Should government-initiated phone hacking be made public if the recordings are in the public interest? Shubhangi Bhadada exposes the thin line in India between the right to privacy and freedom of expression.
Between 2008 and 2009, the Indian income tax department tapped the phone lines of Nira Radia, a political lobbyist, for almost a year. Subsequently, in 2010, some of the recorded tapes were leaked, resulting in the publication of a small portion of the tapes recorded by the department. These tapes included conversations between Radia and a number of public figures, including politicians, journalists and business houses. One such public figure was Ratan Tata, the Chairman of the Tata Group, one of the biggest Indian conglomerates. Tata filed a writ petition in the Indian Supreme Court claiming an infringement of his right to privacy.
While the right to privacy is recognised by most legal systems and a number of international human rights conventions, the scope of such a right is not clearly demarcated. Further, it is also generally accepted that the right to privacy is not an absolute right and has to be balanced with the public interest. The argument made is that the higher the degree of public interest in a particular issue, more is the leeway that should be granted for intrusion into privacy. In India, the right to privacy has been recognised as part of the fundamental right to life guaranteed under Article 21 of the Indian Constitution. However, this is clearly not believed to be an absolute right, which can be seen from Tata’s claims itself.
Tata has not challenged the right of the government to intercept and record private conversations. Rather, his grievance is with the unauthorised publication of the recordings. His argument is that the authorities have failed in their duty to protect his privacy by allowing the tapes to be leaked and then proving unable to prevent dissemination of the information. He has thus asked for directives by the court for a probe into the leak, for the authorities to attempt to retrieve all leaked recordings, and for the media to be prohibited from publishing the tapes in any form. It is the second and third requests that have become points of controversy.
An important question in the whole issue is whether or not the conversations between Tata and Radia can be qualified as conversations regarding private matters, which the public would therefore have no right to know. Though there are clearly some private elements in the leaked conversations, the very reason these tapes have caused such a furor – and might impact Tata’s reputation – are that they affect issues of public interest: the manner in which the democratic system was allegedly subverted for the interests of, and by the influence of, a small group of powerful people in the public sphere – journalists, businessmen and politicians.
The overall character of these conversations seems to be dealing with issues of public interest, which the public has a right to know and the media an obligation to responsibly report and publish. This is an integral part of the fundamental right of freedom of expression, which needs to be balanced with the right to privacy. A blanket ban on publishing these tapes would defeat public interest and freedom of expression at the cost of the right to privacy.
However, at the same time, this incident brought into the limelight the issue of how the authorities in India seem to have a carte blanche right to breach the privacy of individuals through methods such as phone tapping, etc, without having any clear guidelines or supervision. This has clearly been recognised as a worrisome issue and one that reduces the confidence of the business community and individuals in authority or government. As a result of this controversy, an inter-ministerial group came out with a set of strict operating procedures to regulate phone tapping by government agencies . This is a step in the right direction.
Another interesting issue in this whole saga was the manner in which the media reacted, or rather failed to react, to the story. The entire incident of the Radia tapes initially gained prominence through social networking sites such as Twitter and Facebook while the media tried to ignore or block the news. This blackout by the media can be attributed to the involvement of various journalists and media personalities in the story. The tapes and related news were thus initially covered in only a handful of newspapers, magazines and TV channels, and it was only when questions started being raised due to its publicity through social media that slowly there was acknowledgement and the dissemination of information by major media houses. This clearly raises questions about how freedom of expression can be and is suppressed by the media when their right to privacy is under attack.
It is the responsibility of the authorities and the media to respect the privacy of an individual while ensuring that public interest or freedom of expression is not compromised. There clearly needs to be a fine balance maintained between the right to privacy of individuals and the public interest, as well as the responsibility of the media to uphold the tenants of freedom of expression even when it hurts their interests.
reply report Report comment
Dominic, while what you say is true, my understanding is that the way the process usually works in most countries including India is that wire-tapping / phone tapping is usually done under some statute or authority and with the permission of Secy of State or the like and this permission / authority would usually be granted only if there is prima facie some reason or suspicion that the particular department (which is requesting for permission to tap)has managed to show as to why they want to tap a particular phone. Thus, while its true that the issue of whether it is in public interest or not will be disclosed only once the tapping is actually done, the authorities cannot just tap anyone’s conversations.
Further, one of the rules made post this controversy in India provides that ‘all intercepts are to be destroyed within six months. If something has to be retained beyond that period, an approval is required from the competent authority’. Thus the authorities do not have a right to keep intercepts of purely a personal nature. Even in the present Tata case, Tata has not challenged the legality of the tapping itself but rather the disclosure of the tapes post the tapping. And I think this is where the responsibility of media comes in as well to ensure that they report on issues of public interest without breaching on the privacy of individuals without a proper reason.
reply report Report comment
How can one know if the phone tapping is in the public interest without first doing the phone tapping?