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The Constitution and Journalists? Sources

The recently tabled US Free Flow of Information Bill that seeks to balance the right to protect journalists? sources with the people?s right to free flow of information and also the state?s duty to administer justice and punish offenders, provides India with a good model to work on. The Indian media, in turn, must work together to draft a bill and move the government of India to ensure its enactment in Parliament.

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The Constitution and Journalists’ Sources

The recently tabled US Free Flow of Information Bill that seeks to balance the right to protect journalists’ sources with the people’s right to free flow of information and also the state’s duty to administer justice and punish offenders, provides India with a good model to work on. The Indian media, in turn, must work together to draft a bill and move the government of India to ensure its

enactment in Parliament.

A G NOORANI

T
he Free Flow of Information Bill introduced in the US Senate on May 18, 2006 seeks, to ensure the free flow of information to the public, through a free press, while protecting “the right of the public to effective law enforcement” and administration of justice. It balances the right to protect sources with the people’s right – and the state’s duty – to detect crime and prosecute offenders.

Be it an inspector of police, a district magistrate or even a commission of inquiry, any one who breezily asks a journalist to disclose his sources should be reminded that his right to protect his sources flows directly from his fundamental right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. That right, the Supreme Court has ruled repeatedly, includes the right to receive information. Without it, freedom of speech would be rendered meaningless. But, as the US supreme court noted. “Without some protection of seeking out the news, freedom of the press could be eviscerated”.

No right is absolute. The right to freedom of speech is subject to imposition by “law” of “reasonable restrictions” on grounds specified in Clause 2 of Article

19. There must be a statute, a “law”, on the point. An executive order will not suffice. The restrictions must be “reasonable”. It is for the courts to decide whether a given restriction is reasonable or not.

In order to appreciate the US Bill, the background must be borne in mind. In the US, Britain and elsewhere, journalists have gone to prison rather than betray their sources. No journalist guilty of such betrayal would ever be trusted by a source. Section 10 of the British Contempt of Court Act, 1981 says, “No court may require a person to disclose, nor is any person guilty of contempt of court, for refusing to disclose the source of information contained in a publication for which he was responsible unless it be established to the satisfaction of the court that disclosure is necessary in the interest of justice or national security or for the prevention of disorder or crime”. Judges’ notions of what is “necessary” vary, as would those of any others, journalists included. The approach of the European Court of Human Rights has been more liberal than that of the House of Lords.

Under the Police and Criminal Evidence Act, 1984 a partial shield against enforced disclosure in criminal investigations was given to “journalistic material”. Under Sections 11 and 14, all “journalistic material” became either excluded material (if it is held in confidence and consists of documents or other records) or “special procedure material” (if it is not held in confidence, or is in any other form). The effect of this is that no search warrant can be granted in respect of such material unless the highly restrictive conditions on the grant of warrants (under schedule 1, paragraph 12) are met. In relation to most investigations, the police have to apply for an order for access or production rather than a warrant, and the procedure requires notice of the application to be given to the person holding the material.

The British Press Complaints Commission is charged with enforcing a Code of Practice (1994) framed by the British press itself; neither the government nor the commission. Para 16 ordains: “Journalists have a moral obligation to protect confidential sources of information”.

In the US, the leading case is that of Branzburg vs Hayes (408 US 665) decided in 1972. The court was evenly split. Four justices, namely, chief justice Burger and justices White, Blackmun, and Rhenquist held that the First Amendment (guarantee of free speech) does not accord a newsman privilege against appearing before a grand jury and answering questions as to either the identity of his news sources or information which he has received in confidence.

Justice William Douglas dissented on the ground that a newsman has an absolute right not to appear before a grand jury. Justice Stewart, joined by justice Brennan and justice Marshall, dissented on the ground that before a newsman is asked to appear before a grand jury and reveal confidences, the government must show:

(a) probable cause to believe that the newsman has information clearly relevant to a specific probable violation of law; (b) that the information cannot be obtained by alternative means less destructive of First Amendment rights; and (c) a compelling and overriding interest in the information. Powell while concurring in the court’s opinion, filed a separate judgment emphasising the limited nature of the court’s decision. His judgment, therefore, is the governing judgment of the court. He said:

I add this brief statement to emphasise what seems to me to be the limited nature of the court’s holding. The court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources…If the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source of relationships without a legitimate need of law enforcement, he will have access to the court on a motion

Economic and Political Weekly July 8-15, 2006

to quash and an appropriate protective order may be entered. The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.

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The report of the Second Press Commission in India (1982) stressed that the balance will have to be struck in each case. But no guidelines were laid down. Five members dissented and urged disclosure “if at all, in extreme cases only”.

