Monday, April 19, 2010

Official Secrets Act (OSA), 1923

An "Invalid" Act?

Passed in April 1923 by the Legislative Council, the Act was never notified in the Gazette of India. To become law, every Act must be notified in the Gazette of India. The National Archives of India, ministries of Home and Law say they are not in possession of any such notification. None exists in the 1923 Gazette of India either. Legal luminaries say that if an Act is not notified, it is an "invalid" law. The OSA was amended twice, in 1951 and 1967, and made more stringent. But only the amendments were notified in the 'Extraordinary Gazette of India'.

Forget its validity. Let’s talk about the Act:

    * OSA was designed to protect the British executive in India from accountability. British strategy in India was to deal with matters internally allowing only senior officials to explain government policy. However once the OSA was enacted in Britain in 1889, it was duplicated in India. The Act was enacted to prevent the disclosure of any information rather than deal with either spying or state security. In 1967 amendments were brought post Indo-Pakistan War but in place of liberating the law it actually increased penalties and facilitated prosecution.

    * OSA is a major impediment in the way of freedom of the press. This has been misused time and again by the state machinery to shut the mouth of the press. This law was enacted by the colonial regime to protect the executive from public scrutiny and transparency.

    * OSA defines a number of offences which are a threat to the National Security. Its aim is to prevent any threat to (i) National Security (ii) Leakage of Secret Information; (iii) Sabotage of the System; etc.

OSA roughly has two parts:

1. Spying: The punishment for spying on the country’s defence system is a prison term of up to 14 years.

2. Unauthorized communication: of any Secret Official Code / Passwords / Sketch / Plan

(Blueprint) / Model / Article / Note / Document / Information.

Supporters of Freedom of the Press consider this act as the most deadly of all laws affecting the Press in India. According to this Act, a person passing Official Secrets clandestinely to the enemies of the State is punishable for 3 to 14 years.

During Mrs. Gandhi’s infamous emergency (1975-1977), this Act caused a grave threat to the Freedom of the Press like the black law of censorship.

The basic features however remained the same:

Section 3:

§         Prohibits approaching, inspecting, passing over or entering in the vicinity of a prohibited place. Under the Act, it is also an offence to obtain, collect, record, publish or communicate to any other person these items or any "other document or information which is calculated to be or might be or is intended to be, directly, or indirectly, useful to an enemy or which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with Foreign States."

§         The basic premise of the Section is that even if the case against the accused is not proven, "his conduct or his known character as proved" could create a presumption that his action was prejudicial to the safety or interests of the state. As in British courts, "enemy" has been interpreted to include "potential enemy".

Penalty for spying: 14 years of imprisonment.

Section 5:

§         This section happens to be the catch-all provision of the OSA. It relates to the willful communication, uses, retention or failure to take reasonable care of all information which has been entrusted in confidence to him by any person holding office, or which he has obtained or which he has had access to owing to his position. The voluntary reception, possession or control of any such information is also an offence.

§         If there is knowledge or reasonable cause to believe that such information is communicated in contravention of  Section 5(2) of the Act shall be punishable for a term which may extend to 3 years, with or without fine.

What is 'Official Secret'?

It includes any kind of information; any official code, password, sketch, plan, model, article, note, document or information. The only qualification is that it should be "secret". The word "secret" or "official secrets" actually remain undefined in the Act.

The only clarity being that the Act applies only to official secrets and not to secrets of a private nature. Hence, the Act extends to ministry or department of the government, but not to an incorporated body like a university, government company or public corporation.

 Since, there is no definition of "secret" in the Act the Government has the discretion to classify anything and everything as a "secret" as per the Official Secrets Act. The typical practice of the government is to treat any information as secret, merely because it may embarrass the government or the party in power.

The OSA 1923 was enacted with the purpose of protecting the safety and integrity of the State, but unfortunately the wide discretionary powers conferred upon the administrative authorities with a view to facilitating the task of protection of National Security were being exercised indiscriminately. There is no doubt that a statute of the nature of OSA is an indispensable requirement of a sovereign State but at the same time without necessary precaution, it is a grave threat to Freedom of the Press and transparency in governance.

The OSA and Article 19(1) (A):

Article 19(1) (a) of the Constitution guarantees the Right to Freedom of Speech and Expression to every citizen. The Freedom of Speech and Expression does include the right to acquire and disseminate information. The OSA 1923, it is claimed, violates all these rights by virtue of the restrictions it puts on the Freedom of Information. The vague provisions of the OSA 1923 also facilitate attempts on the part of the Government to threaten Media Personnel.

While discussing the conflict between these two Acts, it would be remarkable to quote the Judicial verdict in the famous State of UP v Raj Narain:

…" In a government of responsibility like ours, where all the agents of the Public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor, which should make one wary, when secrecy is claimed for transactions, which can, at any rate have no repercussions on public security.”…

Commission and Committee Reports On The Constitutionality Of The OSA:

Several Commissions and Committees have reviewed the OSA; the Press Laws Inquiry Committee (1948), the Press Commission (1954), the Law Commission (1971) and also by a Study Group appointed by the Central Government in 1977.

The First Press Commission though endorsed the Pro- Secrecy stance of the Press Laws Inquiry Committee did also make one other important observation:

"We agree with the contention that merely because a circular is marked secret or confidential, it should not attract the provisions of the Act, if the publication thereof is in the interest of the Public and no question of National Emergency and interest of the State as such arises."

The Second Press Commission and the Press Council of India had recommended that Section 5 be scrapped. The commission suggested its replacement by provisions modeled on those of the British Freedom of Information Bill, 1978. The Council asked for the repeal of the OSA and to enact a new legislation, which may be called Freedom of Information Act.

