Radia Tapes in Media

Tata’s Privacy Interest vs. Public Interest?

-Professor Madabhushi Sridhar,
NALSAR University of Law, Hyderabad

I. Introduction: Problem of Lobbyists & Manipulators

Unbelievable! Of all, Mr. Ratan Tata, $73 bn worth Tata group chief, is begging for right to
life. Invoking Article 32 to secure Article 21, he complains that his right to privacy is being
violated. Being a beneficiary in 2g spectrum allocation, which is biggest scam of independent
India, he asks Supreme Court to direct an iron veil of secrecy around Radia Tapes to stop
leaking to public through new media, i.e., Internet. It is his privacy! This nation need not
know it! It is not about his private conversation with his wife or with his standing counsel.
His PR chief Mrs. Nira Radia will have ‘private’ talk with famous journalists, news anchors,
MPs, leaders, bureaucrats about politics, business, leadership, coalition, cabinet berths,
portfolios, 2G spectrum, Raja, DMK, Congress and so on… and nothing is public affair.
Everything his PR Chief Radia speaks is private affair, corporate matter, privileged
communication, and everything is part of his ‘private life’, right to life. If these secrets are
not kept secret, he cannot survive. It spells end of life. The apex court has to protect his
right to life by securing these secrets!

Ratan Tata asserted in his writ petition filed in the Supreme Court, unauthorised publication
of his private conversations with business woman Niira Radia recorded by the Directorate-
General of Income Tax has infringed his right to privacy. He said the unauthorised
publication of a private conversation between two citizens was protected by the “right to
privacy” under Article 21 of the Constitution as the publication of such conversations could
seriously damage his reputation.

a) Reputation of Tata

Before discussing the issue in detail it is relevant to know the high reputation of Tata.

“Jamsetji Tata was a man of great achievement, far-seeing and circumspect. His
resolute will enabled him to elaborate projects which his imagination conceived upon
the largest scale. He was at once a businessman, a patriot, and a thinker, whose
service to India was as great as his love for her was profound” —- Frank Harris1

1
Frank Harris, author of “Jamestji Nusserwanji Tata, A Chronicle of His Life”, in his preface, May 1925.
 “In Indian industry the terms ‘integrity’ and ‘Tata’ are synonymous, with the result
that the House of Tata and its far flung organisation have the stamp of stability,
security and success”2

b) Petition against Tata

On the other hand senior counsel Prashanth Bhushan asked the Supreme Court not to hold
back the transcripts of corporate lobbyist Niira Radia's telephonic conversations from the
public gaze as the people had a right to know how political governance was functioning in
tandem with vested interests. Appearing in the apex court for the Centre for Public Interest
Litigation, he told the court that the intercepts were a telling commentary on how things
were done in the government. Prashanth Bhushan said that there was an attempt that
transcripts of 5,851 intercepts do not see the light of the day.3 In fact, his lobbying,
involvement, interest in securing his vested interest with leaders of coalition partners would
bring defamation, if any, more than invasion of peivacy. Privacy or secrecy is intended to
protect purely private and family details of public personalities’ reputation, not their
corruption or crime or unethical wrongs.

c) Why Tata is seeking Right to Life

After due authorization from the Home Ministry the Indian Income Tax department tapped
Radia's phone lines for 300 days in 2008-2009 as part of their investigations into possible
money laundering, restricted financial practices, and tax evasion.

Nation was shocked to see transcripts of some of the telephone conversations of Nira Radia
with senior journalists, politicians, and corporate houses, many of whom have formally
denied the allegations4. Then Central Bureau of Investigation declared that they have 5,851
recordings of phone conversations by Radia, some of which outline Radia's attempts to
broker deals in relation to the 2G spectrum sale. The tapes appear to demonstrate how Radia
attempted to use some media persons to influence the decision to appoint A. Raja as
telecom minister.

Tapping was worthy, as the CBI gained possession of more than 800 documents/files in
more than 80,000 pages. In an affidavit to the Supreme Court, the CBI said: “The exercise is
a prolonged and painstaking one and is still continuing as 5,851 call recordings, many of
them 30-40 minutes long, have to be listened to and analysed. About 3,500 calls have been
analysed and the process is going on.” It is only the tip of iceberg as we see only 104
conversations in the public domain.

The tapes revealed that Radia had frequent conversations with politicians, A. Raja, former
Telecommunication and IT Minister, Kanimozhi, Rajya Sabha MP; Journalists, Barkha Dutt,
Group editor, English news, NDTV, M.K. Venu, senior business journalist, Prabhu Chawla,
editor of India Today magazine, Rajdeep Sardesai, Shankar Aiyar, then with India Today

2
Ibid, in the jacket of the above Book.
3
News Report, Indo-Asian News Service, New Delhi, November 30, 2010
4
In November 2010, OPEN magazine

2
Group, Vir Sanghvi, HT advisory editorial director; Industry Heads, Ratan Tata, Tata Group,
Tarun Das, former CII head, (Mention of) Mukesh Ambani, Reliance Industries, and Ranjan
Bhattacharya (foster son-in-law of former prime minister Atal Behari Vajpayee), Suhel Seth,
management guru and columnist.

When the print & electronic media maintained stoic silence pretending to ignore sensational
tape tales, this news was prominently debated on social networking sites Twitter and
Facebook. It was called the barkhagate which became number one topic on Twitter in India
for more than a week. According to the Washington Post, "Twitter has played an important
role in launching what has become an international conversation on the issue, with the
Indian diaspora weighing in". It was the Fifth Estate, netizen with the web technology which
really exercised freedom of expression and kept the issue in lime light, while Fourth Estate
was blocking out the sensation involving some of its prominent faces.

d) Tata on the media frenzy

Ratan Tata came out publicly, telling how he did not get the permission to start an airlines,
because he did not want to pay a bribe. In an interview to a TV Channel5, he has described
the media frenzy over the leakage of tapes featuring conversations between Niira Radia, the
owner of a public relations agency, and prominent politicians, industrialists and journalists as
a “smokescreen” which was deflecting attention from bigger scandals.

“We have somewhat slipped into a morass of a series of allegations... unauthorised

tapes flooding... the media going crazy on alleging, convicting, executing... literally
character assassination.... I wish the government would take a stand, bring an
auditor... have an investigation and book people who are guilty of something, but
stop this sort of Banana Republic kind of attack on whoever one chooses to attack
on a basis unsubstantiated even before the person has a very Indian right, namely to
be considered innocent until found guilty in a court of law.”