The Law Commission of India, in its 93rd report on Disclosure of Sources of Information by Mass Media submitted to the government of India on September 9, 1983, considered this question at some length in the light of legal developments in the law in Britain, the US and elsewhere, and recommended the insertion of an explicit provision in the Indian Evidence Act, 1872 (Section 132A) in recognition of the right. It reads as follows: “132A. No court shall require a person to disclose the sources of information contained in a publication for which he is responsible, where such information has been obtained by him on the express agreement or implied understanding that the source will be kept confidential”.

This is preposterous. There can be no such unqualified right to protect a source. A journalist who is told by a person that he would rob a bank or assassinate a politician should be bound to reveal his source in the interests of justice as against the cause of a free press. In an open society, conflicting rights and interests have to be balanced all the time by the public and by the courts of law. That S 15(2) of the Press Council of India Act, 1978 confers an absolute protection is not relevant. The council is a court of honour. Its verdict has only a moral force.

The US Bill tries to strike such a balance. Clause 4 of the Bill reads thus: “(a) In general – except as provided in subsection (b), in any criminal investigation or prosecution, a federal court may not, upon the request of an attorney for the US, compel a journalist, any person who employs or has an independent contract with a journalist, or a communication service provider to disclose: (1) Information identifying a source who provided information under a promise or agreement of confidentiality made by the journalist while acting in a professional news gathering capacity; or (2) any records, communication data, documents, or information that the journalist obtained or created while acting in a professional news gathering capacity and upon a promise or agreement that such records, communication data, documents, or information would be confidential. (b) Disclosure – Compelled disclosures otherwise prohibited under subsection (a) may be ordered only if a court, after providing the journalist, or any person who employs or has an independent contract with a journalist, notice and an opportunity to be heard, determines by clear and convincing evidence that – (1) the attorney for the US has exhausted alternative sources of the information; (2) to the extent possible, the subpoena – (A) avoids requiring production of a large volume of unpublished material; and (B) is limited to – (i) the verification of published information; and (ii) surrounding circumstances relating to the accuracy of the published information; (3) the attorney for the US has given reasonable and timely notice of a demand for documents; (4) non-disclosure of the information would be contrary to the public interest, taking into account both the public interest in compelling disclosure and the public interest in news gathering and maintaining a free flow of information to citizens; (5) there are reasonable grounds, based on an alternative, independent source, to believe that a crime has occurred, and that the information sought is critical to the investigation or prosecution, particularly with respect to directly establishing guilt or innocence; and (6) the subpoena is not being used to obtain peripheral, non-essential, or speculative information.” These are valid conditions.

Clause 5 confers similar protection if it is an accused in a criminal trial who seeks disclosure. He would have to establish that: “(1) the criminal defendant has exhausted alternative sources of information; (2) there are reasonable grounds, based on an alternative source, to believe that the information sought is directly relevant to the question of guilt or innocence or to a fact that is critical to enhancement or mitigation of a sentence; (3) the subpoena is not being used to obtain peripheral, non-essential, or speculative information; and (4) non-disclosure of the information would be contrary to the public interest, taking into account the public interest in compelling disclosure, the defendant’s interest in a fair trial, and the public interest in news gathering and in maintaining the free flow of information”.

Clause 6 relates to civil suits. The tests are narrower. It must be proved that: (1) the party seeking the information has exhausted alternative sources of the information;

  • (2) the information sought is critical to the successful completion of the civil action;
  • (3) non-disclosure of the information would be contrary to the public interest, taking into account both the public interest in compelling disclosure and the public interest in news gathering and in maintaining the free flow of information to the widest possible degree about all matters that enter the public sphere; (4) the subpoena is not being used to obtain peripheral, non-essential, or speculative information. The information sought must be limited. The court has a wider discretion.
  • Clause 7 excludes protection to a journalist who is an eyewitness or a participant in crime; Clause 8 likewise excludes protection if disclosure is necessary to “prevent reasonably certain death or substantial bodily harm” as Clause 9 does in the “national security interest”. Clause 10 excludes protection if information has been obtained “without promise or agreement of confidentiality”.

    This Bill provides us with a good model to work upon. The media, print and electronic, must get together to draft an Indian Bill and move the government of India to get it enacted by Parliament. The US Bill has one serious defect. It is confined to professional journalists who work for financial gain. What about the pamphleteer or an editor like the late A D Gorwala who published his weekly Opinion from 1960-1985; not for financial gain, but at financial loss. Its annual subscription was Rs 2 only. They do not make men like him any more.

    [li
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    Economic and Political Weekly July 8-15, 2006

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