In the era of RTI this British Raj draconian Act is against the very spirit of transparency in governance in a modern democratic state like that of ours. Verappa Moily led 2nd Administrative Reforms Commission recommended this act to be repealed or scrapped. The Moily Commission has suggested that safeguards for State Security should be incorporated into the National Security Act (NSA) instead of the OSA.

Let us hope that with the RTI Act 2005, we have left the colonial legacy of OSA far behind to march in the era of freedom.


Though the law of Sedition was added in 1870, to Indian Penal Code (IPC) as Section 124A the word “Sedition” does not occur in Section 124-A of the Indian Penal Code or in the Defense of India Rule. It is only found as a marginal note to Section 124-A, and is not an operative part of the section but merely provides the name by which the crime defined in the section will be known. It prohibits incitement or attempt to incite disaffection against the govt. by spoken, written words or signs.

In the following years, more clauses were added to the IPC:

•    In 1898, Clauses on action against promoting enmity between classes;
•    In 1907 action against outrageous religious feelings, and the same action against assertions related to national integration was added.
•    In 1908, Newspapers Act was passed empowering magistrates to cease a press wherein a newspaper containing matters which incited murder or any other act of violence or offences under the Explosives Substance Act.
•    In 1910 the Indian Press Act came into existence. This comprehensive law was aimed at offences like violence and seditions. Under this Act, the govt. had the right to demand security deposit from the press or forfeit the publication.
•    In 1913, this Act was made more repressive but later on it was repealed.
•    In 1923, came another piece of stringent law, the Official Secrets Act. This prohibited the publication of classified official information.

The Law of Sedition relates to the uttering of the seditious words, the publication of seditious libels, and conspiracies to do an act for the furtherance of a seditious intention. It is the right of every citizen to discuss public affairs fully and freely but such discussions must not be directed to the incitement of unlawful acts or calculated to excite disaffection.

In Tara Singh v. State of Punjab, section 124-A was struck down by the SC as unconstitutional being contrary to freedom of speech and Expression guaranteed under Art 19(1) (a). The constitutional 1st (Amendment) Act, 1951 added in Art 19 (2) two words, “in the interest of public order”.

In the case of Kedarnath v. State of Bihar the SC held that any law which is enacted in the interest of public order may be saved from the voice of constitutional invalidity. The court had further observed that the right guaranteed under Art 19(1) (a) is subject to such reasonable restriction as would come within the purview of clause (2) to Art 19 which comprises (a) security of the State, (b) friendly relations with foreign states, (c) public order, (d) decency or morality, etc.
It further held that the continued existence of the government established by law is an essential condition of the stability of the state. Hence, any act within the meaning of section 124-A, which has the effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence.

In a charge under section 124-A of the penal code, the prosecution must prove that the intention of the writer or the speaker is to bring into hatred or contempt or excite or attempt to excite disaffection towards the Government established by law.

In Kedar Nath’s case, CJ Bhuvneshwar P. Sinha, observed, “Comments, however strongly worded expressing, disapprobation of actions of Govt., without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal.”

In order to sustain a conviction under section 124-A, it must be proved (a) that the accused spoke the words in question, (b) that he thereby brought or attempted to bring into hatred or contempt or excites or attempts to excite disaffection, and (c) that such disaffection was towards the Govt. established by law in India.

Some cases in the immediate past:

There are several cases where the state, by bringing laws in different names has tried to impose its authority. To name: the case of Binayaka Sen in Chattisgarh, of Prashant  Rahi in Uttarakhand are just a few which have hit the headlines. These people have been charged with sedition and waging war against the state when they stood up for the rights of a disadvantaged community in Naxal hit areas.

    Macherla Mohan Rao, a man from Chirala in Andhra Pradesh, had spearheaded the movement for rights of handloom workers for decades. A special invitee to the Planning Commission, he had attended several meetings to address the problems of the handloom weavers. Mohan Rao was picked up and charged under section 8(1) of the Andhra Pradesh Public Safety Act for allegedly spreading the message of Maoism among the youth.

    Prashant Rahi, a journalist from Uttarkhand, was implicated under various sections including section 124A of the IPC and sections 10 and 20 of the Unlawful Activities (Prevention) Act  (UAPA).

    Govindan Kutty, 68-year-old editor of a monthly journal People's March in Kerala, was arrested on charges related to an article he wrote in 2002 justifying an attack, allegedly by Maoists on then Andhra Pradesh Chief Minister, Chandrababu Naidu. He has also been charged under the IPC S. 124A apart from other sections including the UAPA.

    Praful Jha, 60-yearold former bureau chief of Dainik Bhaskar , was arrested on January 22, 2008 for his alleged links to a cache of arms seized by the police in Raipur. Though not implicated under 124A he has been charged under various other sections with similar intention.

Govindan Kutty, Praful Jha, Pittala Srisailam, Lachit Bordoloi….all of them journalists and human rights activists were arrested on charges of supporting or sympathizing with the Naxals. The arrests indicate a disturbing pattern especially because in most of the cases there is no charge of violence or any actual crime committed.

The arrests are symbolic of government’s growing intolerance of people who hold political beliefs that go against the new economic polices pursued by the government.

        There might be an RTI Act, an article 19 (1) guaranteeing freedom of expression and many more laws and judgments but what will happen without the intention to abide in letter and spirit.

Broadcast Code in India

With the recent banning of FTV till 21st March by I&B Ministry, the regulation debate seems to have returned once again after it hit headlines in the post Mumbai attack scenario. It had showed “indecent” stuff during the day which can be shown only after 11 p.m. at night. It is another matter that the same I&B ministry has a Film Censor board that clears profanities and bikini scenes for films in the name of creative freedom.