After his group has got caught in this huge tape controversy, Ratan Tata, in a TV interview,
asserted about him (his group) not having used Niira Radia to make payments or to seek
favours, but the conversation proves that wrong. In the “Internal evaluation report of July
2009” phone calls, after Niira Radia’s phones had been kept under surveillance the report
states6, “ there is a long call between Mr.Ratan Tata and Mrs.Radia, which establishes that
Mr.Tata wanted to prevent Mr.Maran(Dayanidhi) from becoming the Telecom Minister at
any cost” (this tape is still not in public domain).7 In another conversation with Niira Radia8,
Ratan Tata tells Radia “I guess the only concern I have is that Maran is going hammer and
tongs for Raja. And I hope Raja doesn’t trip or slip out”. Why this corporate giant preferred
Raja to others for Telecom ministry?

5
Ratan Tata’s Interview in NDTV on 27th Nov. 2010
6
http://indiasreport.com/magazine/data/the-radia-papers-raja-tata-ambani-connection
7
see documents http://indiasreport.com/magazine/data/the-radia-papers-raja-tata-ambani-connection
8
Outlook dated Nov.29,2010

3
There was another crucial conversation between Ratnam, Chartered Accountant of Tamil
Nadu Chief Minister M. Karunanidhi’s third wife Rajathiammal, Rajathiammal herself and
Niira Radia, on June 13, 2010, more than three weeks after the UPA II Cabinet had been
formed and A.Raja had been successfully planted as the Telecom Minister and Dayanidhi
Maran, was kept out, as desired by Ratan Tata and also Mukesh Ambani, as conversations of
Radia with others clearly indicated.9

It is also reported that Tata through Voltas (a Tata group organisation) is in touch with Niira
Radia and Ratnam, CA of (Rajathi)Ammal, wife of (Chief Minister) M.Karunanidhi,. They
are apparently going to construct a building in Chennai on a land controlled by “TRIL”
(Tata Realty and Infrastructure ltd.) with the Karunanidhi family as a payoff to DMK for
keeping Maran out of Telecom(ministry).

Tata group also claimed that their dealings are most transparent, as its founder J.N.Tata had
envisaged. As per the documents of the DGIT two transactions revealed through
conversations between Niira Radia and others, including Tata (which are still not in the
public domain) shows how Radia influenced Tata to indulge in “not so transparent”
operations. One is the Rs.250 crore which Tatas have paid to Unitech10, during the time of
the 2G spectrum allocation, which has now come under a great deal of cloud. The document
states: 6. Unitech as per conversations holds TATA’s Rs.250 crore, which were organized by
Mrs.Radia. Many cheques for repayment have bounced. (This tape is not yet in the public
domain)11 In another tape, an unidentified interlocutor asks Ms Radia, why “you people [i.e.
the Mukesh Ambani group] are supporting [Raja] like anything ... when the younger brother
[Anil Ambani] is the biggest beneficiary of the so called spectrum allocation”. “Issue bahut
complex hai,” Ms Radia replies. “ Mere client Tatas bhi beneficiary rahein hain (my client,
the Tatas, have also been a beneficiary).” 12

Is this not subverting policy or trying to move policy? Now he asks Supreme Court to stop
publication of these secret conversations saying that it is part of his right to life.

II. Right to Privacy: Not to hide crimes

Privacy is for private persons and also for private affairs of public persons. It is illegal,
illogical and unreasonable for public persons to claim privacy for their public activities such
as governance, policy making, formation of ministry and politics. Privacy should not be
mistaken with secret business operations causing harm to public institutions. Once a crime is
committed, the suspicious persons need to be interrogated or investigated. Those suspected
or involved cannot claim privacy and ask for protection of their criminal secrets as privacy
saying that such privacy is part of right to life. Secret lobbying behind 2G spectrum

9
http://business.outlookindia.com/view.aspx?vname=RatnamDMK-worknotdone-20090613-
114740.wav&format=1
10
as per documents: http://indiasreport.com/magazine/data/the-radia-papers-raja-tata-ambani-connection
11
see: http://indiasreport.com/magazine/data/is-ratan-tata-as-clean-as-he-claims-why-is-niira-radia-talking-
to-karunanidhi%E2%80%99s-wife, Also see: http://ghulammuhammed.blogspot.com/2010/11/nira-radia-
and-outlook-magazines-expose.html. For further details, see: Is Ratan Tata as clean as he claims: Why is
Niira Radia talking to Karunanidhi’s wife? Article by Girish Nikam, 28th Nov. 2010
12
See The Hindu, Siddharth Varadarajan’s opinion page article, 29th November 2010

4
corruption has to be probed into. Looking into authorized recorded tapes is a required and
legitimate process and if it reveals the conversation of Tata’s people with political lobbyists,
which insist on somebody to be made Telcom minister or not to be made, it is quiet relevant
public affair and has to be probed. If these tapes are blocked, the rich and powerful brokers
would get emboldened to adjust the deals to escape from the long hands of law, which
destroys the public interest. Privacy is not secrecy for hiding unethical deals and cornering
state wealth through manipulations. If these secret unethical manipulations are supposed to
be protected under right to privacy, no investigating agency can probe into any crime
anywhere in the world.

a) Right to Reputation

If Tata, Burkha Dutt, Vir Singhvi and others who figured in Radia tapes and Radia herself
feel defamed by these revelations, they can test their right to reputation by suing publishers,
which will end up in favour of publishers. They have absolutely no case under right to
privacy as that right is available for victims of crime but not to criminals or their helpers.
The women and juvenile witnesses in any criminal case must be questioned only at their
residences, as per statutes. This is a clear recognition of the need to protect the privacy and
dignity of such people, and not of people like Rajas and Tatas.

This was rightly recognized in R Rajagopal v State of Tamil Nadu13, where the Supreme Court
held that the protection of privacy did not extend to information about a person contained
in public records including those related to investigation of crimes. The only exception to
this rule is in need for protecting the name and identity of victims of sexual offences. In yet
another case on the point, Madras High Court held that the loan defaulters had no right to
privacy and hold back the publication of their photographs in media as defaulters because
the people had right to know.14

b) Privacy: An Undefined Right

Privacy in general means the right to be let alone and its object is to protect inviolate
personality. Privacy is yet to be defined as a legal right in India. Privacy is a fundamental
human right that has been defined as the presumption that individuals should have an area
of autonomous development, interaction and liberty, a “private sphere” with or without
interaction with others and free from State intervention and free from excessive unsolicited
intervention by other uninvited individuals.15

c) International Law of Privacy

The right to privacy has evolved along two different paths. Universal human rights
instruments have focused on the negative dimension of the right to privacy, prohibiting any
arbitrary interference with a person’s privacy, family, home or correspondence, while some
regional and domestic instruments have also included a positive dimension: everyone has the
right to respect for his/her private and family life, his/her home and correspondence, or the

13
AIR 1995 SC 264
14
Mr. K J Doraiswamy vs The SBI Erode Branch and Othrs. (2006)4 MLJ 1877
15
Lord Lester and D. Pannick (eds.), Human Rights Law and Practice (London, Butterworth, 2004), para. 4.82.

