Security, Confidentiality and Journalism

A person campaigning for a public interest drive has to keep in mind always national security and national interest since it is above the right to information of citizens. Freedom of press is a part of freedom of speech and expression and as such a fundamental right and it is regarded as “the matter of all other liberties in a democratic society”

However, there are exceptions called privileges. The most famous is the attorney-client privilege that exempts an attorney from testifying against a client about confidential communications. Many states recognize similar privileges for medical doctors, therapists, religious advisors, and spouses. They all stem from the belief that there’s a public interest that justifies the exclusion of testimony by certain people against others.

Journalists have argued that they should have a privilege for roughly analogous reasons. They rely on sources to provide the news they publish, and those sources might not share sensitive or critical information in the absence of anonymity—out of fear that they’ll be punished for sharing it. So, privileges developed protecting journalists, because there’s a public interest in encouraging the disclosure of newsworthy information.

When a law restricting the freedom of speech and expression is not directly against the undermining of the security of the state or the overthrow of it, the law cannot fall within the ambit of reservation under clause (2) of article 19, although the restrictions which it seeks to impose may have been conceived generally in the interest of public order. It follows that section 9 (1-A) which authorizes imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorized restriction under clause (2), and is therefore void and unconstitutional."[3] It is plain that speeches or expressions on the part of an individual which incite to or encourage the commission of violent crimes, such as murder, cannot but be matters which would undermine the security of the state.

As already stated security of the state means ‘the absence of serious and aggravated forms of public disorder’, as distinguished from ordinary breaches of ‘public safety’ or ‘public order’ which may not involve any danger to the state itself. Thus, security of the state is endangered by crimes of violence intended to overthrow the government, levying of war and rebellion against the government, external aggression or war, but not by minor breaches of public order or tranquillity such as unlawful assembly, riot, affray, rash driving, promoting enmity better classes and the like.

In the event of a provision capable of being given two interpretations, one of which makes it constitutional and the other unconstitutional, the interpretation which makes it constitutional should be preferred. The strength of the law is bound to decrease if the very purpose of that law is not fulfilled completely by its provisions per se. In other words, the right to freedom of expression and speech is guaranteed without adequate legal protection to the journalists in our nation. Abundant information in the interest of public which has to be disclosed would persist to remain within the ambit of confidentiality if there is no protection bestowed upon the journalist’s rights. The relationship between a journalist and his source of information which is anonymous to other must be same as an attorney-client relationship or a Doctor-Patient relationship.

The confidentiality must be maintained due to the weight and significance of the relationship between them as well as the information being in the interest of the public. Hence, right to refuse to disclose the source of information must be brought within article 19(1)(a) as a fundamental right and the reasonable restrictions must include, but not be limited to, mandatory disclosure by journalists if the information has pertinence to national security or if the information collected, if allowed to be disseminated, would cause chaos among the public. The onus of proof must be on the journalist to prove that the information so collected is not of such nature that would cause a disturbance in the public order or increase the vulnerability of the nation.

Conclusively, there is no stringent legislation that gives legal effect to the maintenance of confidentiality or protection of sources of information by journalists unlike other democratic nations and the same is necessitated in today’s era to ensure the freedom of the press guaranteed under our constitution.