Should Ratan Tata be Afforded the Right to Privacy?

Introduction

In 2008 and 2009 conversations between Nira Radia- a professional corporate lobbyist , and many different  individuals were intercepted by  Income Tax officials. The interception was approved by the Ministry of Home Affairs. The interception was conducted for suspected tax evasion, possible money laundering, and restricted financial practices. The individuals included:  A. Raja, the then Cabinet Minister of the Ministry of Communications and Information Technology; Ratan Tata, a client of Nira Radia and Chairman of the Tata group of companies; and various journalists including: Barkha Dutt, NDTV journalist alleged to have lobbied in support of A. Raja’s appointment as minister, and Vir Sanghvi, editor of the Hindustan Times alleged to have edited articles reducing the blame in the Nira Radia tapes.  Earlier this year, these conversations were leaked to the media by an unknown source. The leak exposed a scam to manipulate the upcoming auctioning off of the 2G spectrum.  In response to his leaked conversations with his consultant Nira Radia, Ratan Tata has filed a petition in the Supreme Court, claiming that his privacy has been invaded. Tata claims that the conversations were private, and that the tapes should be withdrawn from the public. He has not objected to the use of the tapes in court, acknowledging that they were obtained legally.  On December 2nd the Supreme Court issued a notice to restrain the unauthorised publication of the intercepted tapes [1].

Questions of Privacy

The Nira Radia tapes case raises many important questions about privacy, wiretapping, transparency and ethics. It will be interesting to see how the court rules on different issues as the case progresses.  First, it will be meaningful to see how the court responds to Tata’s plea for privacy. Indian courts have seen only a handful of cases that have directly appealed for protection of privacy as a fundamental right [2].  The type of privacy that has been invaded in this situation is unclear. If one looks at the privacy invasion as the data that was  improperly protected,  thus leading to the leak, the Tax Department may be found to have violated the informational privacy of Tata.  If one looks at the invasion of privacy as the fact that personal contents of conversations were made public with the intent to expose the 2G scam, the claim is really one that his personal privacy has been invaded. Because India does not have a specific legislation on privacy, there is no clear definition of what privacy is, and whether or not Tata has had his privacy invaded.  The decision by the courts will help to clarify how Indian society defines privacy, and where the line between public and private falls.

Is the Information Public Knowledge?

Whether or not the information intercepted in the phone conversations is public knowledge is an important question to answer. Though the 2G spectrum belongs to the people, and the conversations that were intercepted were planning a scam to defraud the Indian exchequer, the conversations were meant to be private. So, does the public have a right to know the content of the conversations, or does Ratan Tata have the right to privacy.  The legislation that addresses the release of public information, and defines the categories of information that are considered to be private, is the Right to Information Act 2005.  In India in recent years the right to knowledge has become a cornerstone of Indian civil liberties. The Right to Information Act 2005 embodies this liberty.  The RTI mandates timely response to a citizen’s request for government information, and in its preamble affirms the policy that “…democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Governments and their instrumentalities accountable to the governed”[3].  Under the Act, public information about or held by the government must be given to citizens upon request. Unlike in some countries, such as Canada, where the Right to Information is bolstered by a privacy law [4], the Indian legislation only contains sections that detail exceptions of data that cannot be disclosed, and the conditions for third party release. These exceptions are laid out in section 8, and in section 11 release of records to a third party is outlined.

Are the  Conversations Considered Public Knowledge and Would they be Released by an RTI?

