Report No. 185
Section 132A as proposed in the 69th Report:
The 69th Report recommended the insertion of Section 132A dealing with privilege of family counsellors. It was stated that the privilege belongs to the family counsellor and this privilege has to be created in the interest of society, so that the family counsellor can function effectively. In para 71.10, it was proposed that the privilege should apply to counsellors appointed by the court and not to those counsellors who are appointed by parties.
Since the 69th Report, we have now the Arbitration and Conciliation Act, 1996. Part III deals with Conciliation (ss. 61 to 81). Four Sections of this Act are relevant. One is Section 70 (Disclosure of Information); Section 75 (Confidentiality); Section 80 (Conciliator as witness); Section 81 (Admissibility of evidence in other proceedings).
Section 70 reads as follows: 'Disclosure of information': "When the conciliator receives factual information concerning the dispute from a party, he shall disclose the substance of that information to the other party in order that the other party may have the opportunity to present any explanation which he considers appropriate: Provided that when a party gives any information to the conciliator subject to a specific condition that it be kept confidential, the conciliator shall not disclose that information to the other party".
Section 75 reads as follows: 'Confidentiality': "Notwithstanding anything contained in any other law for the time being in force, the conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings. Confidentiality shall extend also to the settlement 394 agreement, except where its disclosure is necessary for purposes of implementation and enforcement".
Section 80: 'Role of conciliator in other proceedings' reads as follows: "Unless otherwise agreed by the parties, (a) the conciliator shall not act as an arbitrator or as a representative or counsel of a party in any arbitral or judicial proceeding in respect of a dispute that is the subject of the conciliation proceedings; (b) the conciliator shall not be presented by the parties as a witness in any arbitral or judicial proceedings".
Section 81: Admissibility of evidence in other proceedings: "The parties shall not rely on or introduce as evidence in arbitral or judicial proceedings, whether or not such proceedings relate to the dispute that is the subject of the conciliation proceedings.-
(a) views expressed or suggestions made by the other party in respect of a possible settlement of the dispute;
(b) admissions made by the other party in the course of the conciliation proceedings; (c) proposals made by the conciliator; (d) the fact that the other party had indicated his willingness to accept a proposal for settlement made by the conciliator."
Section 61(1) applies Part III to conciliation of disputes arising out of legal relationships whether contractual or not and to all proceedings relating thereto. It must, however, be noted that Section 61(2) says that this Part (Part III) shall not apply where, by virtue of any law for the time being in force, certain disputes may not be submitted to conciliation.
Under Section 62, conciliation commences when the other party accepts in writing the invitation to conciliation. Section 64 deals with appointment by parties. It does not speak of appointment by court, in the absence of agreement between parties as in the case of arbitration.
In the view of the Commission, a conciliator under the 1996 Act includes one who conciliates matrimonial disputes also and in view of the elaborate provisions made in the Act, it is not necessary to enact a separate provision in the Evidence Act. We, therefore, think that the recommendations in para 71.12 for insertion of Section 132A as proposed need not be given effect to.
So far as mediators are concerned, the High Courts can make rules under Section 89(d)(2) of the Code of Civil Procedure, 1908 and in those rules a provision can be made as to privilege of mediators.
Section 132A as proposed in this Report:
In the place of Section 132A (privilege of family counsellors), as proposed in the 69th Report, we are of the view that it is necessary to make a specific provision in relation to journalists' resources.
In this context, we have perused the 93rd Report of the Law Commission (1983) on "Disclosure of source of information by mass media".
The above issue came into serious focus during the recent enactment of Prevention of Terrorism Act, 2001. Finally, the Government appears to 396 have acceded to the request of journalist groups that the provision be dropped. The dropping of the provision was, in our view, more in the wake of the agitation by the media. But today the law is otherwise. Sources of media have no absolute protection elsewhere. Public interest may require revelation.
Before going into the question of revelation of the source of publication, we shall refer to Section 15(2) of the Press Council Act, 1978, which precludes information being furnished by a newspaper, news agency, editor or journalist to disclose the source of any news or information.
In our view, the above Section does not deal with the power of the Court, for purposes of evidence, to ask a person to reveal the source of publication, in public interest. It is this latter aspect that falls for consideration before us.
In England, in British Steel Corporation v. Granada Television: 1981 AC 1096, the House of Lords approved the view of Denning M.R. in AG v. Mulholland: 1963(2) QB 477 (489) while stating that the clergyman, the bank or the medical man are not entitled to refuse to answer when directed by a judge, it was held that even so, the judge will respect the confidences which each member of these honourable professions receives in the course of it, and will not direct him to answer unless not only it is relevant but also it is proper and, indeed, necessary, to put the question in aid of justice to seek an answer.
A judge is the person entrusted, on behalf of the community, to weigh these conflicting interest.- to weigh on the one hand the respect due to confidence in the profession and on the other hand, the ultimate interest of the community in justice being done. If the judge determines that the journalist must answer, then no privilege will avail him to refuse.
