Where does public interest begin and an individual's right to privacy end?
The question is being asked following the publication of transcripts of telephone conversations of lobbyist Niira Radia with certain politicians, corporate leaders and journalists.
On Monday, Tata Group Chairman Ratan Tata moved the Supreme Court to protect his right to privacy as his conversations with Radia, whose PR firm handles corporate communications for the Tatas, were splashed across at least two national magazines.
Right to privacy
In India, the right to privacy is not recognised as a separate constitutional right. However, in various judgments, the Supreme Court has held that the right to privacy is included in the fundamental right to life and personal liberty recognised under Article 21 of the Constitution.
This right is not absolute and can be curtailed, but only "according to procedure established by law".
The Supreme Court has held that right to privacy extended to telephone calls as "conversations on the telephone are often of an intimate and confidential nature". Tapping telephones, thus, is a contravention of Article 21 of the Constitution, subject to certain exceptions, unless the procedure established by law is followed.
Case by case basis
However, whether the right to privacy has been violated in a particular case would depend on the facts of the individual case and there is no blanket law or provision that covers all such cases.
Commenting on the Tata case, senior advocate Harish Salve said: "The police have the right to secretly record my telephonic conversations for investigation of a crime. But that does not mean that you can put my private conversation with my wife on websites."
Investigation of crime
It is a well settled legal position that law enforcement agencies have the right to secretly record private conversations of individuals for crime prevention, detection and investigation, provided they do it in accordance with the procedures established by law.
In fact even Tata has not disputed this in his petition. What he has questioned is the leaking of the tapes of the "private" conversations he had with Radia on the ground of violation of his right to privacy.
In India, telephone tapping is governed by the Indian Telegraph Rules, 1951 that was amended to add some new provisions after the Supreme Court directed the authorities to strike a balance between the need for investigation and the right to privacy as also to check unauthorised interception of conversations.
The rules make it mandatory for the officers authorised to intercept any messages to maintain proper records of the same. These include keeping records of the names of all those to whom the intercepted material has been disclosed, the number of copies made of the intercepted messages, the period during which the authorisation to tap remained in force and the date of destruction of the tapes/CDs, transcripts, etc.
The rules also put some obligation on the service providers who are bound to maintain secrecy and destroy the recordings and transcripts pertaining to the interception within a stipulated time.
In February 2006, CDs of former Samajwadi Party leader Amar Singh's conversations with his party chief Mulayam Singh, film stars and businessmen were distributed to the media. These recordings were made without authorisation.
The Supreme Court passed an order banning the publication and broadcast of taped telephonic conversations of any person if done illegally. The order is still in force.
As the government orders a probe into the leakage of Radia tapes, several crucial questions demand answers.
Can investigating agencies make public an individual's private and personal conversations recorded during a probe authorised by law?
The question becomes more complicated when the conversation contains derogatory and defamatory references to third parties who had nothing to do with the alleged crime under investigation.
Are the probe agencies obliged to keep secret the tapes/CDs of conversations – at least those parts that are private in nature – tapped during an investigation?
Said advocate Prashant Bhushan, who is representing the Centre for Public Interest Litigation in the 2G-spectrum case in the SC: "There are no private conversations or professional conversations. The case involves fixing government policies and planting stories in the media by Radia in the interest of her clients…and in any case public interest is paramount and it would override any privacy interest."
"Privacy cannot be treated as an omnibus rule. At the core of it lies a person's body and home, which is subject to search and seizure – an invasion authorised by law. Beyond that, even confidential business and other discussion have to yield to larger public interest," added noted jurist Rajeev Dhavan.
Making a case for transparency in public life, Dhavan said: "In the Spycatcher case (a case where English courts upheld a government ban on a book alleging that the head of British military intelligence and some other senior people were Russian spies), the English media rightly chastised even judges who upheld censorship of what was already in the public domain by calling them fools. Any prior restraint (on publication of the contents of the Radia tapes) by courts in this case would invite the death of democratic discourse."
But Salve felt that there cannot be public interest in somebody's private conversations. "You can't make India a banana republic," he said.
The bottom line
The divide, then, is quite clear.
So is the law: private conversations can be tapped in public interest but only in accordance with the law.
But such recordings can be used only for the purpose of authorised investigations, revealed only to persons authorised by law to have access and then destroyed also in terms of set procedures.
Any deviation from these principles is not permitted.
But that still doesn't clarify the grey areas: since each breach of privacy case is unique, the authorities and courts have to deal with them on a case-by-case basis.
And this can lead to decisions that aggrieved persons can consider arbitrary.
"As a general rule, public interest would override the privacy argument. But in some exceptional cases, you may have to accept the privacy plea," said eminent lawyer Ram Jethmalani.