CIVIL LIBERTIES

Interrogation of Journalists
A G Noorani
A M I D S T all the din over the Fairfax affair the press would do well to take full cognisance of S Gurumurthy's interrogation. His arrest and detention were rightly condemned. But the lines on which he was interrogated have not received the attention which this grave matter deserves. As in the case of Brahma Chellaney two years ago we have authentic evidence of police interrogation directed towards (a) eliciting a journalist's sources of information, and (b) for collateral purposes which have nothing to do with any violation of the Official Secrets Act alleged against him. Extracts from Gurumurthy's bail application published in Indian Express on A p r i l 7 list the following seven questions as having been put to him. The extract reads thus: ' T h e petitioner, while in custody has been repeatedly asked questions to the following effect (substance reproduced) (1) Have you met McKay or Harris of Fairfax? (2) Have you paid anything to them for investigation? (3) Has Ram Nath Goenka engaged this agency for you? (4) Has the competitor of Reliance, Nusli Wadia, helped you in this? (5) How many times have you met Bhure Lal, the director of enforcement? (6) Have you suggested the name of Fairfax to Bhure Lal? (7) Do you know how the government has paid for the services of this detective agency?". What had these questions to do with any charge under the Official Secrets Act? Also, it has been alleged in the proceedings in court on Gurumurthy's bail application that he was asked to disclose his sources, but he refused. The press must not allow this to escape without censureIt is high time the press asserted itself on the question of disclosure of sources; first, by demanding legislation amending the Evidence Act on the lines recommended by the Law Commission and, secondly, by drawing up a comprehensive statement of the existing law which despite its inadequacies does not permit such interrogation. In this context it is interesting to study the ruling given by Justice Hoffmann in the Chancery Division in England as recently as on March 31, 1987 (see The Times, A p r i l 1, 1987). He upheld a journalist Jeremy Warner's refusal to answer certain questions put to him by inspectors acting under statutory authoritythe Companies (Insider Dealing) Act, 1985-to investigate suspected leaks from the Office of Fair Trading, the Department of Trade and Industry or the Monopolies and Mergers Commission of price-sensitive information about takeover bids which appeared to have been communicated to outsiders. The outsiders used it to deal on the stock exchange. The inspectors were appointed last December by the Secretary of State for Trade and Industry. No words need be wasted to emphasise the gravity of the matter. On February 25, 1987, Warner was required to attend before the inspectors and was asked a number of questions about the nature and sources of information upon which two articles of his had been basedone in The Times of November 8, 1985, and the other in The Independent on October 23, 1986. Warner refused to answer on the ground that he was unwilling to disclose information which might enable his sources to be identified. After further questions and receiving the same answer, the inspectors reported the matter to the court. The issue before the court was whether Warner had refused to answer "without reasonable excuse" within the meaning of Section 178(2) of the Act. If he had, the court was empowered to punish him "in like manner as if he had been guilty of contempt of court". Warner relied on section 10 of the Contempt of Court Act, 1981 and in the alternative on the public interest in the protection of journalists' sources of information. Section 10 forbids courts from compelling disclosure "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". None of these was involved in Warner's case or in Gurumurthy's case cither. The court recalled the judgment of Lord Diplock in Secretary of State for Defence vs Guardian Newspapers Ltd which approved the judgment of Lord Griffiths in the Court of Appeal where he said that The press had always attached the greatest importance to their ability to protect their sources of information; that if they were not able to do so, they believed many of their sources would dry up, which would seriously interfere with their effectiveness; that it was in the interests of all that there should be a truly effective press and that parliament by enacting section 10 had clearly recognised the importance attaching to the ability of the press to protect their sources. As was pointed out by Lord Diplock in the Guardian case, the privilege created by section 10 meant that, where it applied, a finding by the judge that disclosure was 'necessary' for one of the purposes mentioned in the proviso was 'a condition precedent to his having any jurisdiction to order disclosure of sources of information'.

It did not follow that in cases falling within the proviso or where the section did not apply, the jurisdiction had to be exercised. The judge still had to exercise a discretion by weighing the need for disclosure against the public interest in the protection of sources. As to whether section 10 applied at all in the present case, his Lordship's view was that section 10 had no application. The inspectors were not a court and (although it might seem rather technical) Mr Warner's refusal could not have been a contempt of court; it could only make him liable to punishment 'as it he had been guilty of contempt of court'. But in this case it did not matter whether the section did apply: the words 'reasonable execuse' were wide enough to require the court to take into account the public interest in the protection of sources. It seemed the same process had to be performed of weighing the public interest against the interests of justice or the prevention of crime as the court would have done if application for disclosure had been made in court proceedings. So the absence of section 10 made no difference. The same holds good for our courts. It is very desirable to have legislation, but its absence does not give the investigating authorities or the trial court a carte blanche to compel discolsure of sources. To quote The Times' Law Report, to which I am much indebted, the judge observed: Looking at the matter as an exercise of discretion outside the statute, and giving disclosure the benefit of the doubt, the court considered that the public interest in the protection of sources outweighed the value of disclosure for the purposes of the investigation: it followed that Mr Warner had a reasonable excuse. Mr Warner had also been asked about the source of unpublished information which would not have been protected by section 10. The reason for the limitation to the sources for published articles was obscure, but in his Lordship's judgment the rule of public policy had to cover all sources of information contained in the course of the journalists' professional work (italics added). The reasoning is very relevant and the case is a persuasive authority of great weight in Indian courts as well.

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