The above decision which dealt with the narrow nature of the journalists' privilege, led to Section 10 of the UK Contempt of Courts Act, 1981 which reads as follows:
"Section 10. 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 is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime."
The court has, therefore, to carry on this balancing exercise.
In Secretary of State for Defence and another v. Guardian Newspapers Ltd., 1984 (3) All ER 601 it was noticed that the nature of the protection under Section 10 of the UK Contempt of Courts Act, 1981 is the removal of compulsion to disclose in judicial proceedings, the identity or source of any information contained in a publication.
Lord Diplock pointed out (see p. 607) that the exceptions include no reference to the 'public interest' generally and that the expression 'justice', the interests of which are entitled to protection, is not used in a general sense as the antonym of 'injustice' but in the technical sense of the administration of justice in the course of legal proceedings in a court of law or by reason of the extended definition of 398 'court' in Section 19 of the 1981 Act, before a tribunal or a body exercising the judicial power of the State.
In that case, a photocopy of memorandum prepared by the Ministry of Defence, concerning the installation of nuclear weapons at a Royal Airforce base and sent to the Prime Minister was 'leaked' by an unknown informant to the defendant newspaper, which subsequently published it. The Crown requested the return of the copy so that it could attempt to identify the informant from the markings made in the document. The newspaper claimed privilege for the markings stating that they may lead to the identification of the informant. The House of Lords, by majority, affirmed the directions given by the courts below for return of the copy.
The prohibition against the court making an order requiring disclosure of the source was subject only to some exceptions, namely, if the disclosure was "necessary" in the interests of justice or national security or for the prevention of disorder or crime. The onus is on the person who seeks disclosure to make out a case of 'necessity'. Lord Diplock approved the view of Griffiths LJ in the Court of Appeal (1984) (1) All ER 453. Griffiths LJ had observed (p. 459):
"The press have always attached the greatest importance to their ability to protect their source of information. If they are not able to do so, they believe that many of their sources would dry up and this would seriously interfere with their effectiveness. It is in the interests of us all that we should have a truly effective press, and it seems to be that Parliament by enacting Section 10 has clearly recognized the importance that attaches to the ability of the press to protect their sources. I can see no harm in giving a wide construction to the opening words of the Section because by the latter part of the Section 399 the court is given ample powers to order the source to be revealed where in the circumstances of a particular case, wider public interest, makes it necessary to do so."
Thus, public interest in the source, was treated as an exception.
In Re an Inquiry under the Company Securities (Insider Dealing) Act, 1985, 1988 (1) All ER 203, (HL), the House of Lords interpreted the word 'necessary' as 'really needed'.
In Goodwin's case, i.e. X Ltd v. Morgan-Grampian (Publishers) Ltd and Others: (1990 (2) All ER p. 1) (known as Goodwin's case) Lord Oliver said that the discretion is exercised by the court only once when it considers whether the disclosure is 'necessary' and there is no further discretion, once that is established, as to whether to direct disclosure or not. Lord Bridge explained Lord Diplock's dictum in Granada Television case by stating that 'interests of justice' does not mean 'administration of justice' but is wider and applies to legal rights of parties and the need to protect those rights by directing disclosure and it was not necessary that there should be legal proceedings pending in a court. Lord Oliver was of the same opinion.
In the above case Morgan-Grampian were publishers and Mr Goodwin was the journalist employed by the publishers, were defendants. The plaintiffs, two private companies, prepared a business plan for negotiating a bank loan and a copy of the draft plan was stolen from the plaintiff and an unidentified source phoned Mr Goodwin giving details of the draft. The journalist telephoned the plaintiffs for checking the facts to prepare an article. The plaintiff sued for injunction and applied for an order requiring the journalist not to disclose the same and to prevent publication. Disclosure was ordered and affirmed by the Court of Appeal and the House of Lords. Lord Bridge observed (p. 9):
"the greater the legitimate public interest in the information which the source has given to the publisher or intended publisher, the greater will be the importance of protecting the source. But another and perhaps more significant factor which will very much affect the importance of protecting the source will be the manner in which the information was itself obtained by the source.
If it appears to the court that the information was obtained legitimately this will enhance the importance of protecting the source. Conversely, if it appears that the information was obtained illegally, this will diminish the importance of protecting the source unless, of course, this factor is counterbalanced by a clear public interest in publication of the information, as in the classic case where the source has acted for the purpose of exposing inequity."
On further appeal in the same case before the European Court of Human Rights (Goodwin v. UK) (1996) 22 EHRR 123, the judgment was reversed and it was observed (p. 143):
"Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of contracting states and is affirmed in several international instruments of journalistic freedoms. Without such protection, sources may be deterred from assisting the press in 401 informing the public on matters of public interest.
