Why Ratan Tata is wrong about privacy: Part I – background, facts, and issues

Background

The Supreme Court of India is soon expected to deliver its judgment in the matter of Ratan Tata v. Union of India WP (Civil) 398 of 2010. There are several important issues that concern privacy and free speech that are tied to this case. In these posts, I will briefly examine the following selected issues: (a) the duty of confidentiality in respect of telephone intercepts; (b) the right of the press to publish private material in the public interest; and, (c) the right of the public to know of impropriety. This first post will set out the facts upon which the law is being argued.

At the outset, these posts are not intended to prejudice or interfere with the course of the Ratan Tata matter, nor are they reports of those proceedings. Some of the issues that are being argued before the Supreme Court, for instance – the legal contours of privacy and free speech, are independently important in their own right, and are being debated around the world. Traditionally, common law contempt only applied to protect juries from interference, judges are presumed to be immune to influence. In India, the Supreme Court’s tradition of judicial independence is one of the pillars of India’s continued democratic existence.

The Ratan Tata matter deals with the authorised interception of Niira Radia’s telephone conversations and the subsequent unauthorised disclosure of those transcripts. It has acquired political colour from Ms. Radia’s alleged proximity to powerful political leaders and the controversy generated by the government’s irregular sale of 2G spectrum.

However, the origins of Ms. Radia’s telephone intercepts have nothing to do with spectrum regulation; they were initiated in August-September 2008 when the Union Home Secretary authorised the Central Board of Direct Taxes (CBDT) to intercept nineteen telephone lines of Ms. Radia and her companies. Just three years earlier, in December 2005, the Ministry of Home Affairs authorised the CBDT to intercept telephone messages under section 5(2) of the Indian Telegraph Act, 1885 (“Telegraph Act”).

In late 2009, after several consecutive renewals of the interception authorisations by the Union Home Secretary, the CBDT shared some of the intercepted information with other law enforcement agencies. Thereafter, the Central Bureau of Investigation (CBI) requested access to the entire archive of intercepts – around 5800 calls from 20 August 2008 till 9 July 2009, which were given in 2010.

The Radia Tapes

On 28 April 2010, Pioneer reported (subsequently taken down after the threat of legal action, but available on the blog of the special correspondent under whose byline the expose was published) that Ms. Radia’s telephone intercepts revealed criminal culpability on the part of the national telecom minister. The government issued a denial, which was silent on the question of Ms. Radia’s telephone interception.

On the same day, in Chennai, the then opposition leader in the Tamil Nadu Assembly, J. Jayalalithaa publicly released a fourteen-pages document of secret governmental correspondence and reports that reveal the intersection of the CBI’s investigation of corruption and the CBDT’s interception of Ms. Radia’s telephones. The entire document was published in The Hindu the next day, but taken down soon after.

From April to November 2011, the political scandal that erupted in relation to the 2G scam overtook developments in relation to the Radia telephone intercepts, although the two issues are linked. The Prime Minister had an unconvincing press conference. The Centre for Public Interest Litigation (CPIL) and Subramanian Swamy both moved the courts: CPIL first moved the Delhi High Court seeking a court-monitored investigation, lost, and appealed to the Supreme Court; and, Subramanian Swamy directly moved the Supreme Court seeking sanction to prosecute the telecom minister.

On 15 November 2011, CPIL introduced in the Supreme Court a CD containing transcripts of a few intercepts of Ms. Radia’s telephones. On 18 November 2010, Outlook uploaded audio copies of 140 intercepted conversations to its website. On the same day, Open also published an expose containing transcripts of certain intercepts and uploaded audio copies to its website.

Ratan Tata’s writ petition

On 26 November 2010, Ratan Tata, then chairman of the Tata group, whose conversations with Ms. Radia were also recorded during the telephonic interceptions and subsequently leaked, petitioned the Supreme Court for a writ of mandamus to reverse the publication by Outlook and Open of the Radia telephone intercepts, and to restrain any further publication of the intercepts by other press and media houses.

Without attempting to report on the proceedings of the Supreme Court, it is important to note that Mr. Tata’s pleadings have been inconsistent. In the main writ petition, Mr. Tata pressed a simple privacy violation claim that would, if upheld, necessitate the magazines’ reversal of publication of the relevant Radia telephone intercepts pertaining to Mr. Tata. In an additional affidavit filed a few months later, Mr. Tata abandoned the preceding argument to concede that the news media had a free speech right to publish investigative reports in the public interest; instead, the main argument was of statutory negligence on the part of the government for failing to ensure the confidentiality of the recorded telephone intercepts. However, in a later supplementary affidavit, Mr. Tata renewed his attack on the news media by re-claiming his right to privacy and denying the magazines’ right to publish the recorded telephone intercepts.

Issues

Whichever way the Supreme Court goes, the Ratan Tata case will add to India’s case law on the limits of communications privacy. It is good to see the Supreme Court hear arguments from a petitioner with a clear cause of action that has a direct and proximate nexus with the claimed writ relief. This is not to deny the merits of Indian public interest litigation; but, I do believe that an enforceable standard of privacy protection will offer Mr. Tata, and indeed future claimants, a better solution than pure declaratory relief. In this sense, Ratan Tata will hopefully show the way forward from the landmark 1996 judgment in People’s Union for Civil Liberties (PUCL) v. Union of India (1997) 1 SCC 301, which first declared that a right to privacy inhered in telephone conversations.

These are the primary questions that arise in this case:

  1. Whether rule 419A of the Indian Telegraph Rules, 1951 imposes a statutory duty of confidentiality upon the state (in this case, the Central Government acting through the CBDT) to maintain the secrecy of intercepted telephone messages;
    • If not, whether the state was under a common law duty of confidentiality in respect of the recorded telephone intercepts;
  2. Whether the right of the press to publish information under Article 19(1)(a) of the Constitution extends to confidential material, the disclosure of which is in the public interest;
    • If yes, does this right outweigh the right to privacy that inheres in telephone communications under PUCL that has already been statutorily deprived by the state;
    • If not, does a person whose right to privacy has been validly deprived by the state have a maintainable right of action against the press if the confidential information was innocently received;
  3. Does the public have a right to know of improper and illegal actions of the state’s agents including evidence of corruption;
    • If yes, does this right outweigh the impositions of the Official Secrets Act, 1923?

There are also several secondary, but not unimportant, issues that Ratan Tata may consider. These are: (i) the advisability of the telephone interception power being available to tax authorities; (ii) the practice of continuous renewals for telephone interceptions stretching into many years; (iii) the absence of records of the statutory Review Committee under rule 419A of the Telegraph Rules; (iv) the absence of statutory state liability for privacy breaches, including individual penalties; (v) the limits of the use of the public right to privacy against private persons; (vi) the liability of whistle blowers, including those whistle blowers who work in law enforcement agencies who disclose sensitive information in the larger public interest; and, (vii) the limits of public interest journalism.

In the next post, I will look at the duty of confidentiality in respect of telephone intercepts.

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