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Published on Tue, Nov 30, 2010
Ratan Tata has filed a writ petition in the Supreme Court to seek appropriate directions from the court for protecting his fundamental right to privacy. This follows magazines reporting leaked conversations between Mr Tata and Nira Radia of Vaishnavi Corporate Communications, the agency that handled public relations for the Tata Group. Tata's petition says taping of conversations should be used for investigations only and cannot be used for 'unauthorised publication'.
Prashant Bhushan and Dushyant Dave, both Supreme Court advocates in an exclusive interview with CNBC-TV18’s Menaka Doshi, debated on the issue of privacy and whether Mr Tata's move to go to court was justified.
Prashant Bhushan and Dushyant Dave, both Supreme Court advocates in an exclusive interview with CNBC-TV18’s Menaka Doshi, debated on the issue of privacy and whether Mr Tata's move to go to court was justified.
Below is a verbatim transcript. Also watch the accompanying videos for the complete interview.
Q: Ratan Tata, in his interview with Shekhar Gupta of the Indian Express, spoke about and I quote ‘how the government has been given a special right to be able to invade people’s privacy for national security or for enforcement of law. So they can do so. That additional power is a very special power which has to be exercised with a sense of responsibility. The content needs to be held for prosecution purposes and not to be misused and certainly not to go out and have a field day with.’ In his writ petition, he has asked for the media publication of the tapes to stop. What do you think - do you think that Mr Tata is justified in his right to ask for privacy?
Bhushan: Firstly the conversations which have come out in the public domain are not private conversations. They are conversations between Nira Radia with various public servants, with various journalists etc in her official capacity as a paid professional lobbyist and fixer for her principles.
Therefore, there is hardly anything personal in these conversations. These are all professional conversations or conversations about deal making, fixing, subverting public policy etc.
These conversations would be available to every citizen even under the Right to Information Act because the only objection that one could raise would be on the ground of 81(J) of the Right to Information Act which says - information which relates to personal information, the disclosure of which has no relationship to any public activity or interest. This information has relationship to public activity or interest.
It also says - or which would cause unwarranted invasion of the privacy of the individual unless the public authority is satisfied, unless the information officer is satisfied that the larger public interest justifies the disclosure of such an information. In this case there is overwhelming public interest which warrants the disclosure of this information because this shows all kinds of deal making, fixing going on.
Q: Do you believe that there is overwhelming public interest or is it partially voyeuristic interest as well in some of these conversations. Secondly, even conversations today, do have public interest, are you not concerned with the fact that they were in fact conversations recorded or taped into by the income tax department for a separate investigation. They have somehow leaked which speaks very poorly of an investigating agency and now select conversations have made their way to the media?
Dave: This is a very serious issue even from the point of view of public interest or even from the point of view of Mr Tata personally. It is a very serious issue of corporate governance. Mr Tata in that self-serving interview that he had with Shekhar Gupta on NDTV, has admitted to the fact that they had engaged the services of Nira Radia and her agency.
That itself is a very serious breach on the part of somebody like Mr Tata who heads one of the finest organizations in the country. Just take for example, somebody like JRD Tata, he would have never have dealt with somebody like Nira Radia all his life.
Once you start dealing with these kinds of lobbyists, you must be prepared to face the consequences. Undoubtedly Mr Tata has the right to privacy but right to privacy is not an absolute right. It is subject to many exceptions and one of the exceptions is that if there is a commission of offences which is required to be investigated, there is a duty cast on every citizen of India, to bring it to the information of the concerned authorities.
If media were to do it, there is a separate issue. The press has a very different role to play, the right of the press is very different; it has a right not only to educate the people but people have the right to receive that information from the press because that really sub serves public interest but more importantly that really saves a democracy.
If you stifle a public debate in a democracy like India, that’s the end of democracy. I am sure Mr Tata would never approve of it. I remember Mr JRD Tata at one stage had even stopped talking to Mrs Gandhi during emergency days. Now this is the kind of an organization that Mr Tata represents.
Q: The core of this discussion is the way the information has leaked. Tomorrow a conversation between you and me regarding corruption in the Supreme Court can be deemed as public interest and therefore allowed to be leaked by an investigating agency? That I think is unfair and violates my privacy?
Dave: It is not at all unfair. It should be and it must be leaked. We are today living in extremely challenging times. The very existence of India as a democracy is seriously at stake because corruption is striking at the very root of democracy. I have no doubt that Mr Tata and his company have a lot to say in their defense and I am not for a moment suggesting that they are involved as some other people were in the Raja scam.
The fact of the matter is that this whole controversy is of such gigantic proportion that unless we go to the very root of the matter, we will be doing great disservice to India as a nation. I don’t think somebody in his position or for that matter any corporate head has the right to move the Supreme Court and say - please stop this.
The information coming from any side must be welcomed and they must be open to investigation. I don’t thing it is really an issue on which we should worry about because there are individual rights but the rights for society at large are far more important.
