dna edit: Privacy in public interest

The Supreme Court’s focus on the right to privacy issue emerging out of the Radia tapes controversy poses several uncomfortable questions for the Centre. Industrialist Ratan Tata had approached the court in the wake of the leak and publication of the Radia tapes, demanding protection of his right to privacy. The Income Tax department’s surveillance of corporate lobbyist Niira Radia between 2008 and 2009 revealed a cabal of influential social networks comprising industrialists, politicians and journalists swinging policy decisions and appointments to public office. It also renewed public focus on the 2G spectrum scam and hastened the fall of then telecom minister A Raja. Since then, the striking of a balance between public interest and the individual’s right to privacy has aroused much debate but little progress in terms of laws and institutional change.

The three issues framed by the apex court for consideration are the “citizen’s right to privacy vis-a-vis government, right to privacy vis-a-vis media, and the right to know information”. Interestingly, Ratan Tata did not contest the government’s power to intercept conversations or the media’s right to publish information in public interest. His main grouse was against the government allowing the unauthorised leak of the tapes followed by its failure to prevent their dissemination. To assuage Tata, an Inter-Ministerial Group directed special cells be created in all agencies to undertake interceptions, appointment of specialised staff to handle the data, hardware and software, and destruction of all intercepts within six months. On the citizen’s right to privacy vis-a-vis the government, the failure to enact a right to privacy legislation, despite several drafts, is a gross failure of governance. Alternatively, a privacy law has the potential to end the climate of impunity under which government agencies have operated. Perhaps, the privacy law’s inconvenience to the State is its greatest enemy.

A 2014 version of this bill recognises the Right to Privacy as part of Article 21 of the Constitution which promises the right to life and personal liberty. But this draft excludes government agencies tasked with gathering intelligence on India’s security, strategic and economic interests from its provisions. It also excludes a provision in a 2011 draft which conceded that journalistic activity serving public interest was not a deprivation of privacy. This brings us to the second and third issues before the Supreme Court, the right to privacy vis-a-vis media, and the right to know information. In the Radia tapes, portions of the relevant tapes did have private content, but significant sections also dealt with issues of overwhelming public interest. Not publishing material of public interest, after getting access to it, undermines the media’s reason for existing. In an unregulated environment, media houses probably erred in putting the tapes out in their entirety, without redacting the private content in the conversations.

In firming up the citizen’s right to privacy, the Supreme Court should also study the nature of state agencies. The Radia tapes leak would have been a non-issue if the alleged criminality in the tapes promptly attracted the I-T department’s attention and impelled it to share this actionable intelligence with other law enforcement agencies. It finally took the Supreme Court, in October last, to identify eight instances in the Radia tapes for the CBI to conduct preliminary investigations. The absence of robust oversight by truly independent authorities lies at the root of several documented cases of inaction and extra