Television in India has come to the forefront in the last 10 years. From two channels prior to 1991, there are now around 500 channels with multiple operators and niche channels. This explosion has posed challenges for ethics, accountability and transparency across the industry.
                                              Since 1997, there has been the Prasar Bharati Act, promising autonomy, and the Cable Regulation Act, almost equally liberal. The rules of programming are there in the programme code of the Cable Act of 1995 for all to follow. Since the ministry cannot monitor the content of each of them, the sector has remained virtually without any regulation.

But the media seems to have little respect for this autonomy and has involved in all sorts of frivolous activity.
Rule 7 (11), Cable Television Network Rules, 1994 states: “No programme shall carry advertisements exceeding 12 minutes per hour.” An analysis of prime time of six news channels showed that the violation of this law is more the norm than the exception . Five of the six news channels of this study had an average of around 30% and on some channels, 60% of prime time slots went to ads!
There was this fake sting operation against Delhi school teacher Uma Khurana- a totally fabricated television story that sparked off riots in the Capital. This was a blatant violation of all canons of journalistic ethics.

Given the background of how our advertisement dependent media has degenerated and is still struggling for revenue, the question is, “Should we bring broadcasting industry under a more stringent regulatory regime?”

Before moving further let us take a look at the Broadcasting:

Although, the Broadcast Code was chiefly set up to govern the All India Radio, they have ideally been practiced by all Broadcasting and Television Organization; viz: -

     To ensure the objective presentation of news and fair and unbiased comment
     To promote the advancement of education and culture
     To raise and maintain high standards of decency and decorum in all programmes
     To provide programmes for the young which, by variety and content, will inculcate the principles of good citizenship
     To promote communal harmony, religious tolerance and international understanding
     To treat controversial public issues in an impartial and dispassionate manner
     To respect human rights and dignity 

Broadcast codes also do not permit:

a. Criticism of friendly countries
b. Attack on religions or communities
c. Anything obscene or defamatory
d. Incitement to violence or anything against maintenance of law and order
e. Anything amounting to contempt of court
f. Aspersion against the integrity of the President, Governors and the Judiciary
g. Attack on a political party by name
h. Hostile criticism of any state or the centre
i. Anything showing disrespect to the Constitution or advocating change in the Constitution by violence, but advocating changes in a constitutional way should not be debarred.
j. Appeal for funds except for the Prime Minister’s National Relief Fund, at a time of External Emergency or if the Country is faced with a natural calamity such as floods, earthquake or cyclone
k. Direct publicity for or on behalf of an individual or organisation which is likely to benefit only that individual or organisation
l. Trade names in broadcasts which amount to advertising directly (except in commercial services

The greatest difficulty about setting standards in black and white is that we cannot have a standard code for all times. Our standards of morality are evolving. Ten years back, there were protests following some intimate scenes between two women in Water, the Deepa Mehta film; today, there we have movies like Dostana, showing more or less the same content, with hardly any dissent. Society is constantly evolving its moral code. At the same time there cannot be a diktat from the government on what constitutes appropriate content.

The government did propose a regulatory measure in the form of Broadcasting Service Regulation Bill in 2007 but it was vehemently opposed. Like it or not, any proposed content regulation in India is usually viewed as censorship as is the case with the existing Indian censorship system of movies.
The News Broadcasters’ Association submitted a proposal to the Centre marking an important step towards establishing internal or self-regulatory checks on their operations. Apart from a Code of Ethics, the proposal includes the setting up of a Disputes Redressal Authority to entertain and decide on complaints with respect to the content of any broadcast.

Within India’s complex, dynamic and evolving media environment, one alternative form of regulation can be a concept called co-regulation . It is essentially a cooperative form of regulation to achieve public objectives, some elements of self-regulation as well as of traditional command and control regulation. The possible prime benefits of co-regulation can be the expertise and flexibility offered by a more specialized industry-based organization and also a detached regulatory organization that is accountable.

While there can no perfect system, it’s time the key stakeholders- private broadcasters, government, civil society and viewers get together to evolve a system that will help meet the larger goals.

Coverage of Parliament by a journalist

Our Constitution confers absolute immunity from proceedings in any court of law on all persons connected with the publication of the proceedings of either House of Parliament, if such a publication is made by or under the authority of the House. Article 105 (2) that deals with Parliamentary Privileges says, “No person shall be liable to any proceedings in any court in respect of the publication by order under the authority of a house of Parliament, of any report, paper, votes or proceedings.”

The immunity also applies to the publication in newspapers or broadcasts by wireless telegraphy of substantially true reports of any proceedings of either House of Parliament, provided such reports are for the public good and is not actuated by malice. There are a few provisions that should be kept in mind by a journalist while covering Parliament:

    The immunity is given within the overall limitation that Parliament has the power to control and, if necessary, to prohibit the publication of its debates or proceedings and to punish for the violation of its orders. Generally, there are no restrictions imposed on reporting of the proceedings of the Houses. But, if the proceedings of the Houses or for that matter, of its Committees are reported mala fide or if there is any gross misrepresentation or suppression of the speeches of particular members, it becomes a breach of privilege and contempt of the House warranting punishment.
    Similarly, the Press cannot publish the proceedings or evidence given before or any document presented to a Parliamentary Committee before these have been laid on the Table of the House. Nor is the Press expected to disclose the proceedings or decisions of a secret sitting of the House till the ban or secrecy has been lifted.
    It has also to ensure that portions of debates expunged from the proceedings of the House by the Presiding Officer are not published.