As a result, the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected. Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect of an order or source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest."
The European Court held that the injunction against publication of the information was sufficient protection. There was no need to direct disclosure of the source of information inasmuch as under Article 10(2) of the Convention the freedom of press could be restricted if it was 'necessary' in a democratic society. The requirement of 'necessity' requires an inquiry if there was a 'pressing social need' for the restriction and, in making their assessment, the national authority have a certain 'margin of appreciation'.
In the present context, however, the national margin of appreciation is circumscribed by the interest of democratic society in answering and maintaining a free press. Similarly, that interest will weigh heavily in the balance in determining, as must be done under Article 10(2), whether the restriction was "proportionate" to the legitimate aim pursued. In sum, limitations on the confidentiality of journalistic resources call for the most careful scrutiny by the Court.
The Court's task is not to take the place of the national authorities (we may add, as it is done in the case of Wednesbury rules applicable to cases other than fundamental rights) but rather to review under Article 10 of the decision they have taken pursuant to their power of 402 appreciation. In so doing, the Court must look at the interference complained of in the light of the case as a whole and determine whether the reasons adduced by the national authority to justify it are 'relevant and sufficient'. (This is what we may recall is the proportionality exercise).
The fact that the plaintiff would not be able to stop such further dissemination of the contents of the plan or for recovery of the missing copy of the document is not a relevant ground consistent with freedom of the press in a democratic society requiring revelation of the source in public interest. That was not sufficient to 'outweigh the public interest' in the protection of the applicant's journalistic source. There was no "reasonable relationship of proportionality between the legitimate aim pursued by the disclosure order and the means employed to achieve that aim".
The judgment of the European Court in Goodwin's case came up for consideration in Saunders v. Punch Ltd., 1998 (1) ALL ER 234 before Lindsay J. The defendant published an article referring to meetings between the plaintiff and former solicitors. Plaintiff obtained injunction against further publication. Plaintiff wanted a disclosure of the source of information and question was whether the legal professional privilege which was absolute in the sense that it was not amenable to a balancing exercise by the Court, could be overridden by the journalistic privilege, which was subject to the balancing discretion of the Court.
The Court while rejecting the request for revelation referred to Goodwin's case which went up to the European Court, held that the injunction granted against future publication would provide the plaintiff with a high degree of protection in respect of privileged communications in future and it was unlikely that the plaintiff would suffer if the directive to reveal the source was refused.
Although 403 legal professional privilege was extremely important in the administration of justice, the need to protect or enforce it was not such that it had inevitably and always to preponderate in the balancing exercise which the Court was required to carrying out in determining whether disclosure of a source of information was necessary in the interests of justice. Here, in fact, the interests of justice were not so pressing as to require the bar on disclosure to be overridden.
Though the House of Lords had held in R v. Derby Magistrate's Court exp. B 1995 (4) ALL ER 526 (see our discussion under Section 126) that the privilege regarding communication between a lawyer and his client was however absolute and was not subject to a balancing exercise by the Court, stIllustration on a careful weighing up of the conflicting public interest, a case for disclosing the source of information was not made out. But, the privilege of the journalist is not absolute as regards the sources of his news.
We are aware that in several countries across the world, journalistic sources are protected when public interest in the context of the information is not in dispute, if sources have to be disclosed in such cases, then none would confide such valuable information with the media and there would be greater damage to public interest if all such important information dries up.
While referring to the above case law, Phipson (15th Ed, 1999, para 24.25, 24.26) states as follows:
"There is therefore statutory protection for the sources of a journalist and the Court must carry out a balancing act required under Section 10 (of the Contempt of Court Act, 1981) before ordering disclosure."
We shall now refer to the position in some other countries.
In the USA, it was held in 1937 in Associated Press v. N.L.R.B. (1937) 301 US 103 that
"The business of the Associated Press is not immune from regulation because it is an agency of the Press. The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others. He must answer for libel. He may be punished for contempt of Court. He is subject to the anti-trust laws. Like others, he must pay equitable and non-discriminatory taxes on his business."
In Branzburg v. Hayes: (1972) 408 US 665, the question arose whether a journalist could be subpoenaed by a grand jury to disclose the identity of two hashish makers. The news item had carried a story in the name of the journalist about two young residents of the Jefferson county synthesizing hashish from marihuana, an activity which, they asserted earned them about $ 5,000 in three weeks. The US Supreme Court held that information concerned a crime and no privilege attached to the information. In that context, the Court referred to Associated Press v. NLRB and reiterated that a journalist was like any other witness and had no special protection. White J observed:
"The use of confidential sources by the press is not forbidden or restricted; reporters remain free to seek news from any source by means within the law. No attempt is made to require the press to 405 publish its sources of information or indiscriminately to disclose them on request.....
