Law and limits

Published : Jul 17, 2009 00:00 IST

THE right to know flows from the fundamental right to freedom of speech. It is, therefore, subject to the same three limitations. It is subject to reasonable restrictions. The courts, not government, will decide the reasonableness. Such restrictions must be imposed by law; an executive order that is not backed by law will not do. Finally, Article 19(2) of the Constitution specifies the grounds on which alone the right can be so restricted. 0;The security of the state and public order are among them.

Ronald Goldfarb is an attorney, literary agent and author of several books. This work grapples with the dilemmas that confront every democratic society on state secrets, medical confidentiality, spousal and pastoral privilege, privacy, privileged communication, the lawyer-client privilege, confidentiality in business, the effects of technology on confidentiality and, last but not least, the journalists right to protect his/her source and the value of the anonymous source.

Not one topic of relevance is omitted. Each is discussed, thoroughly backed by copious references. The approach goes beyond legality though the law is not overlooked.

The law has protected communications with certain classes of people doctors, lawyers, clergy, spouses from enforced exposure on the ground that those relations are important to protect the practical and humane reasons. But even the professional secrets for which the law provides privileged status must be disclosed in specific situations. The search for truth and for public information is balanced against competing needs for censorship and requirements for privacy and secrecy, which, even when legitimate, are inherently jeopardised by human nature and evolving technology. If a suspect confesses to his crime to a journalist, does his duty to protect his sources override his duties as a citizen? The author is realistic. The spoken or written word is a sped arrow. Once information is disclosed, its subsequent dissemination cannot be controlled. Confidentiality aspires to be perpetual. But this hope goes against human nature.

Before long, we will have to resolve an acute problem when the Government of India formulates amendments to the Right to Information Act, 2005, to exempt notings on files from disclosures. Civil servants must not be inhibited in expressing their honest views on the files. On the other hand, it is notings which unravel the mystery behind every scandal. Where do we draw the line? The constitutional validity of the amendments is certain to be challenged in the Supreme Court.

The author is highly literate, unlike most lawyers no matter how well-versed in the law. His quotations from literary works drive home the points he makes besides making the book an extremely lively read. New issues will arrive with the march of time. Are bloggers on the Internet to be considered journalists and, therefore, entitled to protect their sources?

The author strikes a fair balance. The law should encourage and protect confidentiality as much as possible. Associations professional and others that have rules governing confidentiality should enforce them. Private confidentiality agreements, explicit or implicit under the circumstances, should be enforced unless there are overriding public policy reasons for breaching such agreements.

On the other hand, the historical practice of affording privileges to specific classes of relations or information should be reconsidered and reformulated, and limited to the barest minimum (for example, government secrets about troop movements during wartime and identification of informants in criminal investigations). Even then, there should be no absolute privileges, as demonstrated by the abusive claims of state secrets. I agree with Professor Imwinkelrieds conclusion that virtually any privilege can be surmounted by the accuseds constitutional right to present evidence in civil and criminal cases.

There are no absolute unfettered rights. Every right must, in the final analysis, yield to competing rights of society where they affect the very basis of the rule of law.

Sign in to Unlock member-only benefits!
  • Bookmark stories to read later.
  • Comment on stories to start conversations.
  • Subscribe to our newsletters.
  • Get notified about discounts and offers to our products.
Sign in


Comments have to be in English, and in full sentences. They cannot be abusive or personal. Please abide to our community guidelines for posting your comment