In a recent interview Prashant Bhushan, Supreme Court Advocate responded to a similar question with the following statement [5]:

Bhushan: "Firstly the conversations which have come out in the public domain are not private conversations. They are conversations between Nira Radia with various public servants, with various journalists etc in her official capacity as a paid professional lobbyist and fixer for her principles.Therefore, there is hardly anything personal in these conversations. These are all professional conversations or conversations about deal making, fixing, subverting public policy etc.These conversations would be available to every citizen even under the Right to Information Act because the only objection that one could raise would be on the ground of 81(J) of the Right to Information Act which says - information which relates to personal information, the disclosure of which has no relationship to any public activity or interest. This information has relationship to public activity or interest. It also says - or which would cause unwarranted invasion of the privacy of the individual unless the public authority is satisfied, unless the information officer is satisfied that the larger public interest justifies the disclosure of such an information. In this case there is overwhelming public interest which warrants the disclosure of this information because this shows all kinds of deal making, fixing going on."

As Bushan has pointed out, it is possible to make the argument that the taped conversations should be categorized as public knowledge. They took place between public officials and journalists, and pertain to an issue that deeply impacts the public as a whole. Thus, a preliminary question that should be asked is whether Tata’s conversations would be revealed through an RTI, or whether his conversation would fall under the exemption of personal information found in section 8(j):

“ Information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:

Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”

It is interesting to note the structure of this exemption.  By the use of the word “or” the legislation suggests that unwarranted invasion of individual privacy may trigger the exemption, even if the information has a relationship to a public activity or interest.  But the added caveat says that the larger public interest could justify the release of even purely private information.  In addition, what constitutes “personal” information is never defined in the legislation. Thus, whether Tata’s conversations were personal in nature will have to be determined by the courts. Even if the nature of Tata’s wiretapped conversations was deemed not to be personal information, there still is an argument that they could still not be released to the public through an RTI, because Tata is not a Tax Department official, and the RTI requires disclosure of information about the Tax Department or officials in the tax department, not information about individuals who are under investigation by the Tax department.

Was the Leak of the Tape Legal?

Though the recording of the tapes by the Tax Department appears to be legal under the Telegraph Act 1885 section 5(2), the leak of the tape was not. Section 5(2) reads:

Section 5(2) – (2) On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order:

Provided that press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section.

Though the Telegraph Act does not lay out specific procedures as to how wiretapped information is to be protected and secured, under section 23 and 24 it is not permitted for any person to illegally obtain the contents of an intercepted telegraph.

23. Intrusion into signal-room, trespass in telegraph office or obstruction – If any person –

        1. without permission of competent authority, enters the signal-room of a telegraph office of the Government, or of a person licensed        under this Act, or

         2. enters a fenced enclosure round such a telegraph office in contravention of any rule or notice not to do so, or

         3.  refuses to quit such room or enclosure on being requested to do so by any officer or servant employed therein,or

         4. willfully obstructs or impedes any such officer or servant in the performance of his duty,  he shall be punished with fine which may extend to five hundred rupees.

 24.    Unlawfully attempting to learning the contents of messages – If any person does any of the acts mentioned in section 23 with the intention of unlawfully learning the contents of any message, or of committing any offence punishable under this Act, he may (in addition to the fine with which he is punishable under section 23) be punished with imprisonment for a term which may extend to one year.

Is it Important that the Leak was Illegal: A Question About the Public Good

Clearly, from the above clauses, and in this situation, the Tax Department could argue that firstly they are not responsible for the leak, and that the illegality of the release of the tapes is subservient to the need to protect public safety.  But what constitutes the greater good? In the case of Babu Ram 8 Verma Vs. State of Uttar Pradesh (1971) the Supreme Court has interpreted that the expression “public interest” as an act beneficial to the general public and an action taken for public purpose[6].  When considering whether the information is for the public good, the simple answer seems to be yes, the exposure of the 2G scam does benefit the “public interest”, but this should not be the complete answer. The reason that there are laws to regulate the dissemination of information is to protect information from being presented in a way that prejudices a person or discloses information that the public does not have a right to know.  It is courts – not individuals – who should decide that the public does have a right to know before the information is disseminated. The information on the tapes could have been brought to the public’s attention by other - legal - means. Namely, the Tax Department could have filed for a new warrant to use the wiretapped information pertaining to the 2G scam, and disclosed the materials in connection with the Comptroller and Auditor General of India.

