Senior Supreme Court advocate Prashant Bhushan speaks about the public’s right to know, a telephone interview with GEETA SESHU
Posted Monday, Dec 06 22:48:33, 2010
Posted Monday, Dec 06 22:48:33, 2010
From the Free Speech Hub
The petition filed by the chairman of the Tata Group, Ratan Tata, against the disclosure of the Radia tapes has raised interesting questions about surveillance, privacy and public interest. While Tata believes that his privacy was violated by the disclosures, the senior Supreme Court advocate Prashant Bhushan stoutly maintained that the disclosures were in public interest and must be allowed.
Prashant Bhushan had already filed a public interest litigation to seek the prosecution of the former Union telecom minister A Raja for his role in the 2G scam. He had appended a copy of the tapes to his petition, following which two magazines, ‘Outlook’ and ‘Open’, published transcripts of the tapes and the former uploaded 104 tapes on its website. At least 5861 call intercepts have been recordedfor 120 days each from August 20, 2008 onwards and from May 11, 2009.
In an interview with the Free Speech Hub, he spoke of the privacy issued raised by Tata and the rights of citizens for information.
Q: What do you think of the petition filed by Ratan Tata citing privacy concerns in the tapes disclosures?
Ans: There are two aspects to the matter ??" the right to privacy versus the right of citizens to know and the right of the media to reveal information. Under Sec 8 (1) (j) of the Right to Information Act, 2005, which deals with exemptions, it is clearly stated that there shall be no disclosure of :
(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:
Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.
Now, the subject of the telephone conversations clearly has a vital bearing on public interest. It deals with government policy or decisions or planting stories in the media about government policy. So it is in the public interest. Only a very minor part of the conversation can be considered personal in nature ??" the discussions on the black dress ??"which would probably be material for Page 3!
Q: This reference seems to have cut him (Tata) to the quick...
Ans: No, this is not what has cut him to the quick. What has cut him to the quick is the fear that these tapes that are not yet in the public domain may disclose some of the illegal dealings of the Tatas and are likely to disclose much more...
Q: So how is the right to privacy affected?
The right to privacy is not valid in this instance because we are not talking about personal conversations. These are professional conversations dealing with public affairs and policy. Even if it was dealing with the company affairs of the Tatas, it could perhaps be seen as in the private realm. But these were clearly conversations about policy.
The other part of the exemption of disclosure under the RTI Act is the matter of all information which cause unwarranted invasion of privacy of the individual unless the disclosure is justified in the larger public interest. 2q
Q: The Supreme Court has issued notice to the two magazines that have carried transcripts of the tapes. What do you think will happen now? Will Tata’s petition have a chilling effect on freedom of expression?
Ans: The notices to ‘Outlook’ and ‘Open’ magazines is good and was issued in order to hear their point of view, not merely that of the government. The ‘chilling effect’ could be an unfortunate fallout of this petition but I don’t think the petition (filed by Tata) can stop it altogether. Instead, there is likely to be a healthy debate on issues of privacy and public interest.
Q: Tata has said, in an interview to ‘Indian Express’, that he supports phone tapping for national security and law and order. Can he then claim protection under right to privacy?
Ans: I don’t think Tata is particularly concerned with larger privacy issues. In fact, I don’t think he is particularly concerned that this information is with the government. It is the information getting to the public that he is concerned about. Because he does not fear the government, he thinks he can deal with the government. For an honest businessman, this shouldn’t be the case, fearing the public. It should be the other way round.
Actually, I use the concept of a public whistleblower, where a public official in the course of his duty comes across information and if the disclosure of that information does not compromise any private aspect, it is the right and the duty of that public official to disclose such information to the public. In fact, in the law being drafted to protect the whistleblower must contain a provision that he must go to a public agency.
I go a little further, even if no cover-up is taking place but if the information is of such kind that the citizens have a right to know about it, the whistleblower should disclose it.
The petition filed by the chairman of the Tata Group, Ratan Tata, against the disclosure of the Radia tapes has raised interesting questions about surveillance, privacy and public interest. While Tata believes that his privacy was violated by the disclosures, the senior Supreme Court advocate Prashant Bhushan stoutly maintained that the disclosures were in public interest and must be allowed.
