THERE are prevalent even in high quarters some palpably wrong notions about journalists' right to protect their sources of information. At the other extreme is the view held by journalists that this right is absolute. There are, however, no absolute rights in any society governed by the rule of law.

That said, the ambit of that precious right and its importance to ensuring freedom of press cannot be exaggerated. Alas, even judges of superior courts do not seem to realise that. On July 8, 2005 Judith Miller, an investigative reporter for The New York Times was sent to prison by Judge Thomas Hogan in the US District Court in Washington D.C. The case arose out of a member of the Bush administration maliciously and illegally disclosing to the press the name of a CIA operative Valerie Plame because her husband Joseph Wilson had exposed a lie which was being used to justify an attack on Iraq. He had been to Niger and wrote an article in The New York Times revealing that it had not sent any uranium to Iraq.

Judith Miller refused to compromise her source. She told the judge if journalists cannot be trusted to guarantee confidentiality then "journalists cannot function and there cannot be a free press". Judge Hogan summarily rejected her plea.

To its shame the US Supreme Court, packed with Republican appointees, refused to entertain an appeal. The court had come a long way from its earlier liberal record when it held that "Without some protection of seeking out the news, freedom of the press could be eviscerated".

The right to publish the news would be defeated if the very collection of the news is impeded. The right to gather news necessarily implies a right to maintain the confidential relationship between the reporter and his source. If this confidentiality is undermined, the gathering of news becomes impossible and freedom of the press becomes an empty shell denuded of content.

This right to confidentiality, indispensable to press freedom, is not absolute any more than press freedom itself is. A free society balances competing rights, duties and values.

The fundamental right to freedom of speech guaranteed by the constitutions of Pakistan and India, therefore, necessarily protects news collection. It is subject to 'reasonable restrictions' and that applies to the protection of the sources. Like any citizen a journalist who is witness to a crime or comes to know about it owes a duty to inform the police. That is where the balancing of completing values comes - freedom of the press and law enforcement. It is for the courts to strike the balance.

In the US, the leading case is that of Branzburg vs Hayes decided in 1972. The court was evenly split. Four justices held that the First Amendment (guarantee of free speech) does not accord a newsman privilege against answering questions as to either the identity of his news sources or information which he has received in confidence. Four other dissented. Justice Powell, while concurring in the court's opinion, filed a separate judgment emphasising the limited nature of the court's decision. His judgment, therefore, is the governing judgment of the court.

He said: "I add this brief statement to emphasise what seems to me to be the limited nature of the court's holding. The court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources ..

"If the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered.

"The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct".

In Britain a balance of sorts was stuck in Section 10 of the Contempt of Court Act, 1981 which says: "No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose the source of information contained in a publication for which he is responsible unless it be established to the satisfaction of the court that disclosure is necessary in the interest of justice or national security or for the prevention of disorder or crime."

It must be 'necessary' for any of these four ends but the determination that belongs to the courts.

On March 27, 1996 The European Court of Human Rights gave a ruling on this question. "Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and the professional codes of conduct in a number of contracting states and is affirmed in several international instruments on journalists' freedoms. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected.

"Having regard to the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order of source disclosure has on the exercise of that freedom, such a measure cannot be compatible with Article 10 of the Convention [on freedom of speech] unless it is justified by an overriding requirement in the public interest."

The true test is an interest 'overriding' the public interest in the confidentiality of the source.

No statute can strike the balance but it can indicate the tests for the courts to follow as Section 10 does. It deserves emulation. It is not editors or the editorial staff but correspondents on the beat especially in the districts who have to face demands by police officials to disclose their sources.

The writer is an author and a lawyer based in Mumbai.