Right to Privacy or Right to Know! Which is the right ‘Right’?
by Thamizhchelvan on 08 Dec 2010 1 Comment

In the aftermath of his lobbyist Nira Radia’s tele-cons with politicians and families, journalists and editors, ministers and personal assistants, businessmen and auditors, bureaucrats and peons, taking the nation by storm, Ratan Tata has approached the Supreme Court seeking a probe on the leaking of the Radia tapes claiming his privacy has been infringed by the release of the said tapes. Home Minister has denied ordering a probe, calling the leaks ‘inevitable.’


Privacy can be defined as “the quality or condition of being secluded from the presence or view of others or the state of being free from unsanctioned intrusion”. It may also be said as a “condition of being secret”.


However, a view that the text of the conversations made public in a section of the media and over the internet shows that there was nothing private in the revealed conversations, barring a few references to a Black-Tie Party in London and the inability to wear a Black Gown in India. The rest of the conversation was of paramount public interest involving shady deals with political families, influencing cabinet formation, lobbying through journalists, etc.   


While Senior Advocate Prashant Bhushan, one of the main players in exposing the spectrum scam, is ready to contest on the ground that ‘Right to Know’ is a fundamental right and that ‘public interest’ is more important than an ‘individual’s privacy’ especially in matters concerning ‘national interest’, Senior Advocate K.T.S. Tulsi seems to worry that allowing a free run in this matter will make it easy for the ruling party to trump up charges against political opponents and then order indiscriminate tapping of conversations. He also cited the Supreme Court ruling in 1994 that the “right to privacy” is to be a part of the right to “life” and “personal liberty,” enshrined in Article 21 of the Constitution.


In this particular case, Ratan Tata is not seen as a private person but a public personality, a well known industrialist hailing from a family owning one of the biggest corporate houses, which has contributed much to the nation’s progress.


His official PRO, not even a citizen of this nation, has been running amuck for years, making a mockery of democracy. She has been ‘playing’ with all the pillars of democracy, throwing ethics and morals to the winds. Forget about Black ties and Black gowns, her conversations reveal everything, from dealing with a Chief Minister’s third wife, to lobbying for a particular politician for a particular ministry, to creating a story for her boss in the media to influence a court judgment and what not!


So when the entire world of Nira Radia revolves around matters of utmost public importance, where is the question of privacy? There was nothing about Tata’s family or personal interests.


Journalist Gopikrishna of Pioneer, who had come down to Chennai for a seminar last week, rightly observed that the IT department tapped only Radia’s phone calls and not Ratan’s.


Nira Radia was not only lobbying for Ratan Tata, but for Mukesh Ambani as well. Both industrialists are not ordinary businessmen.  They play a vital role in the growth (or de-growth) of this country’s economy. The whole nation follows their businesses, buys and uses their products, and a lot of people are their shareholders! The shareholders are also a part of the general public and the Tatas and Ambanis have no right to act against public interest and then claim to protect their actions in the name of right to privacy. They are accountable to general public and they have to be transparent in matters of public interest.


Public personalities of whichever hue can have a private life. Absolutely no issue at all! But, in matters of public interests, they have to be transparent and they are accountable too.


Barkha Dutt and Vir Sanghvi, who were involved in this sordid issue, have been arguing that the editors of Outlook and Open Magazine should have got their consent before publishing the tapes. Both editors have rightly dismissed the argument. Many senior journalists and editors have categorically opined that the concerned journalists indeed crossed the lakshman rekha. Print media publishing and the electronic media playing the transcripts of tapped tele-cons is not a new phenomenon. It has been happening for years! Tehelka is notoriously famous in this regard, and it also has dismissed the said argument. The same Barkha Dutt played the alleged speech of Varun Gandhi during her news coverage. Did she get his consent, or at least inform him? Many such queries can be put to the mainstream media.