5
right to have his/her dignity, personal integrity or good reputation recognized and respected.
(See the Universal Declaration on Human Rights (art. 12); the International Covenant on
Civil and Political Rights (ICCPR, art. 17); the International Convention on the Protection
of All Migrant Workers and Members of Their Families (art. 14); and the Convention on the
Rights of the Child (art. 16))

This right to protect an individual’s privacy has been enshrined in the Universal Declaration
of Human Rights, 1948 (“UDHR”) as follows: “Article 12: No one shall be subjected to arbitrary
interference with his privacy, family, home or correspondence, nor to attacks upon his honour and
reputation. Everyone has the right to the protection of the law against such interference or
attacks.”

This human right has also been articulated in the International Covenant on Civil and
Political Rights, 1976 (“ICCPR”). The obligations imposed under the ICCPR require the
State to adopt legislative and other measures to give effect to the prohibition against such
interferences and attacks as well as to the protection of this right.

The right to privacy cannot be an absolute right. The UN General Assembly Report says:
Once an individual is being formally investigated or screened by a security agency, personal
information is shared among security agencies for reasons of countering terrorism and the
right to privacy is almost automatically affected. These are situations where States have a
legitimate power to limit the right to privacy under international human rights law.16 The
Special Rapporteur in this report, recommends again that any interference with the right to
privacy, family, home or correspondence should be authorized by provisions of law that are
publicly accessible, particularly precise and proportionate to the security threat, and offer
effective guarantees against abuse. States should ensure that the competent authorities apply
less intrusive investigation methods if such methods enable a terrorist offence to be
detected, prevented or prosecuted with adequate effectiveness. Decision-making authority
should be structured so that the greater the invasion of privacy, the higher the level of
authorization needed.

III. Right to know preferred to Privacy: Law in UK

Media’s right to publish certain matters like names of accused was upheld in the general
interests of public in a UK apex court in the beginning of 2010. Under the UK Human
Rights Act 1998, article 8.1 required public authorities, including the court, to respect private
and family life. Three claimants (brothers) were designated under the Terrorism (United
Nations Measures) Order (SI 2006 No 2657) as persons whom the Treasury suspected of
actually or potentially facilitating terrorist acts. Asset-freezing orders were made against these
claimants. When the claimants challenged those orders, Mr. Justice Collins17 has passed
anonymity orders, which were continued by the Court of Appeal18. They appealed to
Supreme Court. The judgment was delivered on January 27, 2010 in In re Guardian and

16
UN General Assembly, Report of the Special Rapporteur on the promotion and protection of human rights
and fundamental freedoms while countering terrorism, Martin Scheinin, Human Rights Council, 13th Session,
28th December, 2009, A/HRC 13/37
17
The Times May 5, 2008; [2008] 3 All ER 361
18
The Times November 12, 2008; [2009] 3 WLR 25

6
Media News Ltd and Others, by Lord Phillips of Worth Matravers, Lord Hope of Craighead,
Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond,
Lord Brown of Eaton-under-Heywood and Lord Kerr of Tonaghmore. Responding to the
petitions challenging anti-terrorism asset-freezing orders, Supreme Court held that the
general public interest in publishing a report of the proceedings in which they were named
was justified curtailing their rights to private life. Anonymity orders were se aside.
One of 3 applicants Mr. Marteen lived with his ex-wife and family and was involved in daily
family life. He feared that revealing his designation might result in his own and their loss of
contact with the local Muslim community, and seriously damage his reputation in
circumstances where he had not been charged with or convicted of any criminal offence and
so could not challenge allegations against him. In Mr Marteen’s case the alleged effect on his
reputation was, he said, one of the reasons why a report that identified him would seriously
affect his private life. On that basis the report would engage article 8.1. Both articles 8 and
10 were in play and the court had to weigh the competing claims of the parties under them.
Where the publication concerned a question of general interest, article 10.2 scarcely left any
room for restrictions on freedom of expression. While Mr Marteen’s private and family life
were interests which had to be respected, publication of a report of the proceedings,
including his identification, was a matter of general public interest. The general rule, apart
from a number of statutory exceptions, was that judicial proceedings were held in public;
parties were named in judgments and their names would be given in newspaper and law
reports. Along with others he contended that the anonymity orders were necessary because
identification would infringe their article 8 rights under the European Convention on
Human Rights guaranteeing respect for their private life. The applicants claimed that the
orders interfered with their article 10.1 right; but under article 10.2 that right could be
subjected to restrictions which were prescribed by law and were necessary in a democratic
society for the protection of the reputation or rights of others, including their article 8 rights.
Article 10 arguments against an anonymity order included the importance, as a reporting
technique, of the press being able to relate stories about particular individuals, so as to
capture the attention of readers, and the public’s legitimate interest in knowing about those
challenging the 2006 Orders. At present the public were denied information relevant to the
debate on the merits of the system which was created and operated in their name.
In balancing all the factors relating to Mr Marteen’s article 8 rights and the article 10 rights
of the press, there was a powerful general public interest in identifying him in any report of
the proceedings which justified curtailing to that extent his and his family’s article 8 rights.19

a) Interface between Privacy & Media: A UK Report

A professor team studied interface between public interest, media and privacy for BBC and
other State Commissions of UK20, summed up:

19
Source: http://business.timesonline.co.uk/tol/business/law/reports/article7004733.ece
20
David. E Morrison, Michael Svennevig, The public interest, media & privacy, a report for BBC & other
British authorities, March. 2002

