The Tata chief said the media should be restrained from publishing and broadcasting unverified conversation as the right to privacy cannot be violated under the garb of freedom of the press and if that is allowed, then "paparazzi" type of media would develop.
"Today my concern is that governemnt is not giving serious consideration and attention to the issue. There may be other CDs also which can be leaked and brought in public domain. There is a lackadaisical approach on the part of the government," senior Advocate Harish Salve, appearing for Tata, told a bench comprising justices G S Singhvi and A K Ganguly.
He said the government should have taken action immediately after the transcripts of the conversation, intercepted by the government agency between Radia and others were published in the media for the first time on April 28, last year.
"Government should have been extremely concerned on April 28, 2010 as to how this got in the media and how it was leaked?" Salve asked while raising the point that service providers might have leaked the conversation.
"The information is with three government agencies -- CBI, IB and IT department -- and fourth might be the service provider. We don't know from where it leaked," he said, adding that "the service provider can also leak".
While contending that the conversation cannot be used for any purpose other than for which it is intercepted, he accused the government of preserving all the contents of the recorded talk which was intercepted by the Income Tax department for 180 days. The advocate said part of the record, which was private in nature, must be destroyed to prevent further leakage.
The court shared his view and said that it is government's right to tap the phone but it is also its duty to protect such conversation from being leaked. "They have the right to tap but they also have the duty to protect it and ensure that it is not leaked. They have to safeguard it effectively," the bench said, adding that "in the fast-changing time and developing technology, privacy is virtually disappearing and (is being) diluted".
Critising media for publishing the transcript of the conversations, Salve said that the press cannot interfere with the right to privacy and it has to be restraind from doing so.
"The inflated notion of freedom of the press needs to be corrected. If it is allowed to publish such conversation, then paparrazi type of media would develop," he said.
While Salve was making submission against the media, senior advocate Anil Divan, appearing for the Outlook magazine, which had published the transcripts, contented that Tata was trying to stretch the scope of his petition from private matter to public interest litigation.
"The whole idea is to make this private litigation a PIL," Divan said, adding that in a private matter, Tata was seeking the court's intervention for laying down guidelines with regard to privacy.
He said if the publication of the transcript was not in public interest, then he has to specify which part of the conversation was private in nature. "What I am indicating is he (Tata) is going beyond the petition," the senior advocate said.
The court then queried whether the media can be asked to reveal the source of its information in the case if the governemnt agency is not involved in the leakage. "When the tapping is done by the governemnt agency then we ask but if it has been done by a private operator then how can the court ask? ," the bench said.
Salve, however, said that the service provider acts as an agent of the government and 'nodal officer', which is involved in the tapping, and perforing a public service and can be treated as a public servant under Prevention of Corruption Act.
He further contended that what has to be preserved and used by the government agency was the "class of messages" which must relate to the subject for which the order for interception was given.
He said during the course of interception, all types of private talk which infringed upon the privacy of the person should have been destroyed. The government has maintained that conversation was recorded as part of the surveillance ordered by the Directorate General of Income Tax (Investigation) following a complaint received by the Finance Ministry on November 16, 2007, alleging that Radia was an agent of foreign intelligence agencies and she was indulging in anti-national activities.
It was alleged that Radia had within a short span of nine years built up a business empire worth Rs 300 crore. It gave the details as to how 180 days of Radia's conversations were recorded from August 20, 2008 onwards for 60 days and the same was further extended from October 19 for a period of 60 days. Later on May 8, 2009, a fresh proposal for putting on surveillance was ordered for 60 days from May 11.
Tata, while seeking that the tapes should not be made public, contended, "Section 5 of the Official Secrets Act (OSA) applies to the facts of the present case since the records that the respondent relies upon are obtained in violation of Section 5."
Further, he maintained that the issue in the present case is not of "whistle-blowing" but of infringement of fundamental rights and infraction of laws. In his plea, Tata has also raised the constitutional issue as to "whether the government owes a constitutional duty to prevent any leaks and, if they do happen, to take all such steps as are necessary to remedy this violation of privacy."
Tata's petition has also sought answers from the apex court as to "whether an aggrieved citizen has the remedy against the government where his right to privacy is violated on accounts of leaks of transcripts obtained by government agencies."