There is a judgment by the apex court in this regard. In Rajagopal & Anr. v State of Tamil Nadu & Ors  - (1994) 6 SCC 632; AIR 1995 SC 264, the petitioners were editor and associate editor of a magazine, who wanted to publish a serial on the autobiography of the notorious criminal “Auto Shankar”, a prisoner then awaiting the gallows. He was alleged to have written his autobiography inside the prison depicting his close nexus with several police and prison officials and sent it to the concerned publishers through his advocate. The then Inspector General of Prisons disputed this and claimed that the criminal had not written any autobiography in prison and threatened legal action on publication.


Proceeding on the assumption that the Inspector General’s version of the facts was the correct one, the Supreme Court laid importance on the point that the right to privacy is implicit in the constitutional guarantee of a citizen’s right to life and liberty under Art 2. However, the SC reasoned, “It is neither possible nor advisable to express exhaustive principles relating to the right to privacy as it must be allowed to evolve on a case-by-case basis. Publication without consent of anything that concerns person’s private life, whether truthful or not, will generally violate that person’s right to privacy and lay the foundation for an action for damages unless the person has voluntarily put him or herself in the public eye or the publication is based upon public records, including court records (except where such records relate to the naming of victims of offences such as sexual assault).”


But ultimately the SC decided in favour of the publishers, albeit with a note of caution, “The petitioners therefore, had the right to publish without consent, those parts of Auto Shanker’s autobiography that appeared from public records but, if they published any information that went beyond that source, they may be liable for breaching his right to privacy, adding, “The respondents cannot take it upon themselves to institute proceedings to protect Auto Shanker’s right to privacy in the absence of any evidence that he requested or authorised them to do so.”


In the present case, Nira Radia is the authorised PRO of Ratan Tata and hence he may be right in approaching the SC. But, in the ‘Auto Shankar’ case judgment, the SC also said, “Public officials (in this case, the police and prison officers) do not have the right to bring an action for damages in defamation in relation to acts they perform in the discharge of their official duties, unless they can prove that the publication is false and was made by the defendant with ‘reckless disregard for the truth’.”


Ratan Tata may not be a public official, but the onus remains on him to prove that the publication is false and that the concerned editors have made it with reckless disregard for the truth. A tall order indeed for the tall man!


Interestingly, in the Auto Shankar case, the SC also said, “The writer or journalist need not prove that what he or she has written is true, merely that he or she acted after reasonably verifying the facts (New York Times v Sullivan 376 US 254 (1964) followed).”


So, both Outlook and Open Magazine are quite safe!


Again in the Auto Shankar case the SC said, “The Government, local authorities and other organs or institutions exercising governmental power cannot maintain a suit for damages for defaming them (Derbyshire County Council v Times Newspapers Ltd [1993] 1 All ER 1011 (HL) followed). The State or its officials have no legal authority to impose a prior restraint upon publication of material which they apprehend to be defamatory of them (New York Times v United States 403 US 713 (1971) applied). Any remedy that public officials may have for defamation arises after publication.”


So, it all depends on how the present bench of the SC is going to interpret things. Ratan Tata has two slender advantages. One is that the tapes have probably been leaked from the IT Department under the Central Government. The other is that he is not a public official. On the other hand, he also has disadvantages - no one including him has denied the conversations and the authenticity of the tapes, and no other person involved in the issue has joined him in the claim of violation of ‘privacy’.


The infamous tapes have some damning, some funny and some interesting ‘personal’ details of other characters involved in the scandalous issue. But none of them have bothered about privacy! Only Ratan Tata has bothered about it – possibly a fearful apprehension of what other tapes may surface in the public domain!  


What an irony! Ratan Tata has fallen to fighting in court for “privacy” when there is nothing private about the whole issue. But Nira has done her job and he cannot blame her either.


There remains the larger question, will the Supreme Court uphold the ‘right to privacy’ or the ‘right to know’ in a matter of ‘public interest’; we shall have to wait and see.





http://ahrc01ja.php5.truth.posiweb.net/index.php?title=India&printable=yes&printable=yes (Personality Database – India)

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