It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability. It was there held (Associated Press), a news-gathering and disseminating organization, was not exempt from the requirements of the National Labour Relations Act. "the right to speak and publish does not carry with it the unrestricted right to gather information".
It is thus not surprising that the great weight of authority is that newsmen are not exempt from the normal duty of appearing before a grand jury and answering questions relevant to a criminal investigation. At common law, Courts consistently refused to recognize the existence of any privilege authorizing a newsman to refuse to reveal confidential information to a grand jury.
The grand jury's authority to subpoena witnesses is not only historic, but essential to its task. Although the powers of the grand jury are not unlimited and are subject to the supervision of a judge, the long standing principle that "the public has a right to every man's evidence", except for those persons protected by a constitutional, common law, or statutory privilege, is particularly applicable to grand jury proceedings.
A number of States have provided newsmen a statutory privilege of varying breadth, but the majority have not done so, and none has been 406 provided by federal statute. Until now, the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination.
We are asked to create another by interpreting the First amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do. Fair and effective law enforcement aimed at providing security for the person and property of the individual is a fundamental function of government, and the grand jury plays an important, constitutionally mandated role in this process."
He held that 'public interest' in law enforcement required that the journalist comes before the grand jury. It was argued that informants may "refuse to talk to newsman if they fear identification by a reporter in an official investigation". The Court held that it could 'not accept the argument that the public interest in possible future news about crime from undisclosed, unverified sources must take precedence over the public interest in pursuing and prosecuting those crimes reported to the Press by informants and is thus deterring the commission of such crimes in future."
The next case is the one in Zurcher v. Stanford Daily (1978) 436 US 547. There was a violent incident between a group of demonstrators and police and several police officers were injured. A special edition of Stanford Daily carried articles and photographs in regard to the violent clash. A warrant was obtained by the District Attorney's Office from the Municipal Court for an immediate search of the Daily's office for negatives, film and pictures showing the events and occurrences.
Of course, the affidavit in support of the search did not make any allegation of involvement of the 407 press photographer or other staff of the Daily. If the Magistrate had been specific about the place and had taken a reasonable decision to permit the search, there is no occasion or opportunity for officers to rummage at large or intrude into or deter normal editorial and publication decisions. White J observed:
"Nor are we convinced, any more than we were in Branzburg v. Hayes, 408 US 665 (1972) that confidential sources will disappear and that the press will suppress news because of fears of warranted searches..............................
We note finally that if the evidence sought by warrant is sufficiently connected with the crime to satisfy the probable-cause requirement, it will very likely be sufficiently relevant to justify a subpoena and to withstand a motion to quash."
It will be noted that both Branzburgand Zurcher related to information about crimes.
In Cohen v. Cowles Media Co. (1991) 501. US 663, the point arose in a case of libel. Cohen who was associated with one party's political campaign, gave Court records concerning another party's candidate for Lt. Governorship, to reporters after receiving a promise of confidentiality. The Court records showed that the candidate was earlier charged with three counts of unlawful assembly and one was convicted in a case of theft (later vacated).
The newspaper's editorial staff did not keep the promise but published Cohen's name, Cohen was then fired from his job. He sued the 408 journalist for breach of a promise. White J for the Court held that the First Amendment did not bar a cause of action and reversed the State Supreme Court and restored the judgment of the first Court. It was held that, it was permissible for the State to apply a law of general applicability such as a law of promissory estoppel and that does not target or single out the press. The matter was remanded and later, the Minnesota Supreme Court awarded $ 200,000 as damages.
After Zurcher in 1978, Congress responded by enacting the Privacy Protection Act of 1980 (codified as 42. U.S. CA Section 2000 aa to 2000 aa- 12). The Act applies to any government officer or employee, State or Federal. Such person, in connection with the investigation or prosecution of a criminal offence, may not search or seize any work product (i.e. materials, including mental impressions, prepared in anticipation of communicating such materials to the public, other than materials that are the fruits or instrumentalities of the crime) if such materials are possessed by a person reasonably believed to have a purpose to disseminate to the public by a public communication (such as newspaper, book, or broadcast) that is in, or affecting, interstate or foreign commerce.
These restrictions, on seizure power, the Act said, were not applicable if the materials relate to 'national defence, classified information or restricted data', or if there is reason to believe that immediate seizure is necessary to prevent death or serious bodily injury'. Similar restrictions apply to search or seizure of documentary materials (i.e. materials upon which information is recorded, such as written or printed materials or photographs, but excluding the fruits or instrumentalities of a crime, possession by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast or similar form of public communication affecting interstate or foreign commerce.
These restrictions are also subject to certain exceptions. For example, the seizure of documentary materials is usually not prohibited if there is reasonable cause to believe that the person possessing the materials has committed or is committing a criminal offence to which the materials relate, or immediate seizure is necessary to prevent death or serious bodily harm, or giving notice would result in destruction, alteration or concealment of materials. This portion of the Act also does not apply to national defence, classified information, or restricted data. The entire Act is not applicable to border searches.
