FREEDOM OF SPEECH AND EXPRESSION VIS-À-VIS JOURNALISM

“There is freedom of speech, but I cannot guarantee freedom after speech”[1] This quote perfectly fits in when Indian version of protection of journalist or their sources is argued. Journalist privilege is not recognized in Indian laws. The only law regarding evidence in press which is related to journalistic sources is Press Council Act, 1978.[2] The Law Commission of India in its 93rd report, (1983) suggested the addition of Section 132A to the Indian Evidence Act. It read as follows:

No court shall require a person to disclose the source 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.[3]

The term journalist has not been defined in Indian laws and a broad consideration for this term is dangerous, looking at the social media and internet developments. Therefore the lawmakers need to define the scope first and then go to the second step to determine whether to give an absolute privilege or not. Section 15[4] of the Press Council Act provides that the Council cannot compel any newspaper, news agency, editor or journalist to disclose the sources. But this right can only be claimed in proceedings in front of Press Council and therefore, predominantly, no right is available to protect their sources.[5] Also, the Whistle blowers Act 2011 provides for some sort of protection but no specific protection to journalistic sources has been provided anywhere. There is no clear ‘all purpose’ answer when the case of confidentiality contradicts national interest as it depends on case-by-case basis.[6] And therefore it depends on the Court whether it seems fit to necessitate disclosure of source or not.[7]

But when the Apex Court of the country considers the freedom regarding speech and not only considers the right of speaker but also the right of listeners or readers to receive information. And that “free press is a condition for a free society.”[8] If at all India decides to provide an effective remedy to journalists and their sources then the Act so formed has to be in accordance in good democratic practice and also should provide, and not limited to, the classification of Journalists, their sources, authorities, and information categories with sufficient legal basis, statutory recognition and complying with international laws while administering restrictions.

The argument from the political parties is that Indian media is not high on morals.[9] The protection provides an escape from the general precept that everyone has to give evidence as it is their legal obligation and therefore the parties are not willing to codify this freedom.[10] In one case, Jai Prakash[11], the Delhi High Court directed the journalists to unveil their sources for a story claiming that a judicial decision in an election petition was fixed[12]. In the absence of guidelines or any recommendation provided by any landmark judgment, the only desperate remedy is Article 19(1) of the Indian Constitution which provides for freedom to speech and expression.[13] The right to receive information prohibits the government from restricting a person from receiving information, intrinsically.[14] The fear of coercion and not getting any help from Courts and legislation will only discourage their journalism ethics and thereby might create disparaging situations for functioning democracy.


[1]               Idi Amin, President of Uganda, http://www.azquotes.com/author/350-Idi_Amin.

[2]               N.N., Do we need a privileged status for journalist’s sources,                      http://www.lawinfowire.com/articleinfo/do-  we-need-privileged-status-journalists-sources,(last       accessed on 22/05/ 2018).

[3]               Law Commission of India, http://lawcommissionofindia.nic.in/51-100/Report93.pdf, (last accessed on       12/05/ 2018).

[4]               Section 15(2) reads as follows: “Nothing in sub-section (1) shall be deemed to compel any newspaper,          news agency, editor or journalist to disclose the source of any news or information published by that     newspaper or received or reported by that news agency, editor or journalist.”.

[5]               N.N., Protection of Sources, http://www.thehoot.org/resources/press-laws-guide/protection-of-sources-          6295, (last accessed on 14/05/ 2018).

[6]               Mitta, No legal cover for journalists refusing to divulge source,                 https://timesofindia.indiatimes.com/india/No-legal-cover-for-journalists-refusing-to-divulge-  source/articleshow/12499518.cms, (last accessed on 28/05/ 2018).

[7]               N.N., Protection of Sources, http://www.thehoot.org/resources/press-laws-guide/protection-of-sources-          6295, (last accessed on 14/05/ 2018).

[8]               Bhatia, Free Speech and Source Protection for Journalists, https://cis-india.org/internet-    governance/blog/free-speech-and-source-protection-for-journalists, (last accessed on 20/05/ 2018).

[9]               Bafna, A Legal Take on Protecting a Journalist’s Secret Source, http://www.pocketlawyer.com/blog/a-         legal-take-on-protecting-a-journalists-secret-source/, (last accessed on 27/05/ 2018).

[10]             Mitta, No legal cover for journalists refusing to divulge source,                                 https://timesofindia.indiatimes.com/india/No-legal-cover-for-journalists-refusing-to-divulge-             source/articleshow/12499518.cms, (last accessed on 28/05/ 2018).

[11]             30 (1986) DLT 21.

[12]             Bafna, A Legal Take on Protecting a Journalist’s Secret Source, http://www.pocketlawyer.com/blog/a-         legal-take-on-protecting-a-journalists-secret-source/, (last accessed on 27/05/ 2018).

[13]             N.N., Protection of Sources, http://www.thehoot.org/resources/press-laws-guide/protection-of-sources-          6295, (last accessed on 14/05/ 2018).

[14]             Lester, in:Macdonald/Matscher/Petzold (eds.), p. 465, 481.

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