In Pandit M.S.M Sharma v. Shri Krishna Sinha (1959), proceedings for the breach of privilege had been started against an editor of a newspaper for publishing those parts of the speech of a member delivered in Bihar legislative assembly which the speaker had ordered to be expunged from the proceedings of the Assembly. The editor in a writ petition under A. 32 contended that the House of Commons had no privilege to prohibit either the publication of the publicly seen and heard proceedings that took place in the House or of that part of the proceedings which had been directed to be expunged. The Supreme Court by a majority of four to one rejected the contention of the petitioner. The court observed that the House of Commons had at the commencement of our Constitution the power or privilege of prohibiting the publication of even a true and faithful report of the debates or proceedings that took place within the House. A fortiori the House had at the relevant time the power or privilege of prohibiting the publication of an inaccurate version of such debates or proceedings.

Article 361-A: Inserted by the 44th Amendment with effect from June 20, 1979 it provides that no person shall be liable to any proceedings civil or criminal for reporting the proceedings of either House of Parliament or a State Legislature unless the reporting is proved to have been made with malice.
Note: This provision does not apply to the reporting of proceedings of secret sittings of the Houses.

By law and convention, what applies to the Press applies to the other media as well. So the above provisions apply for print and electronic media equally.
Among the mass media, the Press plays an important role in parliamentary life. The Press has two main aspects, as a part of what is known as information industry and as a factor in the formulation of opinion. Most of the raw material for parliamentary questions, motions and debates comes from the Press and this is an important instrument on which a Member of Parliament relies. Simultaneously the Press keeps the people informed of what is happening in Parliament.
Every right carries with it a responsibility. Likewise, every freedom carries with it an obligation. It is primarily for a journalist, the main protagonist of the fourth pillar of democracy to determine what are his/her corresponding responsibilities and obligations while reporting for the highest institution of democracy.

What are the Parliamentary Privileges? Write briefly on the articles of the Constitution dealing with Parliamentary Privileges.

To enable Parliament to discharge functions properly the Constitution confers on each house and each member of the Houses certain, immunities and powers. These peculiar rights are called Parliamentary privileges.

Article105 deals with the powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof:
1. Subject to the provisions of this Constitution and the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.
2. No Member of Parliament shall be liable to any proceeding in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.
3. In other respects, the powers, privileges and immunities of each House of Parliament, and the members and the committee of each House, shall be such as may from time to time be defined by Parliament by law, and until so defined, shall be those of that House and of its members and committees immediately before the coming into force of Section 15 of the Constitution (44th Amendment) Act, 1978.
4. The provision of clauses (1), (2), and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to the members of Parliament.

Note: Article 194, an exact reproduction of Article 105, deals with the State Legislatures and their members and committees.

The freedom is thus is very much absolute but still not absolute and is subject to the following condition:

    Freedom of speech in Parliament would not permit a member to discuss the conduct of any judge of the Supreme Court or of a High Court.
    Freedom of speech is subject to the discipline of the rules of Parliament as mentioned in Part V including Articles 107 and 121, the good sense of the members and the control of proceedings by the speaker.
    The freedom of speech guaranteed under clause (1) is different from that which a citizen enjoys as a fundamental right under Article 19 (1) (a).
                   The freedom of speech as a fundamental right is subject to reasonable restrictions under clause (2) of Article 19. The term Freedom of speech as used in this article means that no Member of Parliament shall be liable to any proceedings, civil and criminal, in any court for the statements made in debates in the Parliament or any committee thereof.
    Again this does not apply to what a Member of Parliament says outside. For example, if a member publishes his speech outside Parliament, he will be held liable if the speech is defamatory. So, the freedom of speech under Article 105 (1) and (2) would be available to a Member of Parliament when he attends the session of Parliament

A divided Court, in P.V.Narsimha Rao v. State has held that the privilege of immunity from courts proceedings in Article 105 (2) extends even to bribes taken by the Members of Parliament for the purpose of voting in a particular manner in Parliament. The court was however unanimous that the members of Parliament who gave bribes, or who took bribes but did not participate in the voting could not claim immunity from court proceeding's under Article 105 (2). A review petition is pending in the court regarding this judgment.

Right of Publication of proceedings:

Article 105 (2): No person shall be liable to any proceedings in any court in respect of the publication by order under the authority of a house of Parliament, of any report, paper, votes or proceedings.
Again common law accords the defence of qualified privilege to fair and accurate unofficial reports of parliamentary proceedings, published in a newspaper or elsewhere. The Parliamentary Proceedings (Protection of Publication) Act, 1956 enacts that no person shall be liable to any proceedings, civil or criminal, in a court in respect of the publication of a substantially true report of the proceedings in either House of the Parliament, unless it is proved that the publication is made with malice.

Other privileges:

Clause (3) of Article 105, as amended declares that the privileges shall be such as determined by Parliament from time to time and until that it shall be such as on 20th June 1979 i.e., on the date of commencement of Section 15 of the 44th Amendment. Before the amendment the privileges of each House and its members were such as those of the House of Commons in England at the time of commencement of the Constitution.

There is freedom from arrest limited to civil causes and doesn’t apply to arrest on criminal charges or to detention under the Preventive Detention Act or if arrest is made under s.151 Criminal Procedure Code. It has been held in K. Anandan Kumar v. Chief Secretary, Government of Madras, that matters of Parliament do not enjoy any special status as compared to an ordinary citizen in respect of valid orders of detention.

The chair enjoys the power of ordering the withdrawal of strangers from any part of the House and when the House sits in a secret session no stranger is permitted to be present in the chamber, lobby or galleries

If any question arises as to the disqualification of a member of any house of parliament, Article 103 states that the question shall be referred to the President whose decision shall be final. The President is however required to act according to the opinion of Election Commission.

