As The Bengaluru Police Seeks Disclosure Of A Journalist’s Source, The Legal Position In India Leans In Favour Of Its Protection

The e-file noting pertained to the reinstatement of an accused in the teacher recruitment scam as managing director of the Karnataka Text Book Society. The accused was arrested and released on bail.

The FIR, under section 66 of Information Technology Act, 2000, was reportedly filed against unnamed persons for allegedly accessing and leaking the document from the department’s e-office portal.

Under Section 66 (1) Whoever with the intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or any person destroys or deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means, commits hack. Under Section 66 (2) Whoever commits hacking shall be punished with imprisonment up to three years, or with fine which may extend upto two lakh rupees, or with both.

It appears far-fetched to allege that accessing and leaking a document from an official portal, which is not a classified document, is hacking under the Information Technology Act. But is the portal within its rights and duty-bound to protect the interests of the source?

The Supreme Court, while hearing the review petition filed in the Rafale deal case, observed that the Right to Information Act, 2005 revolutionised governance in India, and trumps the Official Secrets Act (OSA). The former editor-in-chief, and director, The Hindu Group of Publications, N.Ram, who wrote a series of articles in The Hindu on the leaked documents in the Rafale case, had claimed that he would not disclose his sources.

On April 10, 2019, the Supreme Court rejected the Centre’s preliminary objections against relying on the leaked documents in the Rafale case, claiming privilege, and decided to hear the review petitions on merits. On the publication of three purportedly confidential documents by The Hindu, the Supreme Court held that the right of such publication is in consonance with the constitutional guarantee of freedom of speech (Paragraph 4). The three-judge bench, which delivered the judgment, further held: “In fact, the publication of the said documents in ‘The Hindu’ newspaper reminds the Court of the consistent views of this Court upholding the freedom of the press in a long line of decisions commencing from Romesh Thappar vs. State of Madras and Brij Bhushan vs. The State of Delhi.”

The bench added: “There is no provision in the Official Secrets Act and no such provision in any other statute has been brought to our notice by which Parliament has vested any power in the executive arm of the government either to restrain publication of documents marked as secret or from placing such documents before a Court of Law which may have been called upon to adjudicate a legal issue concerning the parties.”

The bench, relying on the judgment delivered in S.P.Gupta vs Union of India, further observed: “A claim of immunity against disclosure under Section 123 of the Indian Evidence Act has to be essentially adjudged on the touchstone of public interest and to satisfy itself that public interest is not put to jeopardy by requiring disclosure the Court may even inspect the document in question though the said power has to be sparingly exercised.”

On the question whether the journalists could be guilty of improperly and illegally procuring a document, the bench observed:

“ In Pooran Mal vs. Director of Inspection (Investigation) of Income­Tax, New Delhi this Court has taken the view that the “test of admissibility of evidence lies in its relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out.”

It may be argued that unlike the Rafale documents, which were already in the public domain, when the Supreme Court dismissed preliminary objections, the Karnataka e-office file noting of the Education Department, which The File had published, was not. The Supreme Court, in the Rafale review case, had noted the fact that there was no FIR filed against the leaking of the documents in the first place. But what the Supreme Court observed with regard to the role of the public authority in allowing access to information, is of relevance in the Karnataka case as well. The bench observed in Paragraph 9 thus:

“Section 8(2) of the Right to Information Act (already extracted) contemplates that notwithstanding anything in the Official Secrets Act and the exemptions permissible under sub­section (1) of Section 8, a public authority would be justified in allowing access to information, if on proper balancing, public interest in disclosure outweighs the harm sought to be protected.”

These are important latest precedents which govern the law on protection of journalists’ sources, which are clearly applicable in the Karnataka case. In a sense, the Supreme Court’s judgment in the Rafale review case dismissing the Centre’s preliminary objections cleared the uncertainty about journalistic privilege with regard to non-disclosure of sources.

In Jai Prakash Agarwal vs Bishambar Dutt Sharma (1986), the Delhi High Court, in a contempt of court case, held that the journalists or the information media had no absolute immunity or obligation to disclose their source of information in court when asked to do so. But the high court qualified it saying before the Court directs the disclosure of source it must satisfy itself that it is in the nature of justice and is not against the public interest. It also added that it would necessarily depend on the nature of the case and the offending item of the news published.

No doubt, the journalistic privilege not to disclose one’s source of information is a departure from the rule that everyone has an obligation to give evidence. The Law Commission had recommended twice to codify this privilege, in its 93rd (1983) and 185th Reports. The 93d Report recommended insertion of Section 132A in Indian Evidence Act, 1872 to recognise this privilege. The proposed provision read thus: “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”. The Law Commission (2003) in its 185th report reiterated its recommendation to include source protection privilege for the journalists by the inclusion of section 132A in the IEA.

Writing in the Economic and Political Weekly in March 2006, A.G.Noorani had considered this recommendation preposterous. He wrote that 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, Noorani had written.

Noorani wrote in favour of the U.S. Free Flow of Information Bill, introduced in the U.S.Senate on May 18, 2006, which sought 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. The Bill, which has been introduced many times in the U.S. Congress is yet to be passed, due to opposition from its critics.

The Indian Evidence Act, while defending communications between a lawyer and his client, and between husband and wife, however, is silent on the confidentiality of journalistic sources.

Although Section 15(2) of the Press Council Act, 1978 provides immunity from disclosing the source of any news or information reported by a journalist, this is applicable only with regard to proceedings before the Council.

Foreign case law suggests that if the purpose of journalistic privilege not to disclose sources is to bring the wrongdoing to the public notice, it would deserve a high degree of protection. In Canada, Journalistic Sources Protection Act, 2017 amends the Canada Evidence Act to protect the confidentiality of journalistic sources. It allows journalists to not disclose information or a document that identifies or is likely to identify a journalistic source unless the information or document cannot be obtained by any other reasonable means and the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source.