Was it okay to leak the Radia tapes?

Tapping of phones is prima facie an invasion of privacy, but it has been well settled that the state and state agencies can tap phones if they are investigating a crime or for purposes of preventing a crime, or in a matter relating to national security, provided they have prima facie evidence that the person whose phone is to be tapped is involved. The tapping can then be authorised by the home secretary of the Government of India.

The question then is whether such information can be put out in the public domain; this is the question that has come up in the context of the 2G or Niira Radia tapes. The tapping was sought in the context of prima facie evidence regarding income tax evasion, the permission was granted, and some portion of the tapes are now out in the public domain. Should these tapes, secured for the purposes of an income tax investigation, now be put out in the public domain? My view is that this is justified under certain circumstances. One, provided that putting out the information does not jeopardise the public safety or public interest. Two, it has a bearing on the public interest. There are categories of very private conversation but if it has a vital bearing on public interest and public affairs, if it shows the commitment of a crime, it can be made public.

This is clear from even the provisions of the Right to Information Act. The section that deals with privacy talks of information that has no relation to public interest or activity. Activities such as planting stories in the media, influencing regulators and things like that clearly come within the ambit of public interest?in this case, the issue of public interest overrides the issue of privacy.

Indeed, if you are to seek the Niira Radia tapes under the Right to Information Act, this cannot be denied to you on grounds of privacy. The 104 conversations that are in the public domain can?t really be called personal in any sense of the term. The conversation that Ratan Tata is having with Radia is a purely professional one. It is in his capacity as her employer and relates to his business?there may be a few remarks made in the background but that doesn?t make the tapes personal.

Even in cases where the taps are unauthorised, the evidence is not inadmissible.

The question is raised that corporate or other rivals can misuse this. They can, for instance, convince some junior officer to trump up a charge of, say, an income tax violation, ask for permission to tap, and then release the tape under the Right to Information Act. This is a red herring. If there is no prima facie evidence before a tap is authorised, an individual can take action and even the home secretary who authorised the taps can be prosecuted. You can, if your phone is tapped, ask for the prima facie information to be made available. And in case the phone conversations do not involve any matter of public interest, you can take legal action if it is put out in the public domain.

(As told to Sunil Jain)

The author is advocate, Supreme Court

Gopal Jain

In a democratic society, everyone has the right to protect his private and family life, his home and his correspondence. There should be no interference by the public authority in the exercise of this right, except in accordance with law or in the interest of national security. Privacy right cannot be trumped, especially in an era where there has been a spate of clandestine interceptions by which information enters into the public domain even if it is improperly obtained.

If in the course of investigation, it is found that there is criminality or if the protection of confidence is outweighed by public interest, an investigating agency can resort to interception, strictly in accordance with the law. Privacy may then take a back seat but this should be a measure of last resort, an exception. Investigating agencies cannot reap the fruits of illegal tapping; evidence so acquired is in breach of constitutional rights and must be discarded.

In the present context of corruption scandals, we need a truly independent and professional investigation agency that uses lawful means to unearth the truth?which includes tapping but in the manner prescribed by law. One (tapping) cannot compromise the other (privacy). The two are distinct, and yet could overlap, as in the case of the 2G scam when what is required is a balancing of the right to privacy and an interception, which in effect is a question of proportionality.

This is illustrated in the Supreme Court judgement in the case of Auto Shankar (who was convicted of murder and sentenced to death but wrote an autobiography in jail depicting the nexus between prisoners and officers). The Supreme Court found that the right to privacy is implicit in Article 21 (right to life) and is an independent and distinctive concept that originated in tort law?a citizen can seek damages for unlawful invasion of privacy.

A recent example of over-reaching the right to privacy was the case of Rajesh Talwar (Arushi?s father), whose life was played out in public while his daughter?s murder was being investigated. This was done in the guise of public interest and without caring about his family?s privacy.

Public interest does not automatically justify clandestine recording?allegations must have a credible basis before such a drastic step is permitted. Moreover, not every gory detail should be published as that cannot be in public interest. The exception should not be used as a short cut to bypass legal processes.

On the other hand, there is the Parliament attack case where phone taps provided important evidence for conviction. In such cases, dealing with terrorist acts, there would be overriding public interest in interception that would take precedence. But this must be the exception, not the rule.

The time is ripe for a codified law (similar to the western world) to ensure that the State does not intrude upon an individual?s privacy, which is paramount and which must remain sacrosanct in a democracy like India. The right balance will give full respect to the privacy of individuals while facilitating investigations into truth, without one trampling on the other.

The author is advocate,

Supreme Court