Right to regulate internal proceedings: Article 122 provides that the validity of any proceedings shall not be called in question on the ground of any alleged irregularity of procedure, and no officer or member of Parliament in whom powers are vested by or under the Constitution for regulating the procedure or the conduct of business or for maintaining order in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.

A House of Parliament or Legislature can proceed quasi judicially in cases of contempt of its authority or take up motions concerning its privileges and immunities for smooth conduct of its legislative functions but it cannot try anyone or any case directly as a court of justice can. If any question of jurisdiction arises as to a certain matter, it has to be decided by a court of law.
A house of Parliament or State Legislature cannot decide election disputes for which special authorities have been constituted under the Representation of People Act, 1951 enacted in compliance with Article 329.
In Pandit M.S.M Sharma v. Shri Krishna Sinha case the Court held that in case of conflict between fundamental rights under Article 19 (1) (a) and a privilege under Article 194 (3) the latter would prevail. It was explained not to mean that in all cases the privileges shall override the fundamental rights.
There is provision for a committee of privileges. Any matter of breach of privilege or contempt is referred to this committee. The committee has power to summon members or strangers before it. The committee's recommendations are reported to the House which discusses them and gives its own decision.

Article 194 talks about the powers, privileges, etc., of the Houses of Legislature and of the members and committees thereof.
Clause (1): There shall be freedom of speech in the legislature of every State subject to the provisions of Articles 208 and 211. A member cannot accordingly raise discussions as to the conduct of a Supreme Court or a High Court judge. The freedom of speech has been conferred on the legislators are not the general provisions of the Constitution but only such of them as relate to the regulation of the procedure of the Legislature.
Clause (2): The freedom of speech under clause (1) is intended to be absolute and unfettered. Similar freedom is guaranteed in respect of the votes in the Legislature or committees.
If a legislator violates freedom of speech as per A. 211 or any fundamental rights guaranteed by Part III of the Constitution in the Legislative Assembly, he would not be liable for any action in any court; he would not be answerable for that in any court. He may be answerable to the House for such a speech and the Supreme Court may take appropriate action against him in respect of it.

Clause (3): Empowers the State Legislature to make laws prescribing its powers, privileges and immunities. Such law, subject to Article 13 and clause (2) of that article would render it void if it contravenes or abridges any of the fundamental rights guaranteed by Part III.

The right of State Legislatures to punish for contempt can be discussed in the light of passing of an order by an unprecedented Full Bench of 28 judges staying the implementation of the U.P. Assembly resolution ordering two judges of Allahabad High Court to be brought in custody before the Bar of the House to explain why they should not be punished for the contempt of the House.
The two judges had admitted the habeas corpus petition of and granted bail to one Keshav Singh who was undergoing imprisonment in pursuance of the Assembly Resolution declaring him guilty of the breach of privilege.
The resolution of the Assembly and the stay order issued by the Full Bench resulted in a constitutional stalemate. Consequently, the president referred the matter under to the Supreme Court for its opinion. The Supreme Court by a majority of 6:1 held that in India notwithstanding a general warrant issued by the Assembly, the Courts could examine the legality of the committal in proper proceedings.
The SC further stated that Article 226 empowers the High Court to issue a writ of habeas corpus against any authority.

Legislative Assemblies and Parliament never discharge any judicial function and there is no immunity from scrutiny by courts of general warrants issued by the House. Parliament and State Legislatures are duty bound to look carefully before making any law, so that it doesn't harm other rights. At the same time the members have to properly use these privileges and not misuse them. The fact that power corrupts and absolute power corrupts absolutely necessitates that the public and the other governing body should always be on vigil.

What is defamation? What are the provisions of IPC dealing with defamation?

 Defamation is the publication of statement which reflects on a person’ reputation and tends to lower him in the estimation of right thinking members of society generally or tends to make them shun or avoid him. In simple term it means tarnishing somebody’s image by speaking or writing something damaging. There are two types of defamation:

1. Libel: written/published form of defamation

2. Slander: spoken/oral form of defamation

There are laws which deal with defamation. The basic idea of having a defamation law is to balance the private right to protect one's reputation with the public right to freedom of speech. It allows people to sue those who say or publish false and malicious comments.

Section 499 of the Indian Penal Code defines defamation as, ‘whoever, by words either spoken or intended to be read, or by signs or by visible, representations makes or publishes any imputation concerning any person intending to harm, or having reason to believe that such imputation will harm the reputation of such person, is said except in cases here in after expected, to defame that person.’

The section further explains what may amount to defamation:

1. To impute anything to a deceased person, if the imputation would harm the reputation of that person if living and is intended to be harmful to the feelings of his family or other near relatives;
2. To make an imputation concerning a company or an association or collection of persons as such;
3. To make an imputation in the form of an alternative or expressed ironically
4. But no imputation is said to harm a person’s reputation unless that imputation directly or indirectly in the estimation of others lowers the moral or intellectual character of that person or lowers that character of that person in respect of his caste or his calling, or lowers the credit of that person or causes it to be believed that the body of that person is in a loathsome state or in a state generally consider as disgraceful’.

