Soon after the controversial arrest of environmental activist Disha Ravi by the Delhi Police, her lawyers approached the Delhi High Court in a writ petition, alleging that the police had leaked her Whatsapp conversations to the media in a mala fide act. Before the single bench, the police took the stand that they had shared no information with any media house. The impugned articles and videos of the various channels however claimed to the contrary, as the court observed. By its order dated 19th February 2021, the court issued a set of interim directions to the police and to the respondent media houses, holding them accountable to their own respective professional standards. Pertinently, the court also made an observation that “a journalist cannot be asked to reveal the source”.
In another matter pending before a division bench of the Delhi High Court, an accused in the Delhi riots case approached the court alleging that the Delhi police had leaked his police confession to certain media houses which then ran stories that were to his prejudice. Predictably, the police denied any involvement in leaking out details of the investigation. Interestingly, in this case the court directed the respondent Zee Media to file an affidavit disclosing its sources.
Both these cases deal inconsistently with the issue of disclosure of sources by journalists. This inconsistency is in fact occasioned by a vacuum that exists in Indian polity and jurisprudence when it comes to journalistic privilege. In this article, I intend to examine the contours of this privilege as it exists in other jurisdiction, as well as the sparse judicial attention that it has received in India. I argue that source privilege of journalists should be recognized by legislation, but at the same time, significant weight should be given to the countervailing interests of fair trial and rights of the accused.
Journalistic privilege in India- The judicial landscape
Testimonial privilege is an exception to the common law principle that a judicial system is entitled to ‘every man’s evidence’. The Indian Evidence Act of 1872 extends testimonial privilege to three classes of relationships- spousal privilege, attorney-client privilege, and privileged official communications (Sections 122-127 of the Act). The protection is not absolute, and is subject to the qualifications mentioned in the statute. Source privilege for journalists is conspicuously absent from the statutory scheme of the Act. Section 15(2) of the Press Council of India Act, 1978 provides complete protection to journalists from disclosing their source, but the protection only operates against the Press Council itself in performing its functions under the Act.
Judicial engagements with journalistic privilege have been few and far in between from various High Courts, with no pronouncement on the subject by the Supreme Court. In a 1986 judgment in the case of Jai Parkash Aggarwal v. Vishambhar Dutt Sharma the Delhi High Court observed that journalists as a class have no absolute immunity against disclosing their sources. It advocated a balancing exercise to be done on a case to case basis- weighing the interests of source privilege against the interests of justice and public interest. The Patna High Court, in Resident Editor, In Re, called for a similar approach in weighing competing interests before calling for journalists to disclose their sources. In Javed Akhtar v. Lana Publishing Company, the Bombay High Court in a defamation suit recognized the importance of journalistic privilege but confined it to cases “when the information or material published is of public importance, as for example, if the information relates to malpractices in a government organization”.
The Law Commission, in its 93rd report recommended the insertion of a Section 132 A in the Evidence Act conferring qualified immunity on journalists, subject to interests of justice, national security, and crime prevention.
Journalistic privilege in international jurisdictions
The European Court of Human Rights in Goodwin v. United Kingdom has placed journalistic privilege on a very high pedestal, reading it into the free speech jurisprudence of Article 10 of the European Code of Human Rights, subject only to a high threshold ‘necessity test’. France confers the closest approximation of absolute immunity to journalists. Article 109(2) of the Code of Criminal Procedure gives journalists unqualified liberty to not disclose their sources.
In the United Kingdom, Section 10 of the Contempt of Courts Act, 1981 provides qualified immunity to journalists, subject to the interests of national security, justice and crime prevention. Section 10 of the Zimbabwe Civil Evidence Act, 1992 similarly provides for qualified privilege in public interest.
The Supreme Court of the United States, by a 5-4 majority in Branzburg v. Hayes, ruled that journalists were not entitled to source privilege under the First Amendment. The dissenting opinion held that journalists ought to be afforded source privilege, and the government would have to show a ‘compelling and overriding interest’ in the testimony which could not be served by alternative means. As of 2018, forty nine states have enacted shield laws with different levels of immunity.
Freedom of expression v/s rights of accused in the context of journalistic privilege
The absence of either statutory recognition of journalistic privilege, or of Supreme Court precedent defining its contours can lead to situations where various High Courts and lower courts apply different and discordant approaches for dealing with source disclosure by journalists in India. The few High Court decisions on the issue all seem to agree that journalistic privilege has some value, but there is no consistent principle that guides them in measuring the privilege against competing interests. The position as it stands now is to let the courts decide each case on its own facts, applying their own ‘interests of justice and security’ scale.
Journalistic privilege stands on a different footing from other testimonial privileges because it relates directly to free speech rights under Article 19(1)(a). As held by the ECHR in Goodwin, compelling journalists to disclose their sources will have a chilling effect on the free flow of information which would violate the freedom of expression guarantee under Article 10 of the ECHR. As argued here, the Indian Supreme Court’s acceptance of the individual’s right to receive information to be part of freedom of speech makes a compelling case for an Article 19(1)(a) right against compelled disclosure.
The debate on journalistic privilege has largely been framed in various jurisdictions in terms of the interests of whistle blowing or conscientious journalists pitted against much more powerful interests of government or corporate entities. In such an equation, statutory immunity against disclosure for good faith journalism is a very important safeguard for a healthy democracy. However, as the two recent examples before the Delhi High Court illustrate, a largely pliant Indian media is more than willing to subvert due process rights of accused persons, in collaboration with the powers that be. In this context, any endeavor at bringing in journalistic privilege as a legal safeguard must concretely foreground the fair trial rights and interests (and right to privacy) of accused persons who might find themselves in the crosshairs of such journalism. As held by the Bombay High Court in Maria Monica Susairaj v. State of Maharashtra, “it is only and only ‘a responsible press’ which can claim not only freedom but also an immunity from being compelled to divulge the source of its information”. This qualification, I contend, has to be separately carved out and defined, over and above other more general qualifications of ‘interests of justice’ or ‘interests of public’ which are vulnerable to divergent interpretations by courts.
The absence of any law on journalistic privilege has created a vacuum in the heart of freedom of speech jurisprudence in India. Tentative attempts at giving form to this vacuum by various High Courts have been inconsistent and have not contributed to shaping any discernible guiding principle to measure the privilege. An independent and unencumbered media, critical to the functioning of a robust democracy, requires strong legal immunity against source disclosure to maintain its role as a watchdog.
However, imagining the contours of this immunity will also need to factor in the unfortunate reality that a large section of the mainstream media finds it profitable to militate against the rights and interests of those accused by the state machinery of crimes of a political nature. Therefore, any law on journalistic privilege needs to be circumscribed by an equally strong and well defined qualification safeguarding the rights of accused persons against unethical journalistic practices.
Amartya Kanjilal is a Litigation Associate at Project 39A.