A little less privacy

THE RADIA TAPES CONTROVERSY

Prime minister Manmohan Singh has assured the corporate sector that phone tapping would not be misused against anyone. It is heartening that Ratan Tata has moved the supreme court with the prayer that the contents of the Radia tapes not be made public which have created convulsions in the corporate sector and the media besides the government. It is hoped that the court will articulate the legal position by striking a balance between right to privacy and right to information.

Though the supreme court has recognised right to privacy as a fundamental right under the right to life and personal liberty guaranteed by Article 21 of the Constitution, it is not absolute. Most common law constitutions do not bequeath this right to their citizens. In the US, courts did not protect this right until toward the end of the 19th century as the common law did not recognise it.

This right was recognised when Charles Warren and Louis Brandeis published their seminal article ‘The Right To Privacy’ in the Harvard Law Review (1890). Roscoe Pound commented that it did nothing less than add a chapter to the law. Though hundreds of cases related to the right to privacy came to the courts, the first American court to deal with it was a New York appellate court in Roberson v Rochester Foldig Box Co (1902). Chief justice Parker ruled that the defendants had invaded what is called a ‘right to privacy’ — in other words, the right to be let alone.

Again in the US, the celebrated thesis of justice Douglas in the Grisworld case (1965) touched off a fresh debate on the issue. It propounded that though the right to privacy is not mentioned as a specific guarantee in the Bill of Rights, it is embedded in the ‘penumbras formed by emanations’ from the specific guarantees. The supreme court of India also referred to this thesis in R vs Govinda (1975).
The term ‘privacy’ has been described as “the rightful claim of the individual to determine the extent to which he wishes to share of himself with others and his control over the time, place and circumstances to communicate with others. It means his right to withdraw or to participate as he sees fit.” Definitely, one has a right to withdraw and nobody has any business to peep into his/her personal lives.

But there is nothing personal in the Radia tapes. It is about promoting the business interests of particular corporate houses and lobbying about getting a particular portfolio to a particular individual to get undue benefits. Thus, it concerns public interest as corporate sectors also mobilise money from the people, and, therefore, the contents must be made public.

Public interest supersedes everything else. The US supreme court upheld the right of ‘The New York Times’ and the ‘Washington Post’ to publish the classified Pentagon Papers which exposed the role of the American government in the Vietnam war. The Pentagon papers, officially titled ‘United States-Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defence’.

Court ruling

A 1966 article in the ‘Times’ said that the Pentagon papers “demonstrated, among other things, that the Johnson administration had systematically lied, not only to the public but also to Congress, about a subject of transcendent national interest and significance”. In The New York Times Co vs United States (1971), a full bench of nine judges of the US supreme court with 6:3 majority rejected the plea of President Richard Nixon who claimed executive authority to force the ‘Times’ to suspend publication of classified information in its possession.

The question before the court was whether the constitutional freedom of the press guaranteed by the First Amendment was subordinate to a claimed need of the executive branch of government to maintain the secrecy of information. The US supreme court ruled that the First Amendment did protect the right of the ‘Times’ to print the materials. Even before this judgment was pronounced, the American press published detailed reports about president Johnson’s failing kidney. It was taken to be an invasion into privacy but then it was justified on the ground that the war depended on the president’s health and so the people had a right to know.

Similarly, people have a right to know the contents of the Radia tapes. The right to privacy can be invoked only in case of something very personal. On Aug 24, 2007, the supreme court directed the ministry of information and broadcasting to stop TV channels from telecasting photographs of Monica Bedi taken surreptitiously in a bathroom in a Bhopal jail. This was, doubtless, an intrusion into Bedi’s privacy. Indian tradition and customs have always respected this kind of privacy, and Indian courts were ahead of British and US courts in protecting this right.

The right to privacy cannot be a shield for covering one’s misdeeds. Unfortunately, in India, the poor, who do not even have toilets, hardly enjoy any right to privacy, while the affluent remain confined within high walls. These are the privileged people who invoke the right to privacy.

However, this right needs to be protected so that the state does not become totalitarian and rejects the idea of privacy as ‘immoral’, ‘anti-social’, and ‘part of the cult of individualism’. It was against this tyranny of the state that the West revolted and gave the seductive slogan of taking government out of the daily lives of the common man. It was to ward off this possibility that the supreme court directed in PUCL vs Union (2002) that the Central and state governments should constitute oversight committees to look into cases of phone tapping. Unfortunately, this direction has not been complied with.

The right to privacy should be protected, but it cannot supresede the people’s right to know.

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