Tort Law

Nishi Prem v. Javed Akhtar

AIR 1988 Bom 222

Facts

• Nishi Prem wrote an article titled “Queer Quartet.”
• The article was published in a film magazine in April 1987.
• It concerned screenwriter Javed Akhtar, his wife and persons associated with the film industry.
• Akhtar alleged that the article contained false and defamatory statements.
• He claimed that the writer had invented the information or relied upon fictitious unnamed sources.
• The defendants pleaded that:
o the statements were substantially true;
o opinions were fair comment; and
o information had been supplied by persons within the film industry.
• During the litigation, Akhtar served interrogatories seeking disclosure of the identities of the sources.
• Nishi Prem refused, relying upon the journalistic practice of protecting confidential sources.
• She argued that forcing disclosure would damage freedom of the press and discourage informants.
• The court had to decide whether a journalist possesses an absolute privilege to conceal sources in a defamation suit.

• Whether journalists have an absolute “newspaper rule” protecting confidential sources.
• Whether source identities were relevant to the plaintiff’s defamation claim.
• How source confidentiality should be balanced against the administration of justice.

• Freedom of the press and protection of confidential sources are important public interests.
• Courts should not order unnecessary or wholesale disclosure of journalistic sources.
• However, Indian law does not recognise an absolute privilege allowing journalists to withhold sources in every proceeding.
• Disclosure may be ordered where:
o the information is directly relevant;
o it goes to the heart of the claim or defence;
o the claimant cannot fairly test truth or malice without it; and
o the interests of justice outweigh confidentiality.
• A publisher relying upon truth or responsible sourcing may be required to identify the persons said to possess the relevant facts.

• The defendants did not merely rely upon general editorial opinion.
• They asserted that specific industry sources had supplied the factual allegations.
• Akhtar claimed that those persons did not exist and that the writer had fabricated the story.
• The source identities therefore went directly to:
o whether the article had a factual basis;
o whether the truth defence was genuine;
o whether the journalist had acted maliciously; and
o whether further persons should be joined to the litigation.
• This was not a request for every source ever used by the magazine.
• It concerned the particular informants upon whom the disputed publication allegedly depended.
• Without disclosure, Akhtar would face serious difficulty testing the central defence.
• The public interest in journalistic confidentiality remained relevant but was outweighed by the specific needs of justice in the case.

• The Bombay High Court held that Nishi Prem could be required to disclose the relevant sources.
• There was no absolute newspaper privilege.
• Source protection should ordinarily be respected, but not where identity is essential to a fair determination of a defamation claim.
• The court upheld the use of interrogatories directed to the particular sources behind the article.