7
• It is clear that an individual gives up his or her right to privacy in the name of a
higher interest, and that interest is the interest of the collective, namely, when it is in
the public interest.
• The idea of privacy might be subject to change over time, but the concept of the
public interest seems effectively to be a constant.
• The degree and methods of intrusion into an individual’s privacy are held as being
dependent upon the degree of public interest. The higher the degree of public
interest, the greater the degree of intrusion permitted.
• Respondents argued a high degree of public interest had to be demonstrated for
surreptitious recording to take place, and only then when other methods of obtaining
information are not forthcoming.
• Further, surreptitious recording has to be restricted to the gathering of information
that is strictly germane to the story; it should not gather ‘collateral information’ of a
private nature. Hence, listening into phone calls that might collect information about
a person’s family, when the family is not part of the story, is not considered
permissible.
• Children are considered to have virtually inviolable rights to privacy. Only in the
most extreme cases can their privacy be intruded upon; for example, in collecting
information in relation to terrorist acts.
• The consequences of intrusion are also important: how media exposure/publication
impacts on the people concerned must be appropriate to the reason for the intrusion
in the first place.
• The idea of privacy has changed over time in somewhat similar fashion to that of
ideas concerning taste and decency. The development of a ‘surveillance society’ has
loosened expectations of privacy.
• The spread of video technologies of image capture means that people are now used
to being filmed at public gatherings. CCTV cameras – generally welcomed by the
public as a means of enhancing personal safety – are also important here. The upshot
is that the notion of the private, or where intrusion was not expected, has largely
shrunk to the home.
• At many points, in both the focus groups and in the interviews with media
personnel, the distinction between privacy and taste and decency was unclear.
Indeed, taste and decency were often seen to involve issues of privacy, and at times
the issue of privacy was really a matter of taste and decency.
• Considerable scepticism is expressed about the motives of the media in intruding
into privacy. This affects all media, but is most often reserved for the press, the
tabloid press in particular. This scepticism is widely-found among the public. It was
suggested that the media, even though they might generally be acting for the good of
the public (the public interest), often act in their own interest, that is, to gain an
audience.
• The internet is thought of as being part of the media landscape in general, but, where
privacy is concerned, is thought to be somewhat different in that the internet is not a
form of ‘open publication’. That is, one has to search out information, and know
how to search for information.

8
The report concluded with suggestion of public interest exception to privacy.

• The general public put great value and importance on media information or coverage
which promotes the general good, for the well-being of all. These include the
identification of wrongdoing and of the wrongdoers themselves, with the media
acting as guardians of shared moral and social norms. Under these conditions, and
with suitable regard to the relative severity of the individual case, individuals’ privacy
can be intruded upon – in extreme cases should be – in the name of the greater
good.21

This report mainly focused on intrusion of privacy of individuals by repetitive or over use of
private information. Its research scheme did not involve possibility of criminals and
scamsters using privacy weapon to secure their criminal secrets. When in conflict with right
to know, privacy right has to surrender to larger public interest.

IV: Developing Law of Privacy in US

In Time V. Hill,22 U. S. Supreme Court said: “The constitutional guarantees of freedom of

speech in the press, not for the benefit of the press, but in order to benefit the entire nation.
This is an interesting case where private individual’s right to privacy was in conflict with
freedom of press. The Life magazine published an article about the ordeal of a family trapped
in their own house by escaped convicts. Life claimed that the play described events that had
actually happened to the Hill family, which had in fact been held hostage several years before
by escaped prisoners. The article was inaccurate in several nondefamatory but nevertheless
deeply disturbing respects. Members of the Hill family sued for invasion of privacy under a
New York statute.

The Supreme Court's opinion in Hill built upon the 1964 decision of New York Times
Co. v. Sullivan, in which the Court had held that plaintiffs who were public officials could not
recover damages for defamation unless they could demonstrate that the defamation had
been published with actual malice, “that is, with knowledge that it was false or with reckless
disregard of whether it was false or not” (pp. 279–280). In Time, Inc. v. Hill the Court
extended the application of the actual malice rule to actions alleging that a plaintiff's privacy
had been invaded by “false reports of matters of public interest” (p. 388).

Powerful industrialists like Tata and influential communicators like Vir Sanghwi and Burkha
Dutt should understand that with great power comes great responsibility, and therefore the
freedom under Article 19 (1) (a) correlates with a duty not to violate the law.

a) Public interest prevails

If a privacy interest in nondisclosure exists, the public interest in disclosure, if any, is

weighed against that privacy interest.23 Even if the interest in protecting privacy is
21
Ibid.
22
385 U.S. 374 (1967)
23
Ripskis v. Department of Housing and Urban Development, 746 F.2d 1 (D.C. Cir. 1984)

9
substantial, the importance of the public interest must still be considered because, unless the
invasion of privacy is clearly unwarranted, the public interest in disclosure must prevail.24
The public interest considered under the Federal Freedom of Information Act's privacy
exemptions is limited to the kind of public interest for which the Act was enacted, that is,
information that does not directly reveal the operations or activities of the federal
government is outside the ambit of that public interest.25 Unless the public would learn
something directly about the workings of the government by the disclosure which is sought,
the public interest is not affected for purposes of applying the balancing test to Exemption 6
of the Freedom of Information Act. National Ass'n of Retired Federal Employees v.
Horner26; National Ass'n of Home Builders v. Norton27.The only relevant public interest in
the Freedom of Information balancing analysis is the extent to which disclosure of the
information sought would shed light on an agency's performance of its statutory duties or
otherwise let citizens know what the government was up to.28

Given that freedom of information laws have at their core the purpose of disclosure,
exemptions are strictly construed, and it has been said that the public right to know should
prevail unless disclosure would publicize intimate details of a highly personal nature.29 The
Radia tapes, so far published revealed public issue, but not an iota of personal life of
claimant Tata. There is neither ‘personal privacy’ nor ‘unwarranted invasion’.

b) Unwarranted invasion of personal privacy

Tata is correct in one aspect – there shall not be any unwarranted invasion of privacy.
However, it is doubted and disputed whether his privacy was invaded or is it warranted. The
US courts have laid down no definitive rules as to what constitutes "an unwarranted invasion
of personal privacy" within the meaning of exemption 7(C) of the Freedom of Information
Act (FOIA). Instead, they have applied a balancing test whereby the individual's interest in
maintaining his privacy has been weighed against the public's interest in disclosure Thus,
in Providence Journal Co. v Federal Bureau of Investigation,30 a FOIA action to disclose information
contained in a file of the FBI which had been gathered by an illegal electronic surveillance of
the plaintiff suspect's business office, the court held that the manner in which the
information had been obtained rendered it exempt from disclosure as an unwarranted
invasion of personal privacy. The court specifically rejected the application of a balancing
test under the circumstances involved. Noting that the information was obtained in violation
of Title III of the Omnibus Crime Control and Safe Street Act of 196831, the court explained
that this statute had the dual purpose of protecting the privacy of wire and oral
communications and delineating on a uniform basis the circumstances and conditions under

