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A journalist’s sources
By A. G. Noorani
THE subtleties of the law combined with the hazards of news reporting to give an erroneous impression of two
recent judgements of the Bombay High Court in the Stardust case. Ironically, the very justified claim particularly by
investigative journalists to the protection of their sources received a boost at the hands of the judge who ordered
disclosure of sources in that case rather than the Division Bench of two judges which set aside the order of disclosure.
Both orders turned on differing appreciation of the real object of the demand for disclosure at an interlocutory stage
before trial and the application of the law to such a demand.
The facts are simple. Stardust published an article by Ms Nishi Prem last April entitled “Queer Quartet” concerning
the relations between Ms Shabana Azmi, the film actress, her husband, Mr Javed Akhtar, a film script writer, and
another couple. The author claimed that she had overheard a conversation at a gathering concerning the four. She
proceeded to “unravel the complexities of this four-dimensional relationship.”
The article provides “the details” she had thus gathered. A substantial part of its consisted of “reporting” of
comments made by some on the life style of Mr Javed Akhtar and his wife. The persons who were alleged to have
made these comments were variously referred to in the article as a "starwife", "industrywalla," and “industrywalli”
and a “unitwalla” of the unit of a film Mr India. Only one of these “sources” was named, Mr Mahesh Bhat, a film
director.
A libel suit
Mr Javed Akhtar filed a libel suit against the writer, publishers, printers and against Mr Mahesh Bhat claiming Rs. 25
lakh as damages. He also applied to the Court for a direction to the author of the article to disclose on affidavit the
names of “starwife,” “industrywalla,” “industrywalli” and “unitwalla” of the film unit of Mr India mentioned in her
article. He claimed that the author had concocted the conversation in the name of fictitious persons to lend credibility
to her story and cited in support the fact that Mr Mahesh Bhat had denied on affidavit the comments attributed to
him. He also claimed that the defendants had made no efforts to ascertain the truth of the contents of the article from
the plaintiff.
The application was based, broadly, on three grounds — to enable the plaintiff to make the proceedings more
effective and complete; to substantiate his case, in particular to establish malice; and to enable him to sue the persons
who had made the statements to the writer so that they could be made parties to the suit.
The author claimed in defence that the statements made in the article were substantially true and the opinions
expressed in it were fair comments on a matter of public interest. She contested the application for disclosure of her
sources on various grounds: that it was for the improper object of suing those persons; that they would probably be
called as witnesses when the suit is heard; that disclosure would be unfair to the sources and amount to breach of
confidence and breach of journalistic ethics; and that the plaintiff was seeking to discover the defence witnesses with
a view to intimidating them by threat of legal action.
Ascertain the facts The Code of Civil Procedure (Order XI, Rule 1) enables a party to administer interrogatories to the
opponent to ascertain the facts which constitute the opponent’s case but not the disclosure of the evidence by which
he hopes to prove it. A plaintiff cannot ask for the names of the defendant’s witnesses, nor obtain discovery of facts
which constitute exclusively the evidence of his adversary’s case. Interrogatories are permissible in regard to one’s
own case; for example, to obtain admissions in support of the case or to impeach the adversary’s case. The law as to
discovery by interrogatories is not in doubt. Its application to the facts of a case raises problems especially in libel
cases against journals. English judicial decisions have over a century evolved the “Newspaper Rule” under which in
an action for libel, a newspaper cannot be asked to disclose the sources of its information at an interlocutory stage.
The writer relied on this rule.
The plaintiff’s application was heard by Mrs Justice Sujata Manohar who considered the provisions of the Code of
Civil Procedure in India and the cases concerning the Newspaper Rule in England. However, as a result of the Porter
Committee’s Report on Defamation, the English rule, hitherto based on caselaw, was codified and extended to all
categories of defendants in libel suits by a new rule (Order 82, Rule 6) in 1949. It reads thus: “In an action for libel or
slander where the defendant pleads that the words or matters complained of are fair comment on a matter of public
interest or were published on a privileged occasion, no interrogatories as to the defendant’s sources of information or
grounds of belief shall be allowed.”
