Date:24/04/2003 URL: http://www.thehindu.com/2003/04/24/stories/2003042404671100.htm

National

'No absolute privilege for journalists under POTA'

By J. Venkatesan

NEW DELHI April 23. The Attorney-General, Soli Sorabjee, today maintained in the Supreme Court that under the Prevention of Terrorism Act, journalists had an obligation to disclose the source of their information relating to terrorists or terrorist activities.

Continuing his submissions defending the constitutional validity of POTA before a Bench comprising Justice S. Rajendra Babu and Justice G.P. Mathur, the Attorney-General said, "it is true that the expression "individual' in Section 14 would include a journalist''. A provision like this (which makes it obligatory for anyone to furnish information in his possession) was essential for the detention and prosecution of terrorist offence and did not suffer from any vice.

Citing a number of decisions from the U.S., the U.K., Canada, Australia, the European Union and New Zealand, Mr. Sorabjee asserted that journalists did not have absolute privilege or right not to disclose the source of information.

He said courts had held that where disclosure was essential for the due and effective administration of justice or to prevent harm being done to national interest or security, journalists could be ordered to disclose their sources. Further, he said it would be inappropriate to pronounce on the constitutionality of Section 14 "insofar as it applies to journalists in the absence of any concrete fact situation".

Referring to the contention of the petitioners that even lawyers would not be spared under this Section, Mr. Sorabjee said "there is no sacrosanct privilege of confidentiality that a client enjoys vis-a-vis his attorney". He also refuted the charge that this provision contravened Section 126 of the Evidence Act giving protection to lawyers not to disclose information got from their clients.

`Vaiko speech not an offence'

On the MDMK leader, Vaiko's petition assailing Section 21, Mr. Sorabjee said mere expression of verbal support to a terrorist organisation would not come within the mischief of this section. "Section 21 would not cover any expression or activity which does not have the element or consequence of furthering or encouraging terrorist activity or facilitating its commission." He said, "support per se or mere expression of sympathy or arrangement of a meeting which is not intended or designed and which does not have the effect to further the activities of any terrorist organisation or the commission of terrorist acts are not within the mischief of the section".

(It must be noted that while Mr. Vaiko was arrested for his speech supporting the LTTE, P. Nedumaran and others were arrested for addressing a meeting on the LTTE issue).

Citing an earlier decision of the apex court, Mr. Sorabjee said, "acts which are innocent and do not have the element or effect of furtherance or encouragement of terrorist activity" were outside the purview of this Section. He also strongly defended Section 30 (2) relating to protection of witnesses and said "if witnesses are not given immunity they would not come forward to give evidence and there would be no effective prosecution of terrorist offence and the entire object of the Act would be frustrated".

He maintained that the right of cross-examination was not an absolute right. "Under compelling circumstances, it can be dispensed with and another mechanism which complies with natural justice and fair trial can be evolved." Mr. Sorabjee will continue his arguments tomorrow.