Mamata Banerjee‘s edict on selection of newspapers is a violation of the citizens’ right to know and is an insult to libraries.
Around 1967, Warren Unna of The Washington Post asked Shiv Sena boss Bal Thackeray whether he read any books. He received a stunning reply: “I don’t want to mix my thinking with that of others”. The same arrogance, bred by insecurity, explains the order of March 14 made by the West Bengal government headed by Mamata Banerjee: “In public interest the government will not buy newspapers published or purported to be published by any political party, either national or regional, as a measure to develop free thinking among the readers”. The affinities between the two leaders are striking — populism and intolerance of dissent.
However, Mr. Thackeray’s preference concerned him alone. Mamata’s affects 2,463 government-aided libraries, 12 government libraries, 7 government sponsored ones and the State Central Library. All English language dailies were barred. Initially, a mere eight survived — Sangbad Pratidin, Sakalbela, Dainik Statesman, Ekdin, and Khabar 365 Din in Bengali; Sanmarg (Hindi) and Akhbar-e-Mashriq and Azad Hind (Urdu).
Two of the Bengali dailies are headed by two Trinamool Congress MPs of the Rajya Sabha. The Hindi and an Urdu daily are headed by Rajya Sabha MPs of the same party. Sangbad Pratidin, for example, is owned by Srinjoy Bose, a party MP. Its associate editor Kunal Ghosh was elected recently to the Rajya Sabha on the Trinamool ticket to give the owner company. After an uproar, five more papers were added on March 28; namely, Himalaya Darpan (Nepali), Sarsagar (Santhali periodical), The Times of India, and two others.
There is another aspect, besides. The right to select papers belongs to the management of each library depending on the demand among the readers in that particular area. A central edict is an insult to them. Ms Banerjee’s order also flagrantly violates the citizens’ right to know. It is not for any Minister to prescribe a select bibliography to the Indian citizen. An official acknowledged on March 28: “This is the first instance of such a circular. The management boards of libraries have so far been the final authority on deciding which newspapers and periodicals to offer, on the basis of readers’ demands”. Now the readers are asked to read what Kolkata deems fit for their minds; “in public interest”, of course.
Arbitrary orders are invariably defended by absurd and contradictory explanations. On March 29, Mamata Banerjee and her Sancho Panza, Abdul Karim, Mass Education and Library Services Minister, explained: “We will promote local and small newspapers”. Some dailies on her approved list will not be flattered by this decision apart from the impropriety of State funding of the press.
There is a judicial ruling directly on point by a judge of eminence, Lord Justice Watkins, in the Queen’s Bench Division on November 5, 1986 (R. vs. Ealing Borough Council, ex. p. Times Newspapers Ltd. (1987) 85 L.G.R. 316). He quashed decisions by some borough councils in the U.K. to ban from public libraries within their areas newspapers and periodicals published by Times Newspapers and News Group Newspapers for the duration of an industrial dispute between them and their employees. This was done as a gesture of support to the employees. The court ruled that the authorities had taken into account an irrelevant factor and abused their powers as library authorities under the Public Libraries and Museums Act, 1964. In India, the Constitution itself will render such an act invalid as being an abuse of state power.
The petitioners, represented by Anthony Lester, Q.C., relied on Section 7 of the Public Libraries and Museums Act, 1964, which reads thus: “(1) It shall be the duty of every library authority to provide a comprehensive and efficient library service for all persons desiring to make use thereof; (2) In fulfilling its duty under the preceding subsection, a library authority shall in particular have regard to the desirability — (a) of securing … that facilities are available for the borrowing of, of reference to, books and other printed materials, sufficient in number, range and quality to meet the general requirements and any special requirements of both adults and children …”
The abuse of power was blatant. The councils had but one purpose, namely to punish Rupert Murdoch for his stand in the industrial dispute. The ban was clearly for a purpose ulterior to Section 7. The violation of Section 7 was deliberate and wilful.
India’s written Constitution repairs the omission of any such statute. As H.M. Seervai pointed out in his work Constitutional Law of India, Article 294 vests the assets and properties in the Union or the State Governments, respectively, for the purpose of the Union or the State, in short, for a public purpose.
The U.S. Supreme Court ruled in 1884 that “the United States does not and cannot hold property, as a monarch may, for private or personal purposes. All the property and revenues of the United States must be held and applied, as all taxes, duties, imposts and excises must be laid and collected, to pay the debts and provide for the common defence and general welfare of the United States” (Van Brocklin vs Anderson; (1884-85 U.S. 117 U*S.151 at 158). Arbitrary expenditure unrelated to public purpose also violates the fundamental right to equality (Art. 14).
The Supreme Court of India’s landmark ruling in the International Airport Authorities Case in 1979 opened another avenue of challenge. Justice P.N. Bhagwati held: “The Government cannot be permitted to say that it will give jobs or enter into contracts or issue quotas or licences only in favour of those having grey hair or belonging to a particular political party or professing a particular religious faith. The Government is still the Government when it acts in the matter of granting largesse and it cannot act arbitrarily. It does not stand in the same position as a private individual…
“It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largesse, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which are not arbitrary, irrational or irrelevant.”
