Tata petition raises question of two conflicting rights: 30/11/2010

Vidya Subrahmaniam & J. Venkatesan

New Delhi: Did Outlook weekly and Open magazine violate the privacy rights of
individual citizens when they placed in the public domain hundreds of conversations
that corporate lobbyist Niira Radia held with industry heads, journalists,
bureaucrats, public servants and ministers?

The question becomes relevant in the context of a petition filed in the Supreme
Court on Monday by Tata Group chairman Ratan Tata claiming infringement of
privacy on account of the release of a portion of his conversations with Ms. Radia.
The wire taps were ordered in 2008 and 2009 as part of an Income Tax surveillance
on Ms. Radia, who at that time represented both the Tata Group and the Mukesh
Dhirubhai Ambani group.

The tapes were appended to a Public Interest Litigation that lawyer Prashant
Bhushan filed in the Supreme Court seeking a probe into the 2G spectrum scam.
Last week, the tapes found their way into the pages of the two magazines from
where they were picked up by countless other publications as well as Internet sites.

At the heart of the debate are two conflicting rights. The larger citizenry's right to
know and the individual's right to privacy. Speaking to The Hindu on Monday, Mr.
Bhushan said he would contest any injunction on the publication and dissemination
of the tapes sought by the industrialist. Those representing Mr. Tata refused to go
on record but said the tapes, portions of which were “of a purely personal nature,”
ought to have been used only for the purpose for which they were intended by the
government, and their subsequent leak had seriously injured Mr. Tata's image and
reputation and constituted a violation of his privacy.

Mr. Bhushan disputed this saying privacy concerns were peripheral to the core issue
of national interest. The tapes revealed the subversion of the key pillars of the
State — the executive, Parliament and judiciary — by a powerful coterie with its
own vested interests: “In this case the citizen's right to know completely overrides
the individual's right to privacy.”

According to Mr. Bhushan the imperatives of transparency were supreme and he

cited the enactment of The Right to Information Act on the premise that the “right
to know” was a fundamental right within the meaning of the right to free speech.
He said even though the RTI Act prescribed a set of exemptions to the release of
information, it also allowed the exemptions to be waived in “public interest.”

“In a situation where every institution has been compromised, where there is
illegality and wheeling-dealing across the board, people have a right to know what
is going on.”

Mr. Bhushan also argued that no case could be made out against those who had
leaked the tapes. Far from it, it was the right and duty of public officials to disclose
information and act as whistleblowers. “If the IT department or the Central
Vigilance Commission is engaged in a cover-up, then it becomes the duty of the
official in the department to bring this to the knowledge of citizens provided the
disclosure does not impinge on national security.”

Weighing in on the side of privacy, the former Additional Solicitor General, K.T.S.
Tulsi, said tapping of telephones even by the government was permissible only in
the rarest of rare cases affecting the sovereignty and integrity of the nation, and
economic offences did not count among them: “If the IT department is allowed to
tap every telephonic conversation, then this will be the starting point of
investigation in every case and there will be no personal freedom.”

Mr. Tulsi said if the government was allowed a free run in this matter “it will be
easy for the ruling party to trump up charges against political opponents and then
order indiscriminate tapping of conversations.” His counter to the RTI argument
was a 1997 Supreme Court ruling holding the “right to privacy” to be a part of the
right to “life” and “personal liberty,” enshrined under Article 21 of the Constitution.

There were four broad points made on behalf of Mr. Tata and other individuals
featured in the conversations. First, the government's own limited power to order
wire taps must be treated as an emergency power subject to scrutiny and revision
by the courts. Secondly, even in the rare situation where tapping was resorted to, it
had to be done by an established legal procedure. Three, the privacy of individuals
at the other end of the conversations had to be protected at all times. And finally,
public interest was not an undefined, overarching space under which blanket
permission could be sought for tapping conversations.