Q: You attached several of these conversations on the tapes as part of your public interest litigation. Are you not concerned about how these tapes got leaked, how come we don’t know all 2,000 odd conversations that were apparently tapped but only about a 100 selective conversations. We only have pieces of the puzzle and therefore don’t you believe, that these tapes leaked from an investigative agency in fact makes this a murkier story and does give Mr Tata or any other citizen or individual the right to demand his privacy?
Dave: I don’t think any corporate entity in India has the right to object to this leaking. Everyday these corporates have access to every document that belongs to the government. You have a minute of the Cabinet Committee on Economic Affairs and within hours the documents are available in the corporate world. We all know that.
Somebody who really wants to live by the sword must be prepared to die by the sword. I don’t thing this argument really washes as to how they were leaked. Undoubtedly, they have been leaked for a purpose. But the purpose sub serves the public interest, which is what is important. I don’t think the Gandhian theory will apply here that the means are as important as the end. According to me what is important is the end and the means are irrelevant.
Q: Does the purpose really sub serve public interest because we don’t know what is in the remaining 2,000 odd conversations, we just have information on a 100 odd conversations. Could this have been selectively leaked to show up one business personality in bad light?
Bhushan: I think that is a good reason for the court to go into this issue and make an order to put all these conversations except those, to excise those conversations which are purely of a personal nature. So far I have not come across any conversation in these 100 odd conversations which are purely of a personal nature and put all the remaining conversations in the public domain.
So that the whole country can see, how the corporate world in this country is going along employing corporate lobbyists and fixers to fix policy to subvert policy, to get government decisions in their favour, to plant favourable stories in the media etc.
The people of this country have a right to know how this country is being run by employing professional corporate fixers and brokers.
Q: If the Supreme Court decides that these tapes are no longer public material and the media cannot broadcast or talk about the contents of the tapes, will you be battling that as well along with the public interest litigation that you filed?
Bhushan: Yes, of course I will and even in Amar Singh’s tapes when Amar Singh went to the Supreme Court and Chief Justice Sabharwal gave him an ex-party injunction and later it was found that his sons had received three plots of land from Amar Singh, I had filed an intervention application annexing copies of that tape, annexing the transcripts of some of the conversations and pointing out these conversations are not of a personal nature.
While some of the conversations in those tapes were of a personal nature, the remaining conversations were between Amar Singh and other public servants, between Amar Singh and other businessmen, which showed all kinds of wrongdoing and illegalities taking place including bribe giving, trying to fix benches in the courts etc.
Q: Wear your legal hat for me for a moment and public interest aside based on precedent, based on Justice Sabharwal did in the Amar Singh case and several other preceding cases with regards to the right of privacy. How do you expect the Supreme Court will view this petition?
Dave: Let us understand one thing Amar Singh’s case stands on a different footing because that was a case where injunction was granted and if I can recall correctly because of concession by then Solicitor General, Mr. Vahanvati and the additional Solicitor General Mr. Gopal Subramanium so it was an order which was in invitum.
So it is not a precedent. I have no doubt that today Supreme Court will not be inclined to grant such an injunction readily unless of course the petitioner is able to show something extraordinary.
Having said that, my view is that everybody has forgotten the real part of the law, there is a fantastic judgement of the Supreme Court in Rajagopalan’s case where Justice Jeevan Reddy as he then was in 1994 said that nobody, particularly public authority can bring an action to injunct publication of any such material and he looked and by examining the entire law came to the conclusion that nothing doing, this is an absolute right of freedom of speech, this is an absolute right of the press and that right cannot be stifled even for right to privacy.
So I don’t think it’s so easy for anybody to today pursue at the court and particularly because Mr. Tata and his companies are involved prima facie with Nira Radia and the allegations which are levelled against them. So I don’t think this case should generate any kind of a serious debate in the Supreme Court.
Q: You don’t think that if these tapes have to be remain in the public domain then all conversation should be released by the income tax department, on all 2000 odd conversations that were taped by them. Why this selective release and selective leaking?
Dave: I think they should be released and I think if income tax department is unwilling to release because of various reasons which we know, which are so well accepted in our country and fortunately today we are becoming slowly a Banana Republic, then press will have every right to publish them.
Q: It is ironical that you have termed it as a banana republic because that’s exactly what Mr. Tata called it in his interview to the Indian Express. What also surprises me that none of these conversations seem to have to do with any tax violation of any nature. So I am surprised that the income tax department was sitting on all of these conversations and has released some of them or leaked some of them even though they don’t go to prove to any extent, any kind of tax violation that again also shocks me out side of the privacy argument?
Bhushan: In fact the income tax department’s letters to the CBI clearly point out that Ms Nira Radia and some of these conversations which have not yet come in the public domain is advising Unitech how to stagger payments which have been received abroad so as to avoid tax etc. So therefore there are certainly conversations in all this which show tax violations among all other violations.
Q: Your comments on what Mr. Bhushan have just said because I have not heard the tapes?
Dave: Let me say one thing, truth has a very uncanny way of surfacing and if it surfaces because of leakage of certain income tax taped conversations, I think we as citizens must welcome it. This is a clear reminder because this is a business channel, this is a reminder to the corporate world of India that they should put their house in order and ensure that there is good governance in this country and they all want good governance within the corporate. Why not in public life?
