal provision under article 20(1) and article 21.
A worked example
A member makes a speech in a State Legislative Assembly accusing a named official of corruption. A newspaper reports the speech accurately the next day, under the headline "Official accused of corruption in Assembly", and adds an editorial calling the Assembly's procedure for such accusations unfair. The official sues the newspaper for defamation, and the Assembly issues a notice of breach of privilege to the editor over the editorial.
The defamation suit over the report. Article 361A protects a person from civil or criminal proceedings in respect of the publication in a newspaper of a substantially true report of the proceedings of a House. The report is accurate, so the protection applies unless the official proves malice, and unless the sitting was secret. Neither appears. The suit fails.
Would the member have been liable? No. Article 194(2) gives absolute immunity for anything said in the House, so the person defamed has no remedy against the speaker either. That is the price the Constitution pays for free debate, and it should be noticed rather than passed over.
The privilege notice over the editorial. Article 361A does not assist, because the editorial is not a report of proceedings; it is comment on the House. Whether criticism of the Assembly's procedure is a contempt depends on privileges that have never been defined, which is the difficulty this chapter describes.
What the editor can argue. That article 19(1)(a) protects criticism of a public institution; that a restriction must fall within article 19(2), and contempt of a legislature is not among the eight grounds, which name only contempt of court; and that the House's jurisdiction to punish a non-member for comment made outside the House is at the least open to examination.
The Press and the Legislature
What the House can argue. That article 194(3) is itself a constitutional provision preserving the privileges as they stood in 1950, and that those privileges included the power to punish for contempt committed outside the House.
The honest answer. The report is protected and the editorial is in contested territory, and the contest is unresolved because the defining law article 194(3) contemplates has never been made.
Quick revision
- Articles 105 and 194 confer two distinct things: freedom of speech in the House, absolute for the member, and the powers, privileges and immunities of the House, including the power to punish for contempt.
- Clauses (3) leave the privileges to be defined by law; no such law has been made, so they remain those the House had in 1950.
- Article 361A, Forty-fourth Amendment 1978: no civil or criminal liability for publishing in a newspaper a SUBSTANTIALLY TRUE report of proceedings, unless made with MALICE, and not for a SECRET sitting.
- Article 361A protects reports, not comment, and not the publication of what the House withheld.
- The constitutional question is whether the privileges prevail over Part III; the compromise reached is that a House may enforce them but its jurisdiction to do so is examinable, though not the merits.
- Note that article 19(2) names contempt of COURT and not of a legislature.
Test yourself
1. Distinguish the two things articles 105 and 194 each confer, and say which is absolute.
2. Why do the privileges remain those of 1950, and what is the standard objection to that?
3. What does article 361A protect, and what are its two conditions and one exclusion?
4. Give the argument each way on whether the privileges prevail over Part III, and state the compromise reached.
5. Why does it matter that article 19(2) names contempt of court but not of a legislature?
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.