24
U.S. Dept. of State v. Ray, 502 U.S. 164, 112 S. Ct. 541, 116 L. Ed. 2d 526 (1991)
25
Hertzberg v. Veneman, 273 F. Supp. 2d 67 (D.D.C. 2003).
26
879 F.2d 873 (D.C. Cir. 1989)
27
309 F.3d 26 (D.C. Cir. 2002)
28
Office of Capital Collateral Counsel, Northern Region of Florida ex rel. Mordenti v. Department of Justice,
331 F.3d 799, 61 Fed. R. Evid. Serv. 717 (11th Cir. 2003); Edmonds v. F.B.I., 272 F. Supp. 2d 35 (D.D.C.
2003)
29
Attorney General v. Assistant Com'r of Real Property Dept. of Boston, 380 Mass. 623, 404 N.E.2d 1254
(1980)
30
(1979, CA1) 602 F2d 1010, 52 ALR Fed 173, cert den 444 US 1071, 62 L Ed 2d 752, 100 S Ct 1015,
31
18 U.S.C.A. §§ 2510-2520

10
which the interception of wire and oral communications might be authorized. The court
further explained that though Congress clearly sought to deter unwarranted invasions by
denying the perpetrators the fruits of illegal surveillance, it did not stop at the limits of the
exclusionary rule, but instead made Title III remedial by, inter alia, forbidding any disclosure
of illegally intercepted information. The court thus concluded that, in deciding that the
privacy interest of a victim of illegal electronic surveillance was too great to prevent any
disclosure at all, Congress had already balanced the same kind of factors that must be
balanced under exemption 7(C). The court noted that the exempting of information under
exemption 7(C) solely because of the manner in which the information was obtained was a
novel approach, but pointed out that the distinction between focusing on the content of
information and on the manner of obtaining it blurred when, as under the circumstances of
the present case, the very manner of obtaining information carried such a likelihood of
discovering private facts. The court specifically explained, however, that its holding did not
create a new, general exemption for illegally obtained information, but rather was limited to
the contents of wire or oral communications intercepted before June 19, 1968, by means of
an electronic, mechanical, or other device, in violation of the Constitution or federal law.

Thus, where from 1962 to 1965, the FBI conducted illegal electronic surveillance of a
suspect's business office and obtained information relating to (1) the suspect's private life
and that of his family members, (2) his dealings with public officials and public figures, and
(3) the names and code names or numbers of all FBI agents and informants, the court,
in Providence Journal Co. v Federal Bureau of Investigation32, held that all three types of information
were exempt from disclosure under exemption 7(C), the court reversing the lower court's
judgment, applied a balancing test and had concluded that the information in categories (1)
and (3) was protected, but not that in category (2). Relying on Title III of the Omnibus
Crime Control and Safe Street Act of 196833 dealing with the interception of wire and oral
communications, the court explained that Title III not only denied the perpetrators the fruits
of illegal surveillance, but also forbade its disclosure. The court declared that in deciding that
the privacy interests of a victim of illegal surveillance were too great to permit any disclosure
at all, Congress had already balanced the same kind of factors that must be balanced under
exemption 7(C).34 This means that even under strict statutory exemptions of privacy
information obtained by illegal surveillance, information about public activities can be
disclosed.

c) Nixon’s Privacy?

Like Ratan Tata, Nixon also sought to protect his tapes. However, Tata should know that
Nixon failed. Former US President Richard Nixon challenged the constitutionality of the
Presidential Recordings and Materials Preservation Act, which provided for the historical
archiving of and public access to recordings and materials made by the President during his
tenure in public office. In addressing Nixon's claim that providing public access to his White
House recordings and papers would violate his right to privacy, the Court recognized and
reaffirmed that “one element of privacy had been characterized as the ‘individual interest in

32
(1979, CA1) 602 F2d 1010, 52 ALR Fed 173 cert den 444 US 1071, 62 L Ed 2d 752, 100 S Ct 1015
33
18 U.S.C.A. §§ 2510-2520
34
52 A.L.R. Fed. 181 (Originally published in 1981),American Law Reports, ALR Federal

11
avoiding disclosure of personal matters....”35 The Court continued, recognizing that “public
officials, including the President, are not wholly without constitutionally protected privacy
rights in matters of personal life unrelated to any acts done by them in their public capacity.”36. The Court
concluded that the “tape recordings made in the Presidential offices primarily relate to the
conduct and business of the Presidency,” and that “the overwhelming bulk of the [records at
issue] pertain, not to appellant's private communications, but to the official conduct of the
Presidency.”37 Therefore, the Court concluded “only a minute portion of the materials
implicates appellant's privacy interests,” precisely because “of his lack of any expectation of privacy in
the overwhelming majority of the materials” - those that reflected on his official conduct.38
Tellingly, Nixon was cited with approval by Colorado's Supreme Court, and served as the
very foundation for its holding, in Martineli See Martinelli39.

Unless information in the government's hands is non-public and of a “highly personal and
sensitive” nature, such that its public disclosure “would be offensive and objectionable to a
reasonable person,” the disclosure of such information cannot, as a matter of law, violate an
individual's right to privacy. See Flanagan,40 (applying the first prong of Martinelli to internal
affairs file and concluding that “data in files ‘which is not of a highly personal or sensitive
nature may not fall within the zone of confidentiality”); Mangels v. Pena, 41 (rejecting a claim of
privacy in case involving an internal affairs investigation file where City of Denver had given
same assurance of confidentiality to officers as it does in all Department of Safety
investigations: “The legitimacy of an individual's expectations [of privacy] depends ... upon
the intimate or otherwise personal nature of the material which the state possesses”); Worden v.
Provo City, 42 (same with respect to police officer's suspension and reprimand: the “disclosed
matters were not of a highly personal and sensitive nature sufficient to be accorded
constitutional protection .... Accordingly, the court concludes, as a matter of law, Worden
did not have a legitimate expectation of privacy that rose to the level of constitutional
protection”).43

d) Conflict with Freedom of expression

While right to privacy of one restricts publicity by the other, free press right permits
publicity in public interest. "If a matter is determined to be of legitimate public interest, the
disclosure or publication of information about that matter is said to be privileged under the
First Amendment …(US). The public's legitimate interest in the individual to some
reasonable extent includes publicity given to facts about the individual which would
otherwise be purely private.44

35
Nixon, 433 U.S. at 457 (citing Whalen v. Roe, 429 U.S. 589, 599 (1977).
36
Nixon, 433 U.S. at 457
37
Nixon, 433 U.S. at 459.
38
Nixon, 433 U.S. at 461-64.
39
612 P.2d at 1091
40
890 F.2d at 1570
41
789 F.2d 836, 839 (10th Cir. 1986)
42
806 F. Supp. 1512, 1515-16 (D. Utah 1992)
43
Source: 2008 WL 2432136 (Colo.Dist.Ct.) (Trial Motion, Memorandum and Affidavit)
44
Nobles v. Cartwright, 659 N.E.2d 1064, 1075 (Ind. Ct. App. 1995)

12
The California court of appeals noted that public figures have less rights to prevent
disclosure than private citizens: There is a public interest which attaches to people who by
their accomplishments, mode of living, professional standing or calling, create a legitimate
and wide-spread attention to their activities. Certainly, the accomplishments and way of life
of those who have achieved a marked reputation or notoriety by appearing before the
public[, for instance] actors and actresses, professional athletes, public officers, noted
inventors, explorers, war heros, may legitimately be mentioned and discussed in print or on
radio or television. Such public figures have to some extent lost the right of privacy, and it is
proper to go further in dealing with their lives and public activities than with those of
entirely private persons. Carlisle v. Fawcett Publications, Inc.,45 wherein it was held that a person
who was married to actress Janet Leigh when they were both very young had no disclosure
privacy claim against movie magazine.