A person subjected to search or seizure, which is unlawful under the Act, has a civil cause of action for damages against the United States or a State (if the latter has waived its sovereign immunity under the Constitution) and against the State employee or officer (if the State has not waived its sovereign immunity). The damages shall be actual damages but not less than liquidated damages of $ 1000 plus reasonable attorney's fees at cost.
We may refer to some more literature from the international scene. Art 19 of the Universal Declaration of the Human Rights states as follows:
"Article 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers."
The International Covenant on Civil and Political Rights (1966)(ICCPR) states in para 2 of Article 19(1) as follows:
"Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice."
The right may be subject to certain reasonable restrictions as stated in Article 19(3) of the ICCPR.
"The exercise of the rights provided for in paragraph 2 of this Article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) for respect of the rights or reputations of others; (b) for the protection of national security or of public order (ordre public) or of public health or morals."
This right is also incorporated in the European Convention for the Protection of Human Rights and Fundamental Freedoms and the American Convention on Human Rights, 1979.
In Vol. 20, Human Rights Quarterly (1998), in an Article on "Johannesburg Principles on National Security, Freedom of Expression and Access to Information ( p 1 to 80), the position of law in various countries as 411 to 'Journalists' sources is considered at pp 68-70, in the Context of Principle 18, as follows (p. 68)
"Principle 18 states that protection of national security may not be used as a reason to compel a journalist to reveal a confidential source. This Principle reflects the law of Australia and France, and the reasoning of Norway's Supreme Court. Courts of several countries, as well as the European Court of Human Rights, have recognized the crucial need for the press to be able to protect the confidentiality of its sources if it is to fulfil effectively its public function as a watchdog of government.
In Austria and France, a journalist may not be compelled to reveal the source of information, even concerning matters relevant to national or state security, if the information was received in confidence in the course of his or her journalistic activity (Press Law and Practice: A Comparative Study of Press Freedom in Europe and other democracies; Walter Burke (Austria) and Roger Errere (France) para 19) (French Code of Crl. Procedure amended by Act 94 Jan 1993 reads: Any journalist who appears as a witness concerning information gathered by him in the course of journalistic activity is free not disclose its source).
The Supreme Court of Norway established the principle that "the more important the interest violated, the more important it will be to protect the sources." (Kontrolluvalget v. Johansan 1992 (1) L.N. R 39.................................. In Germany, Sweden and the majority of States of the United States, a journalist may not be compelled to reveal the source of information concerning matters relevant to national or state security unless publication of the information actually harmed a legitimate security interest, the party seeking the information convincingly establishes that the identity of the source is necessary to prove a central claim in a court proceeding, and there is no alternative way to obtain the necessary information.
This right to refuse in turn provides considerable protection for public sector employees who 'blow the whistle' on governmental misconduct.
Germany's Constitutional Court (FCC) reasoned that the Basic Law's constitutional guarantee of press freedom permits journalists to protect confidential sources if the interest in promoting press freedom is found to outweigh the interest in the enforcement of justice (see 64 FCC 108 (1983)). The constitutional right to protect confidential sources is interested primarily to protect the role of a free press in controlling government abuse.
The Sapporo District Court of Japan, sustained by the appellate Courts, held that journalists may refuse to divulge, even to a Court, information about a source as "an occupational secret" unless the information is necessary for a fair trial 30 Minsh 403 (Sup Ct 8 Man 1980). The High Court of Lagos State (Nigeria) ruled that protection of the journalistic privilege must be all the stronger where the published information concerns a matter of general public interest (Oyegbemi v. Att.Gen of the Federation and Others: (1982) FNL R 192."
The Article on Human Rights Quarterly then refers to the passage already quoted by us from Goodwin v. UK (1996(2) Rep. Judgement & Decisions 483, 505) that the source cannot be directed to be disclosed "unless it is justified by an overriding requirement in the public interest".
In the light of the privilege accepted across the world in several countries, we are of the view that, a provision must be included in our Evidence Act also.
Indian Courts have taken note of the development of law in UK and US. In Re Resident Editor & Ors of the Hindustan Times: 1989 PLJR 821 (Pat) a Division Bench of the Patna High Court, after referring to Maxwell v. Pressdram Ltd, 1987 (1) WLR 298 and Branzburg v. Hayes: (1972) 408 US 665 observed as follows:
"The position of the press freedom to publish news, information or views in India is thus no better than the position of newsman either in United Kingdom or United States. They may be called upon in a Court of Law to depose and answer all questions, including disclosure of the source, if the source is involved in committing any offence or its knowledge is relevant to any issue involved in the proceeding in the Court. A Court, however, shall not ordinarily compel a newsman to disclose its source because a free flow of information also is a cause of the public and it is always in public interest to protect it by extending immunity to pressmen to preserve the confidentiality of the source.