Prashant Bhushan had already filed a public interest litigation to seek the prosecution of the former Union telecom minister A Raja for his role in the 2G scam. He had appended a copy of the tapes to his petition, following which two magazines, ‘Outlook’ and ‘Open’, published transcripts of the tapes and the former uploaded 104 tapes on its website. At least 5861 call intercepts have been recordedfor 120 days each from August 20, 2008 onwards and from May 11, 2009.
In an interview with the Free Speech Hub, he spoke of the privacy issued raised by Tata and the rights of citizens for information.
Q: What do you think of the petition filed by Ratan Tata citing privacy concerns in the tapes disclosures?
Ans: There are two aspects to the matter ??" the right to privacy versus the right of citizens to know and the right of the media to reveal information. Under Sec 8 (1) (j) of the Right to Information Act, 2005, which deals with exemptions, it is clearly stated that there shall be no disclosure of :
(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:
Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.
Now, the subject of the telephone conversations clearly has a vital bearing on public interest. It deals with government policy or decisions or planting stories in the media about government policy. So it is in the public interest. Only a very minor part of the conversation can be considered personal in nature ??" the discussions on the black dress ??"which would probably be material for Page 3!
Q: This reference seems to have cut him (Tata) to the quick...
Ans: No, this is not what has cut him to the quick. What has cut him to the quick is the fear that these tapes that are not yet in the public domain may disclose some of the illegal dealings of the Tatas and are likely to disclose much more...
Q: So how is the right to privacy affected?
The right to privacy is not valid in this instance because we are not talking about personal conversations. These are professional conversations dealing with public affairs and policy. Even if it was dealing with the company affairs of the Tatas, it could perhaps be seen as in the private realm. But these were clearly conversations about policy.
The other part of the exemption of disclosure under the RTI Act is the matter of all information which cause unwarranted invasion of privacy of the individual unless the disclosure is justified in the larger public interest. 2q
Q: The Supreme Court has issued notice to the two magazines that have carried transcripts of the tapes. What do you think will happen now? Will Tata’s petition have a chilling effect on freedom of expression?
Ans: The notices to ‘Outlook’ and ‘Open’ magazines is good and was issued in order to hear their point of view, not merely that of the government. The ‘chilling effect’ could be an unfortunate fallout of this petition but I don’t think the petition (filed by Tata) can stop it altogether. Instead, there is likely to be a healthy debate on issues of privacy and public interest.
Q: Tata has said, in an interview to ‘Indian Express’, that he supports phone tapping for national security and law and order. Can he then claim protection under right to privacy?
Ans: I don’t think Tata is particularly concerned with larger privacy issues. In fact, I don’t think he is particularly concerned that this information is with the government. It is the information getting to the public that he is concerned about. Because he does not fear the government, he thinks he can deal with the government. For an honest businessman, this shouldn’t be the case, fearing the public. It should be the other way round.
Actually, I use the concept of a public whistleblower, where a public official in the course of his duty comes across information and if the disclosure of that information does not compromise any private aspect, it is the right and the duty of that public official to disclose such information to the public. In fact, in the law being drafted to protect the whistleblower must contain a provision that he must go to a public agency.
I go a little further, even if no cover-up is taking place but if the information is of such kind that the citizens have a right to know about it, the whistleblower should disclose it.
Q: There have been concerns about privacy in relation to the UID. What is your view on this?
Ans: My own view of UID is that I have no problem if the information contained in the UID is publicly available and that every citizen has a right to know that information. I have a problem if it is selectively available to the government, not to the people.
Ans: My own view of UID is that I have no problem if the information contained in the UID is publicly available and that every citizen has a right to know that information. I have a problem if it is selectively available to the government, not to the people.
In fact, I feel that one thing that can be done to check corruption is to demonetize notes above Rs 50 so that any payment that is done for over Rs 1000 must be paid by credit card or cheque so that everyone can see this financial transaction. This will greatly reduce black money.
Q: The right to privacy is also seen as part of the right to freedom of expression. But are they in conflict here?
Ans: No. The tapes do raise a very limited issue of freedom of expression. Freedom of expression, as the Supreme Court said, includes the right to information.
Q: The right to privacy is also seen as part of the right to freedom of expression. But are they in conflict here?
Ans: No. The tapes do raise a very limited issue of freedom of expression. Freedom of expression, as the Supreme Court said, includes the right to information.
