Death of privacy

Amighty conflict has built up between privacy and the public interest. Should everything be known about a person, his life and conversations? Do we need to make a distinction between the ‘public’ and ‘private’ lives?

Unfortunately, our present discourse has become entangled with the discontent triggered by the Nira Radia affair. We have to make a distinction between telephone tapping by the government and the use of that information in the public domain.

The anti-terrorism policy gave rise to extensive telephone tapping. After the PUCL judgment (1995), the Indian Supreme Court rightly took the view that indiscriminate telephone tapping was impermissible. But today the various police, intelligence, tax and enforcement agencies want capacity and empowerment to intercept at least one per cent (7 million) of the 700 million phone connections in India. Chidambaram is pushing for this.

The anti-terrorism laws have gone overbroad and all governments are taking full advantage of the terrorism bogey to deprive citizens of privacy rights. The USA Communications Assistance for Law Enforcement Act over-reaches itself. At present, India taps phones under the Telegraph Act, 1885 and the PUCL judgment. Tapping should be an exception, not the rule, and subjected to rigorous scrutiny.  Blackberry and others may have to give access in national interest, but are entitled to demand that all interception requests must be scrupulously authorised. If the government goes mad with tapping, there will be loss of privacy, blackmail by government operators and targeting of innocent people in the name of anti-terrorism. A full framework is needed. The new policy must be discussed in parliament and a statutory framework should be enforced.

The Nira Radia affair raises different issues. (i) Should the government take action against the leaks? (ii) Should the information, which is in the public domain, be injuncted or blocked? As far as the first issue is concerned, the government should not be too intolerant of whistleblowers where public interest is involved. The second issue relates to three interacting interests: the public interest, the public domain and privacy.

A 2002 BBC recognises the overriding importance of the public interest against privacy. Once something has come into the public domain (irrespective of how this happened), it would be foolish to injunct it. When the House of Lords did this in the Spycatcher case, the Daily Mirror ran a head-line: You fools.

Privacy is too broad and vaguely contoured a right. The real distinction is between the purely ‘personal’ and the rest. It is the “personal” and the ‘private’ that we need to re-define. Ratan Tata’s action in the Supreme Court about the Radia disclosure in Open and Outlook is not about the personal. Lobbying is not a personal but public activity. If lobbying is not transparent, it would become corrupt. To protest disclosures in this area would be plainly wrong – both a folly and against the public interest. In the information hungry twenty-first century, the concept of the privacy has been eroded. But snooping by government cannot be without discipline or reserve. Citizens also must brace themselves to give up some privacy rights to the public interest while fighting to protect the purely personal.                                                                                                                                                                                                                                                              

(Mr Dhavan is a senior advocate at the Supreme Court)

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