It wIllustration however, be only in the cases where the interests of justice would demand disclosure of the source, the Court shall be within its right to command a newsman to be a witness in a proceeding before it and answer all the questions including the question as to the identity of the source, and the newsman in such a case shall be obliged to answer all such questions. His refusal to answer any such question shall be a cause of action against him for violating the rule of law.
The Court shall, however, always take notice of the aforementioned public interest of free flow of information and any other public interest that may be pleaded by the newsman before it, but if there is no public interest outweighing the interest of administration of justice or there is no public interest at all to be pleaded to maintain confidentiality of the disclosure of the source, the newsman wIllustration disclose the source."
Sri Samaradiya Pal in his Commentary on the Contempt of Courts Act, 1971 (2nd Ed, 1996 at p. 90) quotes McNae's Essential Law for Journalists (10th Ed, p. 158) to the following effect: "it is a matter of professional principle that a Reporter does not reveal his source of information. The journalist's job is to discover and record news. Wherever he looks, he wIllustration find people with vested interests trying to prevent him from doing so.
For this reason, to get his story, he must often rely on information passed to him by people who would be injured if it became known that 'they had done so'." Sri Pal says that at common law, judges had a discretion to order a person who has received certain types of information to disclose the name of his source and a failure to comply with such an order, could result in committal (The Legal Implications of Disclosure in the Public Interest by Yuonre Crippl, 2nd Ed, p. 254).
As far as journalists are concerned, the nondisclosure argument has failed when such disclosure was considered necessary in the interest of national security (AG v. Mulholland: 1963 (2) QB 477; AG v. Clough, 1963 (1) QB 773). The author then refers to British Steel Corporation v. Granada Television Ltd., 1980 (3) WLR 774 to say that while there is no immunity against disclosure of source of information, the Court may feel public interest requires in refusing discovery.
A similar case arose in the Delhi High Court in "Court on its own motion" v. The Pioneer: Vol 68 (1997) Delhi Law Times 529. There the journalist who published a news item criticizing the judiciary was issued a contempt notice. The High Court directed him to reveal the source of the information. Information was then revealed that the news item was based upon an interview with a senior Delhi Government functionary.
The apology filed was accepted. In the course of the judgment, the High Court referred to Grenada TV and to Section 10 of (UK) Contempts of Courts Act, 1981 and held that the court has power to direct disclosure of the source of information, when considered necessary in the interests of justice.
Summarising the position, it is clear that initially at common law, there was no special privilege in favour of journalists enabling them not to disclose their sources. But, in 1963, Lord Denning in AG's v. Mulholand: 1963 (2) QB 477 laid down that the journalist's source can be confidential, like those of clergyman, banker or medical men but the privilege is subject to the power of the court. The Judge will respect the confidence but if the Judge thinks that such information is necessary in the interests of justice, he will weigh the conflicting interests keeping the interests of the community and in justice being done.
This view was accepted by the House of Lords in British Steel Corporation v. Granade Television: 1981 AC 1096. This led to a statutory recognition of the principle to Section 10 of the (UK) Contempt of Courts Act, 1981 in Section 10 of that Act, under which the courts can direct disclosure "in the interests of justice or national security or for the prevention of crime".
The above provision came to be interpreted by the House of Lords in The Secretary of State for Defence and another v. Guardian Newspaper Ltd: 1984 (3) ALL ER 60 and in Re an Inquiry under Company Security (Inside Dealing) Act, 1985, 1988 (1) ALL ER 203 (HC) and in X Ltd v. Morgan-Grampion Publishers 1990 (2) ALL ER page 1.
The last case went up to the Europe Court in Goodwin v. UK 1996, 22. EHRR 123 where while holding that the right of the Press not to disclose its source is a right which has to be protected under the European Convention, it was held to be subject to disclosure if ordered by the court in 'public interest'. Goodwin's case has been followed later in UK in 1998.
In the USA also, the right of the Press to keep the source secret is not absolute under the First Amendment but is subject to the power of the court to direct disclosure in the interests of criminal investigation or before the Grand Jury, security of person and property, and public interest. The Congress enacted the Privacy Protection Act, 1980, which contains certain exceptions like national defence etc. This is also the law in Japan, Germany and Sweden and in a majority of States in USA.
The Patna and Delhi High Courts, as mentioned above, have also held that while the privilege is there, it is subject to the power of the court to direct disclosure in the interests of justice, public order etc.
