The cornerstone of investigative journalism is the use of confidential sources and that is indispensable to the news making process but it is necessary to acknowledge that some disclosures have real potential to cause harm to the national security or the social fabric. The information may be valuable to the public discourse. The Indian Constitution provides for “the right to freedom of speech and expression” (Article 19(1) a). However, this right is subject to restrictions under sub clause (2), whereby this freedom can be restricted for reasons of “sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, preserving decency, preserving morality, in relation to contempt, court, defamation, or incitement to an offense”. Laws such as the Official Secrets Act and Prevention of Terrorist Activities Act (POTA) have been used to limit press freedom. POTA was repealed in 2006, but the Official Secrets Act 1923 continues. Media control was the major constraint on press freedom before the liberlisation started in the 1990s, where after, private control of media has burgeoned, leading to increasing independence and greater scrutiny of government.
The NDTV had in the recent past overhyped the information on Arihant submarine and according to the National Security Advisor (NSA) Ajit Doval, that was classified information and obtaining such information is an offence under the Official Secrets Act. Reacting to criticism on the freedom of media, NSA talked hard by stating that, “The day we sink, all this freedom of the press will also sink.” NSA had earlier said that media freedom could not be allowed to imperil national security. In the same context Information and Broadcasting Minister Venkiah Naidu had reiterated that nations have boundaries, and said the concept of freedom is not above the nation’s interest and views cannot be promoted as news and added that journalists are “citizens first and journalists next.”
Now looking into the above there is no denying the notion that the freedom of media should not be curbed and at the same time there are legitimate but newsworthy government secrets. The publication of these secrets could harm the national interest without contributing meaningfully to informed public debate. In principle, then, the government should be able to prohibit the publication of such secrets. For example, the publication of secret information that the security of our nuclear power plants is inadequate might both endanger and further the national interest. In such situations, it is often difficult to know which effect predominates. The very concept of information not being newsworthy is elusive. This is a serious difficulty, but it is not necessarily insurmountable. It should be possible reasonably to limit the uncertainty by clearly and narrowly defining what is prohibited.
To provide reasonable guidance to the press, avoid chilling the publication of information that is important to the public interest, and limit the dangers of unchecked prosecutorial discretion, we need clear, simple, straightforward rules. Such rules, by definition, will be imperfect. They will inevitably protect either too much or too little expression, and they will inevitably protect either too much or too little secrecy. This is a dilemma.
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