The section also talks about ten exceptions about what can’t be termed defamation:

First Exception: To impute anything which is true concerning any person, if it for the public good that the imputation should be made or published.
Second Exception: To express in good faith any opinion whatever regarding the conduct of a public servant in the discharge of this public functions.
Third Exception: To express in good faith any opinion regarding the conduct or character of any person who touches any public question.
Fourth Exception: To publish a substantially true report of the proceeding of a court of justice, or the result of any such proceedings.
Fifth Exception: To express in good faith any opinion whatever regarding the merits of any case, which has been decided by a court of justice or the conduct of any person as a party or witness or agent, in any such case.
Sixth Exception: To express in good faith any opinion whatever regarding the merits of any performance which an author has submitted to the judgment of the public.
Seventh Exception: If a person having any authority over another person, either conferred by law or arising out of any lawful contract to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates.
Eighth Exception: To prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject matter of accusation.
Ninth Exception: To make an imputation on the character of another person provided it is made in good faith for the protection of his or other's interests.
Tenth Exception: To convey a caution, intended for the good of a person to whom conveyed or for public good.

Chapter XXI, Section 500, 501, and 502 of the IPC deals with the punishment for defamation:

Section 500: Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years or with fine or with both.
Section 501: Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
Section 502: Whoever sells or offers for sale any printed or engraved substance containing defamatory matter, knowing that it contains such matter, shall be punished with simple imprisonment for a term which may extend to two years or with fine or with both.

Some famous defamation case of the immediate past:

The Gujarat government's ban of the controversial book by Mr Jaswant Singh Patel under Section 153A or 153B of IPC for an alleged attempt to defame Sardar.

In the Arushi-Hemraj murder case accused Dr Talwar’s initiated defamation proceedings against UP Police for accusing double murder without forensic evidence.
A defamation suit was filed against Forum for Saving Gandhi’s Heritage in New York by Indian National Overseas Congress for defaming Sonia and Rahul Gandhi during their visit there.

Defamation beyond IPC:

Defamation otherwise is also an offence. Section 5B, Cinematograph Act, 1952 prohibits exhibition of a film which is defamatory. Even freedom of the press does not permit to publish defamatory matter though there can’t be prior ban on publication. In R. Rajagopal vs State of Tamil Nadu the Supreme Court held that neither the Government nor the officials had any authority to impose a prior restraint upon publication of a material on the ground that such material was likely to be defamatory of them. It said that penal sanction is better than prior restraint.

Civil and Criminal Law of Defamation:

The Civil law relating to defamation is not codified in India. Civil action against defamation is based on the English Common Law subject to statuary exceptions. Criminal Law of defamation is contained in Sections 499-502 of the IPC.
The main difference between Civil & Criminal proceeding for defamation is pertaining to compensation. While the object of Civil action is to adequately compensate the person defamed for the loss of reputation by damages; the object of Criminal prosecution is to punish the offender by way of imprisonment of fine or both.

A malicious printing or writing or signs, diagrams, cartoons, pictures or visible expression (broadcast) tending to tarnish the reputation of a person so as to expose him/her to public hatred, contempt or ridicule comes under libel. This kind of a libel is usually categorized as civil defamation answerable in damages to the person against whom it is committed. If a libel published by a newspaper / media tends to incite a riot that would be a criminal defamation punishable by the State for the protection of public safety & public good. Publication of obscene, seditious or blasphemous words is punishable under the criminal law of defamation.

Seditious libel:

If defamation results in a criminal prosecution this is known as seditious libel. It is often against the Government, Constitution, Religion, etc. to promote ill-will and hostility between different classes. Seditious libel conforms to the offences of sedition under Section 124A & 153A of IPC. As it poses danger to the public peace, the truth of the statement constitutes no defence.

Three defence:

1. One can defend himself on the grounds that what he said is true... civil onus is on the plaintiff, criminal on the state.
2. If one has a duty to make a statement (eg. activists, social workers), you may be protected under the defence of qualified privilege. For e.g. a teacher making a comment about a student to the student’s parents about his/her bad behaviour. But the teacher won’t be protected if he comments about the student in the media. Well, if you are an MP you can speak under parliamentary privilege. In this case, the speech is protected by absolute privilege, which is a complete defence in Law.
3. You are expressing an opinion –
Note: Another way is, don’t be cowed down by intimidation, uphold truth while writing news stories and articles or while broadcasting news. Use all forms of reforms, legislature to ensure freedom of speech an expression, and also be careful not to misuse it and defame someone out of personal vendetta or prejudice. Call a spade a spade, but beware and aware of the law of defamation.

Defamation and Press:

Libel is one of the greatest dangers or threats to the publisher/broadcaster. If a publication/broadcaster violates the law of defamation, and defames a person, it may be subject to civil & criminal libel. Governments and their officials often want to make the law of defamation more stringent. They argue that even if the matter is brought before a court of law, the accused tenders an apology or escape with a nominal fine or light sentence (maximum punishment IPC 2 years).
On the other hand Press is of the view that the law of defamation often prevents fearless journalism and exposure of corrupt and scandalous officials. Their argument is that there is already too much misuse of criminal defamation by corporate houses and others to silence the critic and flog off free opinion. Most defendants in defamation law suits are newspapers or publishers or TV channels and most plaintiffs are corporations, business men, entertainers, and public figures.
The Press has been suggesting that the offenders be charged with only civil liability and not with criminal defamation. If it was of a criminal nature, a timely apology should relieve the offender. The press as whole has been demanding amendment of the law of defamation on the lines of the English Defamation Act 1952.
In UK, defamation is mainly a civil offence. The offence of defamatory libel lies in the tendency to provoke a breach of the peace unlike the IPC where defamation is a cognizable offence to the extent to which it causes pain in the person who is defamed

What are the functions of Parliament? Describe the conduct of a day in Parliament.

Parliament has four main functions: legislation (making laws), representation (acting on behalf of voters and citizens), scrutiny (examining the government), and formation of government. The functions of the Indian Parliament can be divided into legislative, executive, financial and other categories.