In the 173rd Report on Prevention of Terrorism BIllustration 2000 the Commission referred to Article 19(1)(a) and observed that the Supreme Court has repeatedly held that the rights and privileges of the Press are no greater than that of any of the citizens of India and that even in UK and the USA, no immunity in favour of journalists/Press is recognized and a passage from D.D. Basu's Commentary on 'Law of the Press' (3rd Ed) (1996) was quoted to the following effect:
"The same view, as in UK, has been arrived at by the American Supreme Court, recently, holding that the guarantee of freedom of the Press does not immunize the Press to render assistance to the investigation of crimes which obligation lies on every citizen. They are, accordingly, bound to disclose the information gathered by journalists, with their sources, even though such information may have been obtained under an agreement not to disclose, provided such information is relevant to the investigation, in a particular case, and they are not compelled to disclose more than is necessary for such purpose."
There is another passage which requires to be quoted from Basu's book.
We find that the passage extracted above is preceded in Basu's book where a reference is made to the four exceptions in Section 10 of the UK Contempt of Courts Act, 1981 in British Steel Corpn v. Granada Television (1981) 1 ALL ER 417 which led to the passing of that Act and to Section of State v. Guardian Newspapers: 1984 (3) ALL ER 601. It is however clear that the judgment of the European Court and subsequent case law show that there are exceptions to the privilege.
In the Prevention of Terrorism Ordinance, 2001, in Section 3(8) it was stated that all persons receiving or in possession of information which he knows or believes to be of material assistance in prevention of terrorists acts etc., will be permissible if he withholds the information without reasonable cause. But the proviso to Section 3(8) exempted the cases of legal practitioner of the accused.
When the Ordinance was substituted by the Prevention of Terrorists Act, 2002 later, Section 3(8) was altogether dropped mainly on account of the representation of journalists. But, we wish to make the legal position clear that, in law, there is no absolute privilege in regard to a journalist's sources and if public interest or interests of justice require, he can be compelled to disclose the source. The privilege of the journalist is not absolute as in the case of a lawyer.
In the 93rd Report already referred to, the Commission stated in Chapter IX (page 34) that the privilege of the journalist is not absolute and the Court must have discretion and the matter must be elastic. The Commission, however, said that they are not recognizing any privilege. When they formulated Section 132A, they did not refer to any discretion vested in the Court to direct revelation of the source of publication. We, however, think that there should be a specific provision for revelation in public interest, for the various purposes, which we will mention in the proposed Section.
In the light of the above discussion, we recommend the insertion of Section 132A as follows:
"132A. Disclosure of source of information contained in publication.- (1) No Court shall require a person to disclose the source of information contained in a publication for which he is responsible, unless it is established to the satisfaction of the Court that such disclosure is necessary in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to Contempt of Court or incitement to any offence.
Explanation.- For the purposes of this sub-Section,
(a) 'publication' means any speech, writing, symbols or other representation disseminated through any medium of communication including through electronic media in whatever form, which is addressed to the public at large or to any Section of the public.
(b) "source" means the person from whom, or the means through which, the information was obtained.
(2) The Court while requiring any person to disclose the source of information under subSection (1), shall assess the necessity for such disclosure of the source as against the right of the journalist not to disclose the source."
Section 132B (as proposed in the 69th Report) and also Section 132C (as proposed in this report) :
In Section 72, it was recommended that there should be a separate provision dealing with the privilege of 'patent agents' governed by the provisions of secs. 126, 127 of the Patents Act, 1970. By virtue of these provisions, a patent agent can practice not only in the High Court but also before the Controller-General of Patents, Designs and Trade Marks referred to in Section 73 of the Patents Act.
A patent agent can prepare all documents, transact all business and discharge other functions prescribed in connection with proceedings before the Controller. Section 126 of the Patents Act refers to a Register of Patent Agents. The functions of a patent agent are analogous to those of professional legal advisers. In the 69th Report, reference was made (see para 72.2) to the UK Civil Evidence Act, 1968 which dealt with the "privilege for certain communications relating to patent proceedings".
The position now in UK is governed by the (UK) Copyright, Designs and Patents Act, 1988. The said Act refers to the privilege in communication with not only 'patent agents' but also with 'trademark agents'. Section 280 of that Act refers to the patent-agent communications and precludes from disclosure "any matter relating to the protection of any invention, design, technical information, trademark, or service mark, or as to any matter involving passing off". Section 284 refers to privilege communications with trademark agents relating to "the protection of any designs trademark or service mark or as to any matter involving passing off".
The India Trade Marks Act, 1958 speaks of 'trademark' agents in Section 123. Though the 69th Report referred only to the privilege concerning 421 'patent agents', in the light of the UK provision of 1988, we are of the view that there should be two separate provisions, Section 132B for 'patent agents' and Section 132C for 'trademark agents'.
The privilege attaches only to the extent covered by the proposed statute. It does not protect anything done outside the proposed Section 132B and 132C. This is clear from English cases. Outside the statute, it was held that patent agents have no protection (Wilden Pump Engineering Co. v. Fusfeld: 1985 FSR 159; nor for trade mark agents: Dormeuil Trade Mark (1983) RPC 132.