These tests render the order of March 14 a nullity on the very face of it. The Courts can strike it down suo moto or on the petition of any citizen.
They will render high service if they did so. For, it will provide a speedy and effective cure to a mindset which is completely out of sync with constitutional values and curbs. Ads have been stopped to “small” papers which depended on them for sheer survival. On Fools’ Day, it was disclosed that the list of Banga Bibhushan awardees, who received Rs. 2 lakh each, included artistes, poets and writers who had campaigned for the Trinamool. Didi looks after her own, albeit at public expense. An Urdu saying casts her in a different light — “Halvai ki dukan par nanaji ki fateha (Prayers for the soul of grandpa at the sweet maker’s shop, at his cost).
Don’t embark on a futile exercise, Shanti Bhushan tells Supreme Court Constitution Bench
The Press Council of India (PCI) on Tuesday suggested that the Supreme Court frame guidelines for the media as these would be in the interest of not only administration of justice and rights of the litigant public but also the media themselves.
“The media, both print and electronic, have been playing an important role in shaping and sustaining Indian democracy,” senior counsel P.P. Rao, appearing for the PCI, told a five-judge Constitution Bench headed by Chief Justice S.H. Kapadia. “The scheme of the Press Council Act itself shows that the intention of Parliament is to allow self-regulation by the media as far as possible. While the print media is within the purview of the Press Council Act, the electronic media is not. Therefore, it is desirable to lay down guidelines for both the print and electronic media to follow in reporting court proceedings, rather than making statutory rules.”
Mr. Rao told the Bench, which included Justices D.K. Jain, S.S. Nijjar, Ranjana Desai and J.S. Khehar, that the court, while framing the guidelines, might take into consideration the relevant norms of journalistic conduct laid down by the PCI. Explaining the powers of the PCI, counsel said: “Section 14(1) of the Press Council Act confers on the Council power to warn, admonish or censure the newspaper, news agency, the editor and the journalist or disapprove [of] the conduct of the editor or the journalist, as the case may be, after holding an enquiry into the complaints. The Council, which is presided over by a retired judge of this court and in which editors, working journalists and managements of big, medium and small newspapers are represented, has laid down Norms of Journalistic Conduct. Self-regulation is always better than statutory regulation. However, when any TV channel, newspaper or news agency fails to adhere to the guidelines laid down by this court, appropriate orders may be passed in the facts and circumstances of each case.”
The former Law Minister, Shanti Bhushan, appearing for some journalists, asked the CJI to dissolve the Constitution Bench hearing the present case, saying it would be a futile exercise. He cited an instance of the former CJI, Justice A.N. Ray, dissolving a 13-judge Bench after he found no support for his case. Mr. Bhushan was referring to a move by Justice Ray, who set up the 13-judge Bench to reconsider the Kesavananda Bharti judgment in which the court had held that Parliament had no right to amend the basic structure of the Constitution.
Mr. Bhushan asked the Bench not to embark on a futile exercise which would be detrimental to the rights of the press and destroy democracy in this country. “No purpose will be solved by going through this exercise.”
Taking the Anna Hazare argument, he argued that people were sovereign in India. “That is the reason why even the right to freedom of press was not absolute in this country. It was instead left to Parliament to lay down reasonable restrictions on this freedom. All institutions in our democracy are people’s institutions. Even the judiciary is accountable to the people. People have a right to know what is happening.”
Senior counsel Anil Divan, appearing for the Editor of The Hindu, Siddharth Varadarajan, commenced his arguments, pointing out the anomaly of the court deciding to lay down guidelines which in this case would “abridge” the freedoms of individuals instead of “protecting” them or “disciplining” officials. Mr. Divan cited the ‘Visakha judgment,’ saying that in that case the court was only seeking to protect fundamental rights of citizens. But in this case the Bench was embarking on a quasi-legislative exercise as once the court framed guidelines they would become immune from judicial review. “I will have no remedy. But tomorrow, if Parliament were to adopt these guidelines, the person aggrieved will have a remedy. I can challenge them before you.”
Mr. Divan said the exercise undertaken by the court was not prudent in view of globalisation of information dissemination technology. “If the guidelines will be coercive or binding in nature, then it is covered by the legislative process.”
The CJI intervened, and said: “The deliberations on the guidelines were not a result of adversarial litigation. We are only trying to regulate the media to the extent that the rights of person in criminal cases are protected under Article 21 [Right to life and liberty] of the Constitution.”
The CJI asked Mr. Divan to address the question whether the rights of the press could be balanced to ensure administration of justice and protect the rights of the accused to ensure a free trial in a criminal case.
Arguments will continue on Wednesday.
- SC will begin contemplating ‘framing of guidelines’ for court reporters (indialawyers.wordpress.com)
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- CJI writes to govt proposing National Court Management System (indialawyers.wordpress.com)
- Reporting guidelines: Supreme Court expands scope of deliberations (indialawyers.wordpress.com)
- The public needs both gavel and pen (indialawyers.wordpress.com)