The committee of privileges of the 16th Lok Sabha, headed by Meenakshi Lekhi, member of parliament (MP) of the Bharatiya Janata Party, recently tabled its ninth report on the floor of the Lok Sabha regarding the publication of an alleged “defamatory” news item in the Hindustan Times on March 24, 2017, regarding the attendance rates of certain MPs.

The news item had prominently featured the photographs, names and attendance rates of five MPs with the lowest attendance. One of those MPs, Jitender Reddy, had filed a privilege notice with the committee on the grounds that the Hindustan Times report was defamatory and in breach of parliamentary privilege since his actual attendance rate was 87%, thereby causing the committee headed by Lekhi to take up the issue for inquiry.

From a reading of the committee’s report, there is little doubt that the Hindustan Times committed an embarrassing error in putting out the statistics. As admitted by its then editor-in-chief Aparisim Bobby Ghosh before the privileges committee, the figures put out by the newspaper initially were completely incorrect. The newspaper had sourced the data from the not-for-profit think-tank, Parliamentary Research Service (PRS), in the form of a Microsoft Excel sheet, but made several blunders while processing the information. The relevant portion of Ghosh’s testimony before the committee is as follows:

“The data we got from PRS is accurate. The error was on our side when we analysed the data. They were absolutely right that the data they gave us is one hundred percent correct. When we put it on our Excel sheet, we took all the names of MPs alphabetically and on another column, we looked at their attendance record. First, it was done alphabetically. Then, you change the column to see who has the highest and who has the lowest. Since the system was bad at our end, not at PRS end, because it was not properly configured, the column with attendance changed, but the column with names did not change. That is why, you will notice that most of the names are starting with ‘A’ because the alphabetical order on the first column just remained as it was and we did not spot that. We assumed that both sets of column would change, which they should if the system is properly put together. It was not.”

In other words, somebody within the Hindustan Times committed serious blunders while analysing and putting together the data on MS Excel, thereby leading to the erroneous percentages that were published on the front page of the story. This error could have been avoided if the journalists behind the story had called the MPs in question to confirm the figures and if they had asked them for their version of the story. After all, asking the target of a news report for their comment is the most basic lesson of journalism.

On the next day, after discovering its error, the paper published a clarification with the correct figures. However, as pointed out by Jitender Reddy in his deposition, “While the report was carried out on the top with the pictures of the supposedly erring members and commentary citing how absence of members raise questions of accountability and commitment. A corrigendum on the other hand is published on the left bottom corner stating that the corrected and prior wrong figures taking far lesser space than the false report.”

During the course of the proceedings, the managing editor of Hindustan Times, Soumya Bhattacharya, agreed to publish an apology on the same page and in the same format as the report which put out the wrong facts. His testimony before the committee was as follows:

“We will carry an apology in whichever way you would like us to. I am afraid, I again must emphasize that if the apology we carried does not seem adequate, we will carry an apology anyway you would like us to as we are sincere when we are apologizing. Please believe me we are genuinely sincerely apologetic about the matter.”

This apology was published on September 18, 2017. A week earlier, Ghosh’s departure from the Hindustan Times was publicly announced for “personal reasons” just days prior to his deposition before the committee.

But returning to the topic of the proceedings by the privilege’s committee, I must point out that the inquiry into the Hindustan Times on publications of wrong attendance rates isn’t the first time a newspaper has been hauled up. As I’ve written in the Hoot earlier, the Times of India was hauled up for publishing erroneous figures based on a parliamentary report that had not yet been tabled before the House. Over the last two years, the committee has also summoned at least nine senior journalists for other hearings.

Regardless of the errors that led to these inquiries, the larger question that we must pose at this stage is whether journalistic mistakes should be punished for breach of privilege and contempt of the parliament?

The issue of parliamentary privileges has for long been a controversial one. Enshrined in the constitution, these privileges shield the legislators from any legal actions for any speech that they may make in parliament. At the same time, however, these privileges are also sometimes used as a sword by legislators to threaten those whom they feel have defamed or obstructed them. Very often, the targets of the ire of our MPs are lower-level bureaucrats who, in the opinion of the MPs, have insulted them.

Are these MPs abusing their parliamentary privileges? That is a difficult question because parliamentary privileges have not been defined in the constitution and parliamentary committees have steadfastly recommended against codifying such privileges. Article 105 of the constitution is very vague on the scope of such privileges. The power, however, is used by parliament for a range of activities – from initiating inquiries against journalists to treating certain aspects of proceedings before the committee as confidential.

It is a small relief that parliament has been much more circumspect about using its privileges to jail people, unlike some state legislatures in Karnataka, Tamil Nadu and Maharashtra who have invoked their legislative privileges to imprison journalists and common citizens.

In the case of Karnataka, the legislative assembly controlled by the Indian National Congress (INC) sentenced two journalists to jail last year for allegedly breaching the privilege of the assembly.

In 2003, the Tamil Nadu legislature sentenced journalists and editors at The Hindu to jail for 15 days.

The judiciary is usually reluctant to review such actions by legislatures and there is also controversy and confusion over whether legislative privilege can be subject to judicial review.

This reluctance of the courts to review such an exercise of the power of privilege is even more of a reason to be concerned about the manner in which the legislature exercises its power to punish for breach of privilege.

It may, however, be time to ask whether legislators, like any other citizen, should be required to protect their reputation, like the common man, under ordinary civil law of defamation or administrative procedures before the Press Council, rather than invoking a constitutional power that is not subject to independent judicial review.

Prashant Reddy T. is an assistant professor at the National Academy for Legal Studies and Research (NALSAR), Hyderabad and is co-author of Create, Copy, Disrupt: India’s Intellectual Property Dilemmas (OUP).