Similarly, a court found that broadcast on television of a video tape found in a priest's room
that showed the priest engaged in homosexual activity was not an invasion of privacy
because of legitimate public concern over such conduct and the District Attorney and
Catholic church's response to such actions. While the showing of the video was very
embarrassing to the priest, the court held that the public interest was controlling, noting that
the issue of whether a matter is of public concern is a question of law for the court. Cinel v.
Connick,46 (The District Attorney did not prosecute the priest for sodomy (a crime in
Louisiana) or possession of child pornography. The former priest's privacy claim was
dismissed for failure to state a claim. The video was broadcast on a local station and on a
national program hosted by Geraldo Rivera.)

As to those who are involuntarily thrust into the public eye, such as victims of crime or are
survivors of a fire or airplane crash, their "privacy" is sacrificed in favor of the public's "right
to know" as to the public event and even as to matters of their private life.

As the Restatement commented:

These persons are regarded as properly subject to the public interest, and publishers are permitted to
satisfy the curiosity of the public as to its heros, leaders, villains and victims, and those who are closely
associated with them. As in the case of the voluntary public figure, the authorized publicity is not
limited to the event that itself arouses the public interest, and to some reasonable extent includes
publicity given to facts about the individual that would otherwise be purely private.47

d) Admissibility of illegal wire tapping evidence, Olmstead Case

The US Supreme Court held that the evidence obtained by wire tapping was admissible
against petitioners48. It was claimed that Congress in Section 605 of the Federal

45
201 Cal. App. 2d 733, 746–47, 20 Cal. Rptr. 405 (5th Dist. 1962
46
15 F.3d 1338, 1346, 22 Media L. Rep. (BNA) 1945 (5th Cir. 1994)
47
Restatement Second, Torts § 652D, comment f (1977). See Friedan v. Friedan, 414 F. Supp. 77, 79 (S.D.
N.Y. 1976) (Ex-husband of feminist Betty Friedan did nothing to make himself newsworthy, but by his past
relationship with a public figure, the public figure "role has been thrust upon him." Source: J. Thomas
McCarthy, Chapter 5. A Survey of Legal Rights: the Rights of Publicity and Privacy, 1 Rights of Publicity and
Privacy § 5:77 (2d ed)
48
Olmstead v. United States, 277 U. S. 438

13
Communications Act of 1934 changed the law laid down in Olmstead and directly
prohibited the introduction in evidence in a Federal criminal prosecution of conversations
overheard by Federal agents by means of tapping telephone wires. Finally, it is significant
that the Federal courts have uniformly considered the Olmstead case controlling on the
general proposition that in the absence of legislation by Congress evidence even though
unethically or illegally obtained is admissible unless rights under the Constitution have been
invaded. Joong Sui Noon v. United States49 ; United States v. Lee Hee,50 McMann v. Engel,51 affirmed
without discussion of this point, In re Dooley,52 United States v. Fifty-Eight Drums of Material.53
The above mentioned statute subsequently passed by Congress is silent as to the
admissibility of messages intercepted contrary to its provisions.

US SC held: As Congress did not see fit to adopt the suggestion of direct legislation to make
such evidence inadmissible, we are, of course, bound to enforce the law as declared in
Olmstead case. Since there is no constitutional prohibition of their admission in evidence, it is
necessary to their exclusion that some statute must so provide. Evidently Congress did not
care for such a policy. Moreover, although the Communications Act was not the basis of the
petitions for certiorari, this Court after the Act was passed denied certiorari in two cases
upholding the admissibility of intercepted telephone messages54. And finally it may be noted
that, despite numerous State statutes prohibiting wire tapping, see Olmstead v. United States, 55
petitioners do not cite, nor have we been able to find, any case which construes such a
statute as making evidence obtained by wire tapping inadmissible.

V. Law in India: Telephone Tapping

Wiretapping is regulated under the Telegraph Act of 1885. In P.U.C.L. v. Union of India 56, the
Supreme Court recognized the fact that the right of privacy was an integral part of the
fundamental right to life enshrined under Article 21 of the Constitution. However, the right
is only available and enforceable against the state and not against action by private entities.
The Court also laid out guidelines for wiretapping by the government. The guidelines define
who can tap phones and under what circumstances. Only the Union Home Secretary, or his
counterpart in the states, can issue an order for a tap. The government is also required to
show that the information sought cannot to be obtained through any other means. The
Court mandated the development of a high-level committee to review the legality of each
wiretap.

49
76 F. (2d) 249 (C. C. A. 8th)
50
60 F. (2d) 924 (C. C. A. 2d)
51
16 F. Supp. 446, 448,
52
42 F. (2d) 562 (S. D. N. Y.)
53
38 F. (2d) 1005 (W. D. Pa.)
54
Jenello v. United States, 10 F. Supp. 751 (M. D. Pa., 1935), reversed, 78 F. (2d) 1020 (C. C. A. 3d, 1935),
certiorari denied, 296 U. S. 623, rehearing denied, 296 U. S. 662; Beard v. United States, 82 F. (2d) 837 (App. D.
C., 1935), certiorari denied, 298 U. S. 655.
55
at p. 479, note 12,
56
(1997)1 SCC 301

14
In Kharak Singh vs The State of Uttar Pradesh57 in 1962, the Supreme Court of India read the
right of privacy into the fundamental right of life and liberty guaranteed under Article 21 as a
measure of stemming the excessive intrusion of the surveillance State in the private lives of
citizens. Thereafter the apex court elevated this right of privacy to the status of a deemed
fundamental right. It is true that the protection for life and liberty and consequently privacy
under Article 21 is available to any person in India without limitations of citizenship. At the
same time we need to know that this right is not absolute as the Court declared that it might
be subject to restrictions based on countervailing State interest.

