Close on the heels of his missives to the chief ministers of Bihar and Maharashtra, the chairman of the Press Council of India (PCI), Justice Markandey Katju, has shot off a letter to the speaker of the Karntaka legislative assembly against the crackdown on the media in Karnataka following the Porngate expose.
Below is the full text.
The Hon’ble Speaker
Karnataka Legislative Assembly,
Re: Proceedings against mediapersons for telecasting MLAs watching porn
Some MLAs of the Karnataka legislative assembly were filmed watching porn in the Assembly hall. Instead of commending the mediapersons for their professionalism, proceedings have been started against them.
In my respectful opinion such proceedings against the mediapersons jeopardize the freedom of the media guaranteed as a fundamental right by Article 19 (1) (a) of the Constitution of India, and seek to create an impression that it is the media which has brought the House into disrepute rather than the MLAs involved.
I am informed that an inquiry committee has been set up by the House to enquire into the matter.
In my respectful opinion the inquiry committee can certainly ask the mediapersons concerned questions to ascertain the correct facts about this sordid affair. But from what I could gather, the question being asked give the impression that the mediapersons are being treated as an accused of some offence, and are being grilled accordingly.
Since grave Constitutional questions are involved in this episode I would like to dwell on the matter in some detail.
In our country it is the Constitution which is supreme, not the legislature or executive. The people of India, in their wisdom, and following the examples of the American and French Constitutions, did not give the legislature absolute sovereignty but only limited sovereignty.
Thus the Indian Constitution does not incorporate Hobbes’ theory of absolute sovereignty (see ‘Leviathan’) but instead it incorporates Locke’s theory of limited sovereignty (see ‘the Second Treatise on Civil Government’) and Rousseau’s theory of sovereignty of the people (see ‘The Social Contract’).
Hence neither the legislature nor the executive can violate the constitutional provisions, particularly the fundamental rights like Article 19 (1) (a).
In a democracy it is the people who are supreme, and all authorities, whether legislative, executive or judicial, are only servants of the people. This is also borne out from the Preamble to the Indian Constitution which states:
“We, the People of India,…………..do hereby adopt, enact and give ourselves this Constitution.”
Since the people are the masters , and the legislators only their representatives, surely the public has the right to be informed of the activities of the legislators. And the media is an agency of the people to give them this information.
Hence I do not see what wrong the media has done by telecasting the watching of porn by the MLAs in the House. To my mind the media were only doing their duty to the people of informing them of the shameful manner in which some of their representatives were behaving.
In this connection I would like to refer to the following words in the judgment of Justice Hugo Black of the US Supreme Court in New York Times vs. U.S 403 U.S. 713, 1973 (the Pentagon Papers case):
“Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers deserve to be commended for serving the purpose which the Founding Father saw so clearly. In revealing the workings of the government which led to the Vietnam War the newspapers nobly did precisely that which the Founders hoped and trusted they would do.”
To use similar language, far from deserving condemnation, the mediapersons who revealed to the nation the disgusting scenes of MLAs watching porn in the House deserve to be applauded for their courageous reporting.
Ordinarily, in a democracy all proceedings in a Legislative Assembly must be freely telecast and reported so that the people, who are the supreme authority in a democracy, know how their representatives are behaving. There may, of course, be exceptional situations where this cannot be done.
For example, in the Second World War many secret sessions of the House of Commons were held so that Nazi spies may not know the views of the British political leaders. But such secrecy can only be in exceptional situations. I fail to see what was the exceptional situation in Karnataka which could justify prohibiting mediapersons to report events in the House.
I would therefore respectfully request you to reconsider your decision and withdraw the proceedings against the mediapersons, and instead take strong action against the M.L.A.s who have brought disgrace to the House.
Justice Markandey Katju
Chairman, Press Council of India