Right to privacy II---Tata’s privacy claim specious
When former US President Richard Nixon sought protection against public exposure for the crimes he committed when in office, the court ruled against him.
MADABHUSHI SRIDHAR argues that Ratan Tata, being in the public sphere, is in a similar position. Pix: Ratan Tata
When more than 40 crore people living below poverty line cannot afford to seek right to life in the Supreme Court, Mr. Ratan Tata, the $73 bn worth Tata group chief, is seeking to enforce his right to life! He complains that his right to privacy is being violated. He wants an iron veil of secrecy around the Radia tapes. His lobbyist, Niira Radia’s communications with famous journalists, news anchors, MPs, leaders, bureaucrats about politics, business, leadership, coalition, cabinet berths, portfolios, 2G spectrum, Raja, DMK, Congress and so on are `private’ according to him. Tata should learn from millions in India who struggle for right to life without any privacy. He also should know how former US President Nixon claimed privacy for his tapes and failed.
The tapes, in the face of the failure of the first four estates, are a triumph for the fifth estate – the social forum that straddles the world of netizens. It is a forum that has enforced Articles 21 & 19, which insist on a `right to know’.
After due authorization from the Home Ministry the 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. 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 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.
In one of the tapes, an unidentified interlocutor asks Ms Radia, whose clients include Tata and Mukesh Ambani, 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," Radia replies. "Mere client Tatas bhi beneficiary rahein hain (my client, the Tatas, have also been a beneficiary)."
There was another crucial conversation between Ratnam, Chartered Accountant of Tamil Nadu Chief Minister M. Karunanidhi’s third wife Rajathiammal, Rajathiammal herself and 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.
There was another crucial conversation between Ratnam, Chartered Accountant of Tamil Nadu Chief Minister M. Karunanidhi’s third wife Rajathiammal, Rajathiammal herself and 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.
It is also reported that Tata, through Voltas (a Tata group organization), was in touch with Radia and Ratnam, CA of (Rajathi) Ammal, wife of Karunanidhi. Along with the Karunanidhi family, they are apparently going to construct a building in Chennai on a land controlled by "TRIL" (Tata Realty and Infrastructure ltd.) as a payoff to DMK for keeping Maran out of the telecom ministry.
Nixon’s Privacy?
Like Ratan Tata, former US President Richard Nixon had 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 avoiding disclosure of personal matters...." 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." The Court concluded that the "tape recordings made in the Presidential offices primarily related to the conduct and business of the Presidency," and that "the overwhelming bulk of the [records at issue] pertain, not to the appellant's private communications, but to the official conduct of the Presidency."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.
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,(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") The US Supreme Court held that the evidence obtained by wire tapping was admissible against petitioners
With these public interest exceptions controlling the right of privacy, which is yet to take a firm shape as a right, it is doubtful as to the entitlement of Tata to block out the tale telling tapes.
(Coordinator, Center for Media Law & Policy, NALSAR University of Law, Hyderabad)
I. See The Hindu, Siddharth Varadarajan’s opinion page article, 29th November 2010
II. http://business.outlookindia.com/view.aspx?vname=RatnamDMK-worknotdone-20090613-114740.wav&format=1
III. Nixon, 433 U.S. at 457 (citing Whalen v. Roe, 429 U.S. 589, 599 (1977).
III. Nixon, 433 U.S. at 457 (citing Whalen v. Roe, 429 U.S. 589, 599 (1977).
IV. Nixon, 433 U.S. at 457
V. Nixon, 433 U.S. at 459.
VI.Nixon, 433 U.S. at 461-64.
VII. 890 F.2d at 1570
VIII. Olmstead v. United States, 277 U. S. 438