When web portal Tehelka exposed the government corruption, a debate began on the
appropriate balance between the press and personal privacy. Sting operation by Telehka's
investigative journalists covertly filming high-level officials accepting bribes and army
officers groping call girls vividly presented the corruption to the people. Questions of
privacy and public interest arose again in relation to the transcripts of tapped phone calls
released to the press in a match fixing scandal surrounding the national sport of cricket in
April 2000.

The protection of privacy under the Indian Constitution, developed through case law by the
Supreme Court, has been advanced further by the Delhi High Court’s decision to strike
down provisions criminalizing homosexual sexual conduct on grounds of invasion of
privacy58. It can be restricted on the basis of compelling public interest.59 The apex court,
however, has limited to personal intimacies of the family, marriage, motherhood, procreation
and child bearing60. The SC said in Naz foundation case:

The sphere of privacy allows persons to develop human relations without

interference from the outside community or from the State. The exercise of
autonomy enables an individual to attain fulfillment, grow in self-esteem, build
relationships of his or her choice and fulfill all legitimate goals that he or she may
set.61

This is the real scope of privacy and this space of Ratan Tata and his legitimate interests are
not invaded by publication of tapes.

a) Nation’s Right to know

The Supreme Court has held that a citizen has a right to receive information, derived from
the concept of freedom of speech and expression comprised in Article 19(1)(a).62 In Raj
Narain case SC ruled: “the people of this country have a right to know every public
act….state function. In SP V. Union of India, it said “no democratic government can exist
without the responsibility and the basic postulate of accountability is that people should have
information about the functioning of power.”

57
AIR 1963 SC1295
58
Naz Foundation v Government of NCT of Delhi WP(C) No.7455/2001 (2 July 2009)
59
Govind v. State of M.P. (1975)2 SCC 148, AIR 1975 S.C. 1378
60
P.U.C.L. v. Union of India (1997)1 SCC 301, AIR 1997 S.C. 568
61
WP(C)7455/2001] Page 39 of 105
62
(State of U.P v Raj Narayan (1975) AIR 1975 SC 865; P.V.Narsimha Rao v State (1998) AIR 1998 SC 2120).

15
After privatization and globalization, the need for right to know the activities of corporate
giants in clandestine association with rulers, has enormously increased.

b) Privacy under Information technology Act

The ITA was enacted to provide a comprehensive regulatory environment for e-commerce.
In connection with the right to privacy on the Internet, it is pertinent to examine Section 69
and Section 75 of the Act. Section 69 is similar to the provision of Section 5 (2) in the Indian
Telegraph Act, 1885 and empowers the Controller to direct any agency of the Government
to intercept any information transmitted through any computer resource, and requires that
users disclose encryption keys or face a jail sentence up to 7 years. Section 72 on the other
hand is the only express provision in the act connected with privacy and breach of
confidentiality. It provides that any person who discloses the contents of any electronic
record etc. without the consent of the person concerned shall be punished with
imprisonment for a term which may extend to two years, or with fine which may extend to
one lakh rupees, or with both.

c) Privacy vs Right to Information

Unwarranted invasion of privacy is the exception to right to information as per section 8 of

Right to Information Act, 2005, that means a required or warranted invasion is welcome to
enforce right to know. Supreme Court judges' assets case, the Delhi High Court held that
personal information related to the performance of the public duties by public officials does
not receive the same level of protection as that of private individuals who do not perform
such duties63.

In Peoples Union for Civil Liberties (PUCL) v. Union of India,64 P. Venkatarama Reddy J.
observed: By calling upon the contesting candidates to disclose the assets and liabilities of
his/her spouse, the fundamental right to information of a voter citizen is thereby promoted,
when there is a competition between the right to privacy of an individual and the right to
information of the citizens, the former right has to be subordinated to the latter right as it
serves larger public interest.

The RTI Act section 4 requires the monthly salary and the entire compensation package
given to public officials to be proactively disclosed to people through websites. A critique
Venkatesh Nayak rightly observed that “the law on privacy should not become an excuse for
rolling back this important gain ( right to information) at a time when corruption has
become endemic in the bureaucracy. If anything, there is a need for adopting a special law
requiring all public servants, including members of the judiciary; to publicly disclose their
assets and liabilities…..Privacy protection cannot be traded off against transparency which is
yet to be firmly institutionalised under the RTI Act. Civil society needs to engage with the
Government more vigorously to ensure that the proposed data protection regime supports

63
The CPIO, Supreme Court of India vs Subhash Chandra Agarwal, WP(C) 288/2009
64
AIR 2003 SC 2363

16
greater transparency and accountability in the public and private spheres. Nothing less will
be acceptable”.65

d) Overwhelming Public Interest

With these public interest exceptions controlling the right of privacy, which is yet take a firm
shape, it is doubtful as to entitlement of Tata to block out the tale telling tapped tapes vis-à-
vis their disclosure in public interest. It is pertinent note that several eminent lawyers
expressed opinion that Tata’s claim of privacy has to be tested against overwhelming public
interest. “This is not about Mr Tata’s right to privacy, but about Ms Radia’s activities,” says
lawyer Dushyant Dave. “There is a fine balance between the right to privacy and the public’s
right to know. But if the information is of vital public interest, that trumps the right to
privacy,” he adds. Advocate Mahesh Jethmalani has a similar view. “If the phone tap is
legitimate and authorised, then the right to privacy must succumb before the overwhelming
public interest,” he says. Lawyer and legal scholar Rajeev Dhavan points out that there are
two issues with the right to privacy. “First, if something is already in the public domain there
is no question of restraining its publication. Second, while someone may claim privacy or the
need to safeguard commercial interests, this is overridden if the information is in the public
interest.” Then there is the issue of who’s responsible for the leak. According to Jethmalani
if a public official has leaked the documents, then it may be a case of breach of trust, since
he or she could be in violation of their professional responsibilities. “However a journalist
who gets the information and publishes it can claim the public interest as a defence,” he
adds.

