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Report No. 93

9.5. Status of the protection.-

This brings us to the most important question concerned with the status of the proposed protection. A number of alternatives fall to be considered in this respect, namely:-

(i) an absolute privilege against disclosure may be conferred; or

(ii) the court (or other body adjudicating the controversy) before which protection is claimed may be given a discretion to uphold or reject the request for protection (the decision to be arrived at in each individual case);

(iii) while giving such a discretion, as is mentioned in (ii) above, some criteria may be laid down to guide the exercise of the discretion.

After devoting some thought to the matter, we have come to the conclusion that the matter should be left elastic, by vesting in the court a discretion in the matter, but without going to the length of conferring a privilege as such on any particular class of persons for any class of publications. With a discretion so to be vested in the court, the court can, in each case, balance the need to protect confidentiality of the source of the information (or the information itself, if so decided) against:-

(i) the interest of justice-a general consideration; and

(ii) the demands of national security, prevention of disorder and crime,-considerations which may be relevant in special situations.

To confer an absolute privilege would be a very simple solution, but having regard to the variety of considerations involved and the complexity of the subject-matter, we do not think that a reform of the law on the issue under consideration should be shaped as a "privilege". The disadvantage of conferring an absolute privilege is that it introduces an element of rigidity into the law, which might occasionally cause very serious anomalies. On the other hand, a discretion given to the court on the lines indicated above will leave the matter elastic.

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