Tap but don’t Tell

This is a portrait of Mr.Ratan Naval Tata made...

Having studied the tardy enforcement of privacy laws it did not shock or surprise me that several taped conversations of Ms. Nira Radia found their way into two recent issues of Open and Outlook magazines. These conversations are in reference to various political and corporate disputes and raise issues of public importance such as media independence, corporate lobbying, influence in cabinet formation etc. Many say they serve the cause of transparency and some say that they chill the wine of titillation. Whatever may be the overarching social effects and the relevance of the transparency vis-à-vis privacy argument (I try will try to write about it next week), this blog post confines itself to a discussion on legal issues on the Petition filed by Mr. Ratan Tata under Article 32 of the Constitution of India before the Hon’ble Supreme Court.

The background to the petition is the publication of a conversation between Mr. Ratan Tata and Ms. Nira Radia by the magazines. The conversation is in reference to the government policy on telecom licenses. Annoyed by the publication of these conversations and the availability of the taped audio files on the websites of the magazines, Mr. Rata Tata has approached the Supreme Court on 02.12.2010 alleging that the unauthorized leakage as well as the publication amounted to a breach of his privacy. This post offers some comments on the legal proceedings.

Nature of the proceedings: keeping it sharp

The starting point for the discussion is that the legal proceeding which has been instituted is a Writ Petition (numbered as 398 of 2010) filed under Article 32 of the Constitution of India alleging a breach of the right to privacy. The remedy which is available under Article 32 allows a person to directly approach the Supreme Court when there is a violation of a fundamental right. Though the right to privacy is not expressly contained as a fundamental right under the Indian constitution the Supreme Court of India has read it under the Right to life under Article 21 in kharak singhs case and has been applied in the context of telephone tapping by the 1997 decision rendered in the PUCL case . It is pertinent to note that the Petition does not challenge the right to tap phones or even the exercise of the right in the case. One can immediately sense that this has done to improve the chances of the maintainability of the petition since an Article 32 writ is generally considered an extraordinary remedy not readily granted by the Supreme Court. Here by narrowing the scope of the petition through wholly accepting the legality of the procedure for tapping and agreeing with the exercise in the specific case the petition avoids a tough battle with the established dicta flowing from the PUCL case. It is also interesting that coupled with the direct reputational harm which is in issue here, Mr. Tata has also made arguments as to an economic harm which is resulting to the many TATA companies due to the unauthorized publication. This is not the first time an argument has been made linking the privacy breach to economic harm, which was discussed at length in the Delhi High Court decision in LNG Petronet.

Objective of the proceedings: prohibition of future publication

One may ask, if telephone tapping is not the issue then what is? I sense it is placing a prohibition on future publication of tapes which are still private. News reports suggest that there exist over 5,000 hours of taped conversations out of which only 17 hours (140 hours) have been leaked and subsequently published. Hence, when the petition seeks to, (a) institute an inquiry into the manner in which the recordings were released; and (b) asks for the prohibition on further publication, it seeks to stem a flow of any further recordings to the media. This becomes quite clear if one reads the Order passed by the Hon’ble Supreme Court of India on 02.12.2010 (a copy of the order is embedded below).

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The Supreme Court in making its Order also arraigns Outlook and Open magazines as a party to the petition and impleads them as respondents. Looking at recent precedent, especially the Order dated 27 February, 2006 passed by the Hon’ble Supreme Court in Amar Singhs Case, the operative portion of which reads as,

6. Having regard to the facts and circumstances, we direct that electronic and print media would not publish/display the unauthorizedly and illegally recorded telephone tapped versions of any person till the matter is further heard and guidelines issued by this Court.

The Supreme Court would be inclined to grant the reliefs which are requested in the petition.

Takeaways from the Case

The Rata Tata petition is quite simply not about enlarging the substantive right to privacy but instead about enforcing existing safeguards. There are already provisions in the rules of the Indian Telegraph Act which envisage for review committees on tapping orders, confidentiality and the destruction of the information gathered. However, as with most rules, it is the enforcement which remains the issue. The Ratan Tata petition in a lot of ways will help the enforcement of these rules. In a time and age, where there is an undercurrent thought or perhaps an expectation that our phones may be tapped or conversations are eavesdropped, the least one can expect is that they are not excerpted and published for the world to read.

(It appears that Outlook has 800 new “radia tapes” in its possession and has started publishing them online. Even though there is no prohibitory order on the publication of the tapes as on date, in my humble opinion publishing them right now would be flying a little to close to the sun as judicial notice has been taken on the matter. I anticipate Outlook’s defense to be that, (a) no prohibitory order is placed on them as on date of the publication; (b) the petition relates to the personal privacy right of Mr. Ratan Tata and not Ms. Radia, hence the petition cannot be made as a proxy for her. I am also concerned with the timing of the publication, done on a weekend making obtaining a stay order difficult. Also the next date of hearing (13.12.2010) of the petition is just 2 days away.).

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