Section 132B as drafted in the 69th Report of 1977 was based upon Section 15 of the (UK) Civil Evidence Act, 1968 (see para 72.5). But, in the light of secs. 280 and 284 of the (UK) Copyright Designs and Patent Act, 1988, we propose to redraft Section 132B, so far as patent-agents are concerned on the lines of Section 280 and recommend a further provision as Section 132C, so far as trademark agents are concerned.
In this connection, one has also to note that under our Patents (Amendment) Act, 2002 (38 of 2002), an 'Appellate Board' has been constituted under Section 116 and Section 2 states that for the words 'High Court' wherever they occur in secs. 21, 43 and 71, the word 'Appellate Board' and for the word 'Court' occurring in secs. 21 and 71, the word 'Board' shall be substituted. (The word 'Court' is the same as 'High Court' and the word 'Board' is the same as the 'High Court').
From the provisions of Section 2 (n) in the Principal Act, 1970 as introduced by Section 3(i) of the Act of 2002, where the word 'prescribed' is used, it is clear that there can still be some 422 role for the High Court. Section 125 of the Principal Act, 1970 as substituted by Section 52 of the Act of 2002, refers to the 'Register of Patents'. In Section 130 of the Principal Act, 1970 for the words 'Central Government', the word 'Controller' is substituted by Section 55 of the Act of 2002.
We shall first refer to certain differences between Section 15 of the (UK) Civil Evidence Act, 1968 and Section 280 of the (UK) Copyright Designs and Patents Act, 1988. The provision of Section 15(1) referred to therein, mentioned that communications will be protected before the Comptroller or Appellate Tribunal, while Section 15(2) refers to legal proceedings (other than criminal proceedings) and states that the privilege will be the same as between a solicitor and party in the High Court. SubSection (4) defined 'Controller', 'Patent Agent' and 'party'.
Section 280(1) of the (UK) Act of 1988 which applies to 'patent agents' refers to protection of communications in relation to 'invention, design, technical information, trademark or service mark or as to any matter involving passing off'. SubSection (2) refers to the communication being privileged in legal proceedings in England in the same way as between a person and solicitor. SubSection (3) defined 'patent agent' and subSection (4) refers to legal proceedings in Scotland. In other words, the use of the word 'legal proceedings' takes in proceedings before various bodies, which are not enumerated.
Further, the privilege under the 1988 Act does not exclude criminal proceedings. Obviously, because of the provision in the European Convention regarding the right against self-incrimination, the privilege is extended to criminal proceedings also (see Phipson para 20.12, 1999, 15 Ed). In the 69th Report, Section 132B as proposed extended the 423 privilege to criminal proceedings also. We too extend the privilege to criminal proceedings also in view of Article 20(3) of the Constitution (see para 72.5). Similar language is adopted in Section 284 which deals with privilege of 'trademark agents'.
We propose to adopt the format in the UK Act of 1988. The provision regarding privilege of 'patent agents' and 'trade mark agents' should be as follows:
"132B Communication with patent agents.- (1) Any communication as to any matter relating to the protection of any patent or as to any matter involving passing off.-
(a) between a party and his patent agent, or
(b) for the purpose of obtaining, or in response to a request for information which a party is seeking for the purpose of instructing his patent agent, is privileged from disclosure in legal proceedings in the same way as a communication between a client and his legal practitioner or, as the case may be, a communication for the purpose of obtaining, or in response to a request for, information which a client seeks for the purpose of instructing his legal practitioner.
(2) For the purposes of subSection (1.-
(a) 'patent agent' means
(i) a patent agent registered as a patent agent in the register of patent agents maintained pursuant to the provisions of the Patent Act, 1970, or
(ii) a partnership entitled to describe itself as a firm of patent agent;or
(iii) a body corporate entitled to describe itself as a patent agent.
(b) 'party' in relation to any contemplated proceedings, means a prospective party thereto.
(c) 'legal practitioner' means a person as defined in Explanation 2 of Section 126.
132C. Communication with Trademark Agent(1) Any communication, as to any matter relating to the protection of any trademark or as to any matter involving passing off.-
(a) between a party and his trademark agent; or
(b) for the purpose of obtaining, or in response to a request for information which a party is seeking for the purpose of instructing his trademark agent, is privileged from disclosure in legal proceedings in the same way as a communication between a client and his legal practitioner or, as the case may be, a communication for the purpose of obtaining, or in response to a request for, information which a client seeks for the purpose of instructing his legal practitioner.
(2) For the purposes of subSection (1)-
(a) 'trademark agent' means
(i) a trademark agent as defined under Section 145 of the Trade Marks Act, 1999;
(ii) a partnership entitled to describe itself as a firm of registered trademark agents, or
(iii) a body corporate entitled to describe itself as a registered trademark agent.
(b) 'party' in relation to any contemplated proceedings means a prospective party thereto.
(c)'legal practitioner' shall have the same meaning assigned to it in Explanation 2 of Section 126."