Failure of the Bharatiya Nyaya Sanhita to Adopt Journalistic Privilege in India’s Legal Reform
Barooj Abid 1st year learner at Chotanagpur law College,Ranchi
Introduction
In democratic societies, journalism serves as the fourth pillar, an indispensable instrument of accountability and transparency. Yet in India, where the Constitution guarantees freedom of speech and expression under Article 19(1)(a), the right of journalists to protect their sources remains neither codified nor fully secure. The ability to maintain source confidentiality is essential to investigative journalism and to the larger public interest it serves. Without this assurance, whistle-blowers and informants risk exposure, and the press loses its capacity to uncover wrongdoing without fear or favour.
While nations like the United States recognise the “journalist’s privilege” through the first Amendment of the constitution, India continues to rely on fragmented judicial precedents and limited statutory provisions. The question of whether journalists should have a legally recognised privilege to withhold source identity remains a contentious and unresolved aspect of Indian media law.
The Constitutional and Ethical Basis of Source Protection
At its core, the debate on journalistic privilege in India is rooted in the constitutional guarantee of free expression and the citizen’s right to know. These twin principles are inseparable: freedom of speech is meaningful only when individuals have access to information, and journalism acts as the conduit that makes this possible.
The 93rd Report of the Law Commission of India (1983), chaired by Justice K.K. Mathew, addressed this very issue. It cited the Manipur Bar Association’s view that journalists should enjoy a qualified privilege akin to the confidentiality afforded to legal professionals. The report recommended that journalists should not be compelled to disclose their sources unless disclosure is essential in the interest of justice or public good. However, this recommendation was never transformed into binding legislation.
Legal Framework: Privilege Denied
The Indian Evidence Act, 1872, provides statutory protection for three types of privileged communications: between spouses (Section 122), related to affairs of state (Sections 123–124), and between legal professionals and their clients (Section 126). These sections clearly delineate situations where disclosure of information is prohibited in the interest of confidentiality or justice. However, journalists do not find any mention in this framework.
The only statutory reference to journalistic protection exists in Section 15(2) of the Press Council of India Act, 1978, which states that no journalist can be compelled to disclose the source of news or information before the Press Council. Unfortunately, the provision’s scope is extremely narrow , it applies only to proceedings before the Council and not to courts, law enforcement agencies, or other authorities.
Thus, while the Indian legal system recognises professional confidentiality in certain domains, journalism remains excluded from this protective umbrella.
Judicial Interpretation: A Balancing Act
Over time, Indian courts have attempted to fill this legislative vacuum through interpretative rulings. In Nishi Prem v. Javed Akhtar (1987) AIR 1988 Bom 222 the Bombay High Court held that newspapers should not be compelled to reveal their sources at an interlocutory stage, drawing upon the English principle that the press has a limited privilege against disclosure.
However, this protection was not deemed absolute. Subsequent judgments such as Indian Express Newspapers (Bombay) Pvt. Ltd. v. Dr. Jagmohan Mundhara (1985) AIR 1985 Bom 229 and Expression Developerst Pvt. Ltd. v. UP Television Network Pvt. Ltd.CS(OS) 27/2018. reiterated that while journalistic privilege exists, it can be overridden when required in the interest of justice. More recently, in Ashish Mohapatra v. Slowform Media Pvt. Ltd. (2024) CS(OS) 944/2024 , the Delhi High Court affirmed that “source protection” is a recognised privilege for journalists, but one that is not absolute. Courts may compel disclosure where it is necessary to ensure fairness, prevent defamation, or protect the integrity of judicial proceedings.
This evolving jurisprudence reflects an ongoing tension between two competing principles the press’s duty to maintain confidentiality and the court’s responsibility to ensure justice. The absence of a legislative framework means that journalists remain dependent on judicial discretion, which varies from case to case.
The Bharatiya Nyaya Sanhita: A Missed Opportunity
The introduction of the Bharatiya Nyaya Sanhita (BNS), 2023, intended to replace the colonial-era Indian Penal Code (IPC), was heralded as a transformative reform of India’s criminal law. It was expected to modernise legal provisions and align them with contemporary democratic values. However, for India’s media fraternity, the BNS has been a disappointment.
Despite its ambitious scope, it fails to acknowledge journalistic privilege or introduce procedural safeguards for press freedom. Although the BNS repealed the sedition law (Section 124A IPC), its Section 152 effectively reintroduces similar restrictions by criminalising acts that “endanger the sovereignty, unity, and integrity of India.” The wording remains vague and open to subjective interpretation, allowing authorities to target critical journalism or dissenting commentary under the guise of national interest. In practice, this continuity of restrictive provisions undermines the very spirit of decolonisation that the new code claims to embody. The BNS provides no recognition of The journalist’s right to protect confidential sources. The distinction between bona fide journalistic activity and malicious misinformation; and Protection against arbitrary or politically motivated prosecution of journalists. Organisations such as the Editors Guild of India have publicly voiced concern that the absence of such provisions “fails to acknowledge the critical democratic function of the press.” By not codifying journalistic privilege, the law leaves the media vulnerable to the same coercive misuse that plagued the colonial penal framework.
The Democratic Cost of Legislative Neglect
A free press is central to democratic functioning. By refusing to codify journalistic privilege, India’s new criminal code weakens this constitutional safeguard. It fosters an environment ofself-censorship where journalists prioritise safety over truth-telling. The absence of institutional protection also erodes public trust in media independence, reducing the press to a cautious observer rather than an active watchdog. The legislative silence of the BNS represents a missed opportunity to modernise India’s criminal law in the true sense. A forward-looking legal framework should have: Defined journalistic acts and distinguished them from malicious misinformation.Recognised source protection as a professional right and ethical necessity.Introduced procedural safeguards against arbitrary or politically motivated prosecutions.By neglecting these, the reform process retained colonial vestiges instead of creating a truly democratic legal order.
Conclusion
The Bharatiya Nyaya Sanhita, envisioned as a symbol of post-colonial legal modernisation, has failed to extend constitutional protection to one of democracy’s most essential institutions ,the press. While judicial pronouncements continue to uphold limited protection for journalists, the absence of statutory clarity leaves these rights vulnerable to interpretation and misuse.
For India to achieve genuine decolonisation of its legal system, reform must go beyond renaming and restructuring. It must embody the spirit of freedom by institutionalising the rights and responsibilities of journalists as guardians of public accountability. Codifying journalistic privilege particularly the right to protect sources is not merely a professional demand; it is a constitutional necessity. Without it, the press remains precariously placed between state power and public duty, operating in a space where truth itself is at risk.