Legislative Functions:

The process of legislating, making laws is the most basic day-to-day function of parliament. Under Articles 245 and 246 Parliament can make laws for the whole or any part of India as defined under the Seventh Schedule.
Parliament can make laws on the subjects mentioned in the Union List which has 97 subjects. Along with the State Legislatures, the Parliament is empowered to make laws on the Concurrent List. In case, both the Centre as well as the States makes a law on the subject mentioned in the Concurrent List then the central law prevails upon the state law if there is a clash between the two. Any subject not mentioned in any list i.e. residuary powers are vested with the Parliament.

To Form or To End Government:

The Indian Parliament, like all parliamentary democracies, forms the government. Members of Parliament, from the largest party in the Lok Sabha or of late from the largest coalition, form the Government at the centre.

The government can function as long as it enjoys the support of the majority of the members of the Lower House.

The Executive Functions:
The executive is responsible to the legislature for all its acts. The Prime Minister and his Council of Ministers are responsible to the Parliament individually as well as collectively. The Parliament can dislodge a ministry by passing a vote of no-confidence or by refusing to endorse a confidence motion.
Parliament also maintains its control over executive in a routine manner through several other ways:
a. The members of Parliament can ask questions and supplementary questions regarding any matters connected with the affairs of the Central Government. The first hour of every working day of Parliament relates to the Question Hour in which the Ministers have to answer the questions raised by the members.
b. If the members are not satisfied with the Government’s answer then they may demand separate discussion on the subject.
c. Calling attention notice or adjournment motion is used to raise matters of urgent public importance. The government always takes these motions very seriously because the government’s policies are criticized.

Censure Motion: This motion implies severe indictment of the government though it does not require resignation of the Council of Members.

d. The Lok Sabha can express its lack of confidence in the executive by disapproving budget or money bill or even an ordinary bill.

The Financial Functions:

The Parliament is the custodian of the public money. It controls the entire purse of the Central Government. No taxes can be legally levied and no expenditure incurred from the public exchequer without specific parliamentary authorization by law (articles 114, 116 and 265).This approval may be taken before the actual spending or in rare cases after the spending.
The annual statement of the estimated receipts and expenditure i.e. budget has to be approved by the Parliament every year. It monitors the expenditure of public funds through Public Accounts Committee, Committee on Public Undertakings, Estimates Committee and the Report of the Comptroller and Auditor General of India.

The Electoral Functions:

The elected members of Parliament are members of the Electoral College and participate in the election of the President of India. They elect the Vice-President. The Lok Sabha elects its Speaker and Deputy Speaker and the Rajya Sabha elects its Deputy Chairman.

A Forum for Debate and Expression of Grievances:

During debate and discussion on legislative proposals or Finance Bills, motion to consider and approve government policies, motion of thanks on the President’s Address, Budget, etc. members are free to express themselves and to say what modifications in the existing policy are required. It acts as a forum for ventilation of the grievances of the people, their difficulties and their passions, anxieties and frustrations. After necessary legislation is taken up in this regard

Power of Removal:

Certain high functionaries may be removed from office on the initiative of the Parliament. The President of India may be removed through the process of impeachment. The judges of Supreme Court and of High Courts can be removed by an order of the President, which may be issued only if a resolution of their removal is passed by both Houses of Parliament by special

Amendment of the Constitution:

Most of the parts of the Constitution can be amended by the Parliament by special majority. But certain provisions only be amended by the Parliament with the approval of States. The Supreme Court has ruled that the Parliament cannot change the basic structure of the Constitution.

 Miscellaneous Functions:

Besides the above-mentioned functions, the Parliaments also performs a variety of other functions. Some of them are as follows:
a. While it is the power of the President to declare Emergency, the Parliament approves all such Proclamations of Emergency. Both the Lok Sabha and Rajya Sabha have to approve the Proclamation.
b. Parliament may form a new State by separating the territory from any State or by uniting two or more States. It may also change the boundaries and the name of any State. In the recent years (2000), new states of Chhattisgarh, Jharkhand and Uttarakhand were created.
c. Parliament may admit or establish new States in the Indian Union (Sikkim in 1975).
d. The Parliament can abolish or create Legislative Councils in the States. This is done only on the request of concerned States Assemblies.

The Two Houses of Parliament:

From the federal point of view the Rajya Sabha represents the States while the Lok Sabha is the representative of the Indian people. The members of Legislative Assemblies of the States elect the members of Rajya Sabha while the people directly participate in the elections to the Lok Sabha. Rajya Sabha is a permanent House while the Lok Sabha is constituted for a specified term of five years. There are three aspects that need to be kept in mind as we are discussing the functioning of the Parliament:
1. Introduction and adoption of money bills and removal of a cabinet by passing no confidence motion are two functions in which Lok Sabha is superior to the Rajya
Sabha i.e. there is no need for the Rajya Sabha to sanction either of these.
2. In certain areas Rajya Sabha has been vested with exclusive powers. For example, it can declare a subject in state as a matter of national importance and facilitate a central legislation.
3. In all other cases both the Houses enjoy equal powers and need to approve, whether it is proclamation of emergency, moving of adjournment or anything else.

Thus the Indian Parliament, though limited by the federal nature of the political system, has wide functions to perform. In performing its functions, it has to mirror the aspirations and needs of the people of India. It also has to function as an agency for resolving socioeconomic or political conflicts in the country. It also helps in building consensus on specific issues, which are crucial to the nation.

