– By Apoorva Mishra
When we speak about the “right” to free speech, we do not just mean – as might seem at first glance – the right of speakers to speak unhindered. We also mean the rights of listeners and hearers to receive information. Most of the scams and organized crimes expose by Indian media through sting operations and access to confidential information. While a sting operation requires lengthy preparations, an information leak is relatively simple. A member of the government or someone who has access to confidential information reveals it to a journalist who further investigates it to create a story. All this gives rise to several moral and legal questions mainly related to the authenticity of the news, the procedure of obtaining it and well the security of the “secret source”.
Journalist’s Privilege and Law
Indian laws are largely silent on these issues however the court have gone into the question of identification of the secret source.
In Jai Prakash Agarwal v. Bishambar Dutt Sharma (1986), the Delhi High Court directed the reporters to disclose their sources for a story claiming that a judicial verdict in an election petition was fixed. In another case against The Hindustan Times, the high court at Patna ruled that it was within its power to ask a journalist to disclose his source. Secondly, placing reliance on the 1997 judgment in the Pioneer case, Delhi High Court stated that the court ought not compel disclosure unless required in the interest of justice. In absence of any statutory provision or Supreme Court ruling, this case settled that courts are inclined towards the recognition of the privilege. Moreover, the Law Commission has recommended that this privilege be codified for clarity on the subject.
The rationale of these judgments is that the privilege to journalists to play the role of a watchdog and keep a track of governance without any fear of compulsion should not be abused. Irrespective of Law Commission of India’s recommendations to codify the privilege, successive governments have shied away from doing so for fear of making the media more powerful, especially when there is nobody to keep them accountable.
The Current Position
Therefore, at present India has no statutory law or any Supreme Court precedent that protects journalists and their sources from identification and high courts are mostly unfavorable to Journalists.
However, other major democracies have not ignored these issues. The UK, in 1981 itself declared that no journalist can be forced to disclose the source of information unless necessary in the interests of justice, national security or prevention of crime, to a court’s satisfaction.
The rationale of the privilege otherwise recognized around the world is that journalists will be unable to play the role of a watchdog unless they can guarantee confidentiality to their sources. It is a departure from the general rule that everybody has a legal obligation to give evidence.
India is yet to mature as a democracy and Indian media is also not high on morals, therefore, a law that keeps a proper balance of journalistic privilege as well accountability should be brought.
Importance of Journalist’s Privilege
The main principle behind journalistic privilege has very little to do with journalists themselves. In order to fulfil their duties in a democracy, the press often have to rely on anonymous sources and without a strong legal guarantee of anonymity, very few people would come forward and furnish information. Such fear remains a deterrent irrespective of whom the informant contacts. While it is more common to contact a journalist with sensitive information, people who disclose information about unlawful activities to the public need to be protected irrespective of whether the disclosure was made to a journalist or a lawyer. It is the severity of the risk that warrants protection and not the identity of the person to whom the disclosure is made.
Need for a statutory protection of anonymous sources in India
The Law Commission has made two recommendations on the matter, but they have largely been ignored so far. They have mainly centered around including journalistic privilege in the Indian Evidence Act, 1872 as part of the rule on “privileged communication” which covers attorney-client, doctor-patient, and spousal communication. Sections 126 to 129 and 132 of the Act cover such communication and the best way to integrate journalistic privilege in our existing laws is to amend these sections.
Further, just as the fundamental right to freedom of speech and expression is subject to certain reasonable restrictions, the protection of anonymous informants should also be a qualified privilege, with similar exceptions on matters of national security, public order, and friendly relations with foreign states.
As long as the primary intent of the law is to protect the informant, there is no reason why lawyers and activists should be extended the same privilege. Any person who is used as a medium by people who take risks to make the public aware of the truth must have the right to invoke it. When confronted with matters such as that of the CBI Chief’s visitors’ logbook, courts must look beyond the text and focus on the intent and spirit of the law. Complete prohibition on disclosure of the source might not work. We need to carve exceptions like national security, contempt of court, official secrets, public interest and terrorism related issues. Qualified privilege will suit the Indian model because of its flexibility.
 30 (1986) DLT 21
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