Practice Area

Do we need a privileged status for journalist's sources

Author: Devna Arora

The press performs the vital function of keeping the public informed. Reliance is placed by journalists on confidential sources for such information. This comment analyzes whether a reporter can be directed in the interest of justice to disclose the source of information or should he further claim journalistic privilege as a defense. Journalists do have a moral duty to protect their confidential sources, but it needs to be seen the extent to which the rule of professional conduct has received legal recognition in India.

 Present position in India 

Journalist privilege is not recognized under the Indian law but the law commission report suggests the inclusion of the same. There is a recommendation to insert section 132A by amending the Indian Evidence Act. The only provision which exists as of now is under the Press Council Act, 1978, wherein while giving evidence in press council proceedings there is protection offered to journalist sources.

Inclusion as evidentiary privilege

The evidentiary rules have recognized source confidentiality in the form of attorney-client, doctor-patient and spousal communications.  This comment proposes to provide yet another evidentiary privilege between journalist and his source. There are two antithetical ways of viewing this issue. Few authors support the view that journalistic privilege has not been codified in India, it should not be recognized by the courts. I strongly disagree with this point of view.

Firstly, we need to understand the rationale underlying evidentiary privilege. All privileges recognized by law are needed for the proper functioning of a particular relationship be it husband-wife or attorney client. It is the fiduciary relationship of trust that we seek to protect. A similar relationship of trust exists between the journalist and his source, demanding the treatment accorded to privileged relationships.

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.

Insertion of section 132A

Accepting that the news gatherer source relationships need special protection, the question comes how can such protection be effectively implemented. Before amending the Indian Evidence Act for insertion of section 132 A there are certain things which have to be kept in mind.  

1.  ‘Journalist’  

The term ‘journalist’ has not been defined in any of the existing Indian legislations. A dangerously broad definition of the term would lead to misuse of the section. The law makers need to pick between the traditional meaning of the term ‘journalist’ and wider meaning accorded in the digital era. In my view, inclusion of bloggers, freelancers, part time journalists and writers writing for personal gain should be excluded.  

2. Absolute privilege or Qualified Privilege 

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.  

Building on the aforementioned ideas, the comment concludes that if the press is compelled to disclose their sources soon they would be bereft of information. From Watergate scam to Wikileaks, the wrath of sensitive information is increasing and like other countries India needs to have its domestic legislations clear on this issue.