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Report No. 93

Chapter 3

Evidentiary Privileges in India, and Their Rationale

3.1. The exceptions to the general rule.-

To the general rule that every person of sound mind is compellable to answer before a Court all questions held by the court to be relevant to matters under inquiry, a few exceptions are provided by law. There is, in the first place, a constitutional privilege against self¬incrimination,1 no person accused of an offence shall be compelled to be a witness against himself. Secondly, under the Evidence Act,2 certain matters are privileged from disclosure in a court of law. The provisions on the subject are somewhat elaborate. It would be convenient to quote from the Report of the Law Commission on the Evidence Act3, where the matters so privileged were summarised as under:-

"(1) matters relating to conduct of judges or coming to the knowledge of judges, etc. in their judicial capacity (section 121);

(2) communications which are made to a spouse during marriage (section 122);

(3) State secrets (sections 123-124);

(4) communications between a legal adviser and a client (sections 126 and 129);

(5) certain title deeds (sections 129, 131); and

(6) certain incriminating matters (section 132)."

Journalistic privilege is not recognised in Indian Law. Although there do not appear to be any reported Indian decisions on the subject, this is a fairly well established position, and is borne out by at least two incidents that took place in India in the past, where journalists preferred to court punishment rather than disclose their correspondents or contributors.4 In one case, Kaliprasanna Kavyabisharad, editor of the Hitabadi, declined to say who was the writer of a poem published in his paper for which he had been charged with libel. The manuscript was produced in court, but with the portion in which the name appeared torn off. He was sent to jail for nine months.5

In the other case, Bepin Chandra Pall was sentenced to six months' imprisonment, because he refused to depose who was the author of an article for which Aurobindo Ghose was being tried for sedition. Aurobindo Ghose was subsequently acquitted. Pall was sent to jail for six months5 for refusal to depose as to the above fact.

1. Article 20(3), Constitution of India.

2. Sections 121-132, Indian Evidence Act, 1872.

3. Law Commission of India, 69th Report (Indian Evidence Act), para. 62.13.

4. Note Journalistic Privilege, (1963), Vol. 1, No. 9, Supreme Court Appeals.

5. Editorial Journalists and Their Sources, (31st March, 1980), Vol. 84, CWN 85-87.



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