Concerns about Privacy and the Right to Information: Not a Balance, but a Partnership

The concern that privacy will be used to weaken transparency and to conceal crimes and corruption is often voiced as an obstacle to instituting a firm privacy law. Privacy is not a shield, and should not be misunderstood for one.  A privacy legislation should bring clarity to the Right to Information. It should create a concise framework and understanding of what information is always acceptable to disclose, and what information is not acceptable to disclose without court authorization. In this situation, a privacy law could have clarified that conversations among private citizens are presumptively private, and that a court must determine otherwise. Though many people believe that the right to privacy and the right to transparency is a balance in which one right will always subordinate the other, this is not necessarily true. For instance if we look at how the two rights are at work when a voter is about to go to the polling stations, it is easy to see how they are related. The right to privacy can be understood, inter alia, as the right to be safe in one’s own identity. This is crucial for voting.  If you look at this with focus on the candidate for election, there is a both the need to know as much information about that individual in order to make a informed choice, but if too much, unrelated information is known about a candidate, the election could be compromised.

Conclusion: Will Ratan Tata be Afforded the Right to Privacy? 

In conclusion, the Nira Radia and Ratan Tata case raises many fundamental questions about privacy. In his white paper on privacy Vakul Sharma pointed out two important cases that could pertain to this situation. The first case is the case of People’s Union for Civil Liberties (PUCL) v. Union of India6, the Supreme Court held that the telephone tapping by Government under S. 5(2) of Telegraph Act, 1885 amounts infraction of Article 21 of the Constitution of India. Right to privacy is a part of the right to “life” and “personal liberty” enshrined under Article 21 of the Constitution. The said right cannot be curtailed “except according to procedure established by law”[7]. It will be interesting to see if the courts follow a similar reasoning in this case, because though the tap was legal, the leak was illegal. Or,i f exceptions will be made  under the assumption of the greater public good. The second important case was State v. Charulata Joshi, in which the Supreme Court held that “the constitutional right to freedom of speech and expression conferred by Article 19(1)(a) of the Constitution which includes the freedom of the press is not an absolute right. The press must first obtain the willingness of the person sought to be interviewed and no court can pass any order if the person to be interviewed expresses his unwillingness”[8]. Perhaps the courts will instead follow the logic in this case, and rule that the press had no right to publish the recorded and that by doing so, Ratan Tata’s privacy was invaded. No matter what the court’s decision is, it is clear that in light of the Nira Radia case, the UID, and many other arising situations – India needs to come to a decision about whether it wants privacy legislation, and, if so, what a privacy legislation should look like.

Bibliography:

1. http://en.wikipedia.org/wiki/2G_spectrum_scam http://economictimes.indiatimes.com/news/politics/nation/On-Tatas-plea-apex-court-sends-notice-to-govt   /articleshow  /7028580.cms

   http://www.moneycontrol.com/news/management/ratan-tataright-to-privacy-_502063.html

   http://economictimes.indiatimes.com/news/politics/nation/Phone-taps-should-not-be-leaked-Chidambaram/articleshow/7036765.cm

2.The following are a few cases that pertain to privacy: R. Rajagopal v. State of Tamil Nadu5, People’s Union for Civil Liberties (PUCL) v. Union of India6, Gobind v. State of M.P.

3.The Right to Information Act 2005. Preamble.

4.The Canadian Access to Information Act was created in 1985, and is meant to  complement the Privacy Act

5.http://www.moneycontrol.com/news/management/ratan-tataright-to-privacy-_502063.html

6.Chakraborty, B.K. RTI and Protection of Individual Privacy. Tripura Information Commissio

7.Sharma, Vakul. White Paper on Privacy Protection in India. Section 5

8.Sharma, Vakul. White Paper on Privacy Protection in India. Section 3