Jurist, Member of Parliament and national spokesperson of the Congress, Abhishek Manu
Singhvi says: “Rights under the Indian Constitution are not absolute. Privacy, though
traceable to the right to life under Article 21, is always liable to be hedged in by reasonable
restrictions – for example in the interests of national security, or the prevention or solution
of crimes.” So how does one decide where privacy ends and public interest begins? “It is
crucial that citizens, regulators, the police and courts follow a balancing approach based on
the nitty gritty facts of a particular case – generalizations without reference to facts are
bound to be inaccurate,” says Singhvi.66

VI. Conclusion: Legal principles of disclosure

From various jurisdictions and judicial decisions, following principles can be inferred.
Telephone tapping is held constitutional if ordered according to a prescribed procedure. (SC
judgment in PUCL Case) Information obtained by authorized telephone tapping is not illegal
information. If such information discloses clues and evidence of a crime or scandal, they
have to be pursued. (Investigation in public interest to protect public property)

Right to privacy is available against the disclosure of information about private or personal
life of the public or private person. Protection under privacy cannot be extended to criminal
activities, conspiracies and attempts to manipulate political and governance related policies.

65
http://www.thehoot.org/web/freetracker/story.php?storyid=149&sectionId=62
66
Source: Economic Times news report by AVINASH CELESTINE,ET BUREAU , 2nd December. 2010

17
Disclosure of Public information in the hands of Government is matter of state duty and
right of citizen. (Right to know as part of right to life and Right to Information Act, 2005)

The protection for private information from disclosure is not available if there is
overwhelming public interest in disclosure. Overweighing public interest in non-disclosure
should be proved for not considering public interest in disclosure. In such conflicts privacy
is not prime concern. If a privacy interest in nondisclosure exists, the public interest in
disclosure, if any, is weighed against the privacy interest.

Unless information in the government's hands is non-public and of a “highly personal and
sensitive” nature, such that its public disclosure “would be offensive and objectionable to a
reasonable person,” the disclosure of such information cannot, as a matter of law, violate an
individual's right to privacy. Even if the interest in protecting privacy is substantial, the
importance of the public interest must still be considered because, unless the invasion of
privacy is clearly unwarranted, the public interest in disclosure must prevail.

Given that freedom of information laws (US) have at their core the purpose of disclosure,
exemptions are strictly construed, and it has been said that the public right to know should
prevail unless disclosure would publicize intimate details of a highly personal nature67. The
courts have laid down no definitive rules as to what constitutes "an unwarranted invasion of
personal privacy" within the meaning of exemption 7(C) of the Freedom of Information Act
(FOIA)

The doctrine laid down in the Olmstead68 case is that since wire tapping does not violate the
Constitution, evidence so obtained is admissible under the common law of evidence no
matter how illegally obtained. It is significant that the US Federal courts have uniformly
considered the Olmstead case controlling on the general proposition that in the absence of
legislation by Congress evidence even though unethically or illegally obtained is admissible
unless rights under the Constitution have been invaded.

Nation has a right to know and justice demands all secrets to be disclosed and be used as
evidence to prove corruption of these manipulating lobbyists, industrialists and media
persons are no exceptions. It is in fact not the privilege of media to report but its obligation
to inform the people to enforce their right to know.

Facts against Big and Famous

Telephone tapping has been done after due authorization. The IT department or any
other authority is not allegedly involved in disclosure or leakage. It is not known as
to who copied and leaked the tapped phone conversations. Even if cause is
negligence, it has to be proved. If proved, claimants can get damages. But its
publication cannot be blocked on the grounds of apprehension of invasion of
privacy.

67
Attorney General v. Assistant Com'r of Real Property Dept. of Boston, 380 Mass. 623, 404 N.E.2d 1254
(1980).
68
Olmstead v. United States, 277 U. S. 438

18
Publication of Radia tapes not aimed at any individual industrialists or intended to
invade privacy of newspersons or politicians. It is a revelation that some bigwigs
including them were referred to and heard in these conservations.
Under no stretch of imagination the issues discussed or sought were not about
personal or private or family matters of individuals involved in conversations. They
are public matters, public activities such as coalition politics, cabinet portfolio
allocations, distribution of public wealth (2g spectrum, or natural gas in Krishna
Godavari Basin) running to the tune of lakhs of crores of rupees which belong to
sovereign people at large.
Though third wife, son, daughter and other relatives of DMK President are referred,
it is not private family affair but about national coalition. It is unfortunate that we
have to discuss families to know about politics in this country.
More over the whole issue is about the biggest scandal wherein corrupt motives
dominate over collective responsibility of coalition cabinet. Prime Minister appeals
or suggests to junior minister Raja and when the later simply ignores and rejects it,
the PM leaves it to the fate of Indians and continues to rule while that decision of
junior minister ruins this country.
Such issues forming part of tapes of tapped phones of big public persons are
substantial issues of governance pertaining to rule of law and the Constitution that
has been desecrated and violated with all impunity by the cabinet, industrialists
including petitioner Tata, a section of Media bearing big names willingly becoming
tools (a disgrace to Fourth Estate in fact) in the hands of a professional lobbyist
working in the garb of PR official (a shame to profession of public relations indeed).
This information in the government's hands is public and not of a “highly personal
and sensitive” nature, such that its public disclosure “would be offensive and
objectionable to a reasonable person,” the disclosure of such information cannot, as
a matter of law, violate an individual's right to privacy.
If the conversations lead to find that ultimately some bigwigs were benefited at the
cost of this nation, it will be treachery of nation which is not defined as a crime in
Indian Penal Code, as authors of IPC 150 years ago failed to visualize emerging of
great industrialists planning to grab national wealth through lobbying.
Even if we assume for a moment that privacy of Tata is invaded, (which never
happened) that invasion was committed by Niira Radia and others who willingly
served interests of these industrialists rather than the nation, a shame again. Hence
Tata has to try whether he has a cause of action against them and certainly not
against the highly inactive government which does not even know what is happening
even after CAG reported the serious proportion of gigantic scam.
Assuming for a moment that his privacy is invaded (which did not happen) its
disclosure is highly warranted in public interest. It is a fit case where nation has a
right to know other unrevealed tapes of tapped phones to go to the roots of 2G
scam, KG Scam etc. The people of this Nation has every authority to demand its
representative government to continue to tap all these corporate or industrialists
who are targeting national wealth under ground (KG) and in the space above (2G),
and to catch dacoits of gas and spectrum and produce them alive before the
Sovereign “We the people..”.
More important is that certain conversations reveal that they have scant regard for
higher courts and confident of securing any favourable judicial process or order. This
is in fact the contempt of court, and this is where power to punish that contempt

19
 need to be used. It is another aspect which disproves the claim that what was being
discussed was not privacy but contempt of court.
The clues and evidence thus obtained by authorized tapping of phones could be used
and adduced as admissible evidence of guilty in these scams.
It is high time that people centric media, other than those high profile persons
serving Radia and her clients, to engage in string operations to catch hold of dacoits
of national wealth since the law can support admission of evidence obtained by
illegal tapping also.

(7.12.2010)

20