Conduct of a day in parliament:

In a democracy Parliament acts as a bridge between the government and the people. The Parliament is the supreme forum through which people seek to realize their aspirations, urges and expectations. The Members of Parliament act as the chief communication channel between the people, Parliament and the Government. So a day in Parliament is designed for legislative functions as well as for the MPs to raise their queries and concerns. A day’s schedule can be normally divided in three parts:

1.    Question Hour
2.    Zero Hour
3.    Regular listed business

Time of commencement of a sitting:

Unless the Speaker otherwise directs, or the House itself decides otherwise, the House ordinarily sits from 11.00 hours to 13.00 hours and from 14.00 hours to 18.00 hours. Though there are some special days when the House meets at other time. They are:
(i)    On the day of the President's Address
(ii)           On the Budget Day

Mode of commencement of a sitting:

A sitting of the House is duly constituted when it is presided over by the Chairman or a member competent to preside over a sitting of the House. Before any of the presiding officers takes the Chair at the commencement of a sitting, the Marshal of the House ensures that there is a quorum in the House. If there is no quorum, the bell is rung till the House makes the quorum. The Marshal announces to the House the arrival of the presiding officer by his designation in Hindi. All present in the House stand up. The presiding officer enters from the Chairman's Chamber which is just behind the Chair and greets the House and takes the seat. Members respond to his greetings and take their seats.
With the quorum in the House and the presiding officer in Chair, the sitting of the House commences. Then the presiding officer proceeds with the business for the day as listed in the List of Business. The same practice is followed when the House reassembles after the lunch-recess or any other adjournment of the House during the course of its sitting.

Quorum for a sitting:

The quorum to constitute a meeting of either House of Parliament is one-tenth of the total number of members of the House. If at any time during a meeting of a House there is no quorum, it shall be the duty of the Chairman or Speaker or person acting as such, either to adjourn the House or to suspend the meeting until there is a quorum.

Question Hour:

The first hour of every sitting is available for the asking and answering of questions. The
Ministries/Departments of the Government of India are divided into five groups and the Ministers concerned answer questions by rotation.

Starred and Un-starred Questions:

Notices of questions by Members can be for oral or written answer.
Unstarred questions are not called for oral answers in the House and thus no supplementary questions can be asked thereon. These questions, along with their answers, are deemed to be laid on the Table of the House and are printed in the official debates of the sitting of the day for which they are put down. The questions asking for information of statistical nature; questions going into administrative details; questions about resolutions of a conference or recommendations of an expert committee, and action taken thereon etc.; questions which raise matters of local interest etc. are put under unstarred category.
Starred questions are taken up for oral answer during the question hour and supplementaries can be asked thereon. Under this category are put those questions only in respect of which supplementary questions are likely to arise.

Note: Not more than five questions in all whether starred or unstarred, can be placed on the lists of questions for any one day. Notice for these questions has to be given 21 days in advance.
Adjournment Motion: The primary object of an Adjournment Motion is to draw the attention of the House to a recent matter of urgent public importance having serious consequences and in regard to which a motion or a resolution with proper notice will be too late. Before the commencement of a session, notices of adjournment motion can at the earliest be given with effect from a day (which is usually the third working day before the commencement of the session) fixed in advance and notified in Bulletin. Notice of an adjournment motion should be addressed to the Secretary-General and given by 10.00 hours on the day on which the motion is proposed to be made. Notices received after 10.00 hours are treated as notices given for the next sitting.

Zero Hour Submissions:

Zero Hour may is the interregnum between the end of Question Hour and the beginning of the regular listed business in the House. There is no procedure prescribed in the Rules of Procedure for regulating the Zero Hour submissions. By conventions and practices Zero Hour has developed without having any specific sanction of the rule book. Zero Hour submissions, like Special Mentions, have also become an established practice and secured a distinct identity so as to warrant a separate treatment and discussion.

Although called Zero Hour, it lasts for may be half-an-hour or more or less. Sometimes it may also occupy full one hour or may even extend beyond an hour, depending on the number of matters which members may like to raise and the gravity and importance of such matters.

The emergence of Zero Hour can be traced to early sixties when many issues of great public importance and urgency began to be raised by members immediately after Question Hour, sometimes with prior permission of the Chairman or some other times without such permission. The "Zero Hour" has been a convention since the days of Dr. Radhakrishnan. People have been permitted to raise questions during this Hour and it goes on in both the Houses.

Zero Hour is of very special importance as Parliament is not only Government and Opposition-it is 630 individual members. It is quite conceivable that for various reasons, neither the Government nor the official Opposition might wish to discuss a matter which ought to be debated. The eternal problem in Parliament is that of reconciling the various claims: Government, Opposition, minorities and the single back bencher.

Regulating Zero Hour:

The Special Mention procedure was introduced in the Rajya Sabha in the seventies. However, the demand for Zero Hour has not diminished even with the introduction of the Special Mention procedure. Since last two years, a practice has more or less developed that members approach the Chairman in his Chamber and give him in writing the subjects they wish to raise. Only those members to whom permission is granted are ordinarily permitted to mention the matter in the House.

Note: Unlike Special Mentions, there is no follow-up action on matters raised as the Zero Hour submissions.

Regular listed business:

After zero hour followed by lunch recess begins the regular listed business of the day. During this hour only new Bill, budget and such government proposals are discussed. This is the longest of the daily sessions of the Parliament and lasts till 6pm.
    In this duration ministers make statements in the House with prior notice to and the Speaker, in order to keep the House informed of matters of public importance or to apprise the House about Government policy. Notices regarding statements to be made in the House by Ministers or statements, reports or papers to be laid on the Table are  accepted from 10.00 hours on the days the List of Business wherein the item has been included, is circulated to members. In a case where a supplementary List of Business is circulated in the House in regard to a statement, notices in respect of that statement, received within fifteen minutes of circulation of the supplementary.