Jaya's media misadventure: Defending and extending freedom

This has drawn support from all sections of journalists, and even from BJP leaders who have been politically cultivating Ms Jayalalithaa. Even her close friend Mr George Fernandes terms her vendetta worse than the Emergency.

The Supreme Court has stayed the Assembly's sentence. In response, Ms Jayalalithaa has filed another defamation suit against The Hindu for an April 13 article. She will either escalate the confrontation and invite more trouble, or eat crow.

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Her assault on The Hindu is the culmination of a series of vindictive actions, including 17 defamation or libel suits. She has subjected her media critics to censorship, political coercion and physical harassment, as well as 130 defamation cases.

Ms Jayalalithaa was convinced she would get away with her attack upon India's most reputed daily. She reckoned that recent divisions within the extended family that owns the paper would prevent a concerted response.

Second, she feels the BJP needs her as a spoiler. The BJP is distancing itself from her rival, the DMK. Ms Jayalalithaa is the only politician outside the sangh parivar to support the Babri demolition and the Gujarat pogrom.

Differences within The Hindu became manifest four months ago when Mr N. Ram was appointed editor-in-chief, eclipsing editor N Ravi. But Ms Jayalalithaa wrongly assumed that intra-family differences would irreparably divide the group, and a journalist of integrity like Ram wouldn't defend his colleagues. If anything, her vendetta could reunite the family.

Politically too, Ms Jayalalithaa underestimated public opinion. This impelled even the BJP to support The Hindu. Mr Arun Jaitley, who vehemently defended the Prevention of Terrorism Act and other draconian laws, suddenly turned a crusader for freedom.

Nothing in the Hindu articles condemned by the Tamil Nadu Assembly's privileges committee is remotely scandalous. Their descriptive phrases such as "stinging", "diatribe", "incensed" and "high-pitched tone" give a feel of Ms Jayalalithaa's speeches. They don't constitute breach of privilege.

Ms Jayalalithaa compounded her original sin by misusing the Tamil Nadu police who turned up at The Hindu's Chennai offices without warrants, and intercepted Mr Ram's car in Bangalore the next day.

Shocking as this episode is, it demands a hard look at the privileges claimed by certain institutions. Three issues arise: legislative privilege; the power of judicial contempt; and certain constitutional freedoms.

Discussing these issues threadbare offers us a historic chance to strengthen the rights-based foundations of democracy.

Legislative privilege goes back to the medieval period when the still-weak English Parliament was struggling itself against an all-powerful monarchy. "Privilege" was the MPs' sole way of protecting themselves against the Crown.

This bears no parallel with today's India. Privilege makes sense now as strengthening the independence of legislatures. It cannot mean protecting MPs from public scrutiny or fair comment.

The privilege power has been repeatedly abused. Some of the worst instances come from Tamil Nadu. In 1987, its Assembly ordered the jailing of Anand Vikatan's S. Balasubramanian for demanding -- perfectly reasonably -- that legislators' privilege be codified.

In 1991, The Illustrated Weekly's K.P. Sunil wrote an article headlined "Tamil Nadu Assembly Fast Gaining Notoriety". The Speaker issued a warrant for his arrest. The Supreme Court stayed it. But another five years passed before the proceedings were dropped.

Many Speakers have issued breach-of-privilege notices to newspapers over the past quarter-century. Managements often apologise to them to avoid confrontation. This encourages the abuse of privilege.

No code was ever drafted to ensure that the privilege power would be "exercised with restraint and within the scope of 'life, liberty and due process of law", as recommended by a House of Commons report in 1967 and reiterated in 1999. This must change.

Equally important is abuse of the judicial power of contempt. Two years ago, the Supreme Court sentenced writer Arundhati Roy, without giving her an opportunity to be heard. It thundered: "Judicial process and institution cannot be permitted to be scandalised … in such a blatant manner in which it has been done …"

In India, even truth is no defence against contempt. The judiciary's "dignity" can be defined arbitrarily, and a writer punished even for a fair comment not intended to malign the judiciary. Judges are human and make mistakes, sometimes grave ones. A fifth of India's higher judiciary is corrupt too -- according to former Chief Justice S.P. Bharucha.

The contempt power is typically used to stifle criticism and evade accountability --not defend judicial dignity. This Holy Cow must be sacrificed at the altar of truth, freedom and democracy.

The right to free expression is fundamental. But even more basic is the right to life, without which other rights become meaningless. This all-important right stands menaced by a number of laws and practices like police excesses, arbitrary arrests, custodial deaths, etc.

At least 23 draconian laws exist on India's statute-books, which seriously infringe the citizen's right to life and freedom. Many hold her/him guilty before proof or trial. They mandate detention without trial.

Nine pertain to border states like Punjab, the Northeast and Kashmir. Five pertain to states like Maharashtra, Karnataka and Andhra. Nine are all-India laws like Unlawful Activities (Prevention) Act, 1967; Maintenance of Internal Security Act, 1971; National Security Act, 1980; Essential Services Maintenance Act, 1981; and POTA.

Such laws encourage the police to evade collecting evidence. They sit ill with democratic rights. Democracy doesn't only mean voting once every five years. It involves the rule of law, parliamentary norms and procedures, and fundamental rights, along with institutions like a free press.

That's where our democratic deficit lies. We will never be able to fill it unless we acknowledge our failures and honestly undertake reform.

Praful Bidwai is an eminent Indian columnist.