Case involves larger citizenry's right to know and the individual's right to privacy

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 wiretaps 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 petition 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 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 the 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 the “public interest.”

“In a situation where every institution has been compromised, where there is illegality and wheeling and 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 in 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 wiretaps must be treated as an emergency power subject to scrutiny and revision by 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, the public interest was not an undefined, overarching space under which blanket permission could be sought for tapping conversations.

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