Referring to this provision, Mrs Justice Manohar observed, “The present case is not a case which would be covered
by the principles laid down in Order 82 Rule 6. The article here deals entirely with the private life of a film script
writer and his actress wife, and their relationship with another couple in the ‘film world’. Such an article cannot be
considered as an article on a matter of public interest.
“Private life of a film script writer and his actress wife may cater to the curiosity of a certain kind of reader. But what
is interesting to the public is not necessarily of public interest. In Gatley on Libel and Slander. 8th. Edition at para 742
it is stated, the private life and character of an author or artist unconnected with the work he has given to the public’
is not a matter of public interest.”
The Judge allowed the application on July 14. 1987 and ordered disclosure. Ms Nishi Prem appealed. On September
19. a Division Bench of the Bombay High Court consisting of Mr Justice ML. Pendse and Mr Justice M.P. Kenia
allowed the appeal.
On one point, both the trial as well as the Appeal Court were agreed. Interrogatories are not allowed to enable the
plaintiff to sue others. The appeal court, however. felt that this was the real object since it was mentioned in the
plaintiffs application. Nor were the other grounds made out, in its opinion. It upheld the defendant’s plea that
another object of the application was to find out who the defence witnesses would be. which is impermissible.
The trial court and the appeal court differed not only on the application of the Indian law relating to interrogatories
to the facts of this case but also on the Newspaper Rule which the appeal court applied. There are, however, two
flaws in its judgement.
Not in good taste
First, the appeal court did not consider whether the writing was at all on a matter of “public interest” so as to claim
the protection of the sources. It merely said “disclosure of source of information cannot be directed merely because
the article is not in good taste.” On issue however was not taste but “public interest”.
Mrs Justice Sujata Manohar had on a perusal of the article observed that it “does not disclose any information which
can be said to be of public importance or public interest. The article merely comments on the private life of a film
script writer and his actress wife. It has no bearing on any matter of public importance. The disclosure of names
asked for is directly material to the plaintiffs case. It is not a case where any special protection needs to be given to
the third defendant (the author). There is no investigative journalism involved here, which may be of value to an
open and free society.”
The distinction is sound in law. As Lord Will be force put it, “There is a wide difference between what is interesting
to the public and what is in the public interest to make known”. Citing this dictum, the court of appeal in England
elaborated in a recent case that “The public were interested in many private matters which were no real concern of
theirs and which the public had no pressing need to know.’’ One wishes the Division Bench had discussed this aspect
which bears directly on the subject and is of great public importance.
Secondly, the Court, while setting aside the order of disclosure. emphasised that it was “not examining the larger
issue as to whether the newspaper is entitled to the privilege (of non-disclosure) at the time of final hearing of the suit
and we specifically leave that question open for hearing at the trial.”
Press freedom
It is unfortunate that the Court did not comment on a yet larger issue on which Mrs Justice Sujata Manohar had
opined at length to the gain of press freedom. Her observations deserve to be quoted in extension.
“It is undoubtedly true that a disclosure of a newspaper’s source of information should not be ordered if such
disclosure would be injurious to public interest. Freedom of the media to investigate and report on matters which are
of public interest is essential to a free society. As a result, information which would otherwise not be available is
made available to the public. If the name of a person who gives confidential information to a newspaper is required
to be disclosed by the newspaper, it is possible that a newspaper’s source of information may dry up and the public
would not have the benefit of disclosure of matters which are of public importance.
“But this protection can be extended only when the information or material published is of public importance; as for
example, if the information relates to malpractices in a governmental organisation. Even information relating to the
private life of a public figure may of public importance if such in formation has a bearing on the manner in which the
public figure discharges his duties or if such information reflects on the suitability of such a public figure to hold the
office that he occupies.”
True, the application of this rule will necessarily “depend on the balancing of various public interests which may be
involved.” The discretion will vest in the Court. In the case of “investigative journalism”, Justice Manohar stressed,
the Courts will not order disclosure. Her exposition of this wider aspect of the matter transcends the significance of
the instant case. It richly deserved the Appeal Court’s endorsement. One hopes that some day before long the
Supreme Court will uphold it.