Report No. 93
8.5. Comments received on the fifth question.-
The fifth Question in the Working Paper solicited views on the very important issue whether there should be a privilege as such which would be absolute, or whether the judge should have a discretion in the matter. In his article in the Statesman, Shri Sahai (in the opening portion of his general observations), has stated as under:
"It may straightaway be conceded that no right is, or can be absolute and that between two conflicting rights, society must decide which one must prevail, unless the two can be harmonized."1
Somewhat towards the end of the article, when dealing with the specific question whether the privilege should be absolute or whether the Judge should have a discretion, Shri Sahai has expressed the following further views:
"The point has already been made that no right is absolute and the journalists' right to confidentiality need not be absolute either. In such cases in which the interests of society overwhelm the rights of journalists, a court may compel disclosure. However, this must be done in camera and only the High Courts and the Supreme Court should have the right to compel disclosure. Some journalists still may want to withhold information, but if their conviction be so strong they must be prepared to take the consequences."2
Mr. Eduardo Faleiro, M.P., Goa does not favour absolute immunity. "Whilst the principle of confidentiality of sources of information may be recognised there must be an exception to this principle involving the considerations of public interest and promotion and advancement of justice."3
It is the view of one Registrar of a High Court (personal view) that the court should have the discretion to allow or reject the request:
"No Court may require a journalist to disclose the source of information contained in the publication unless it is 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."4
The views of the Manipur Bar Association, District and Sessions Court Compound, Imphal have been thus communicated5:
"Just as the legal professionals are given the statutory privilege of not disclosing what their clients have entrusted with them confidentially, the Journalists as a professional class should be given some qualified privilege by suitable enactment. The Journalists should not be compelled to disclose the source of his information or the identity of their conferment as well as confidential communication, unless the disclosure is necessary in the interests of justice and public good."
1. Shri Sahai, The Statesman, 7th April, 1983.
2. Shri Sahai, The Statesman, 7th April, 1983.
3. Law Commission File No. F.2(2)/83-L.C., S. No. 10.
4. Law Commission File No. F.2(2)/83-L.C., S. No. 12.
5. Law Commission File No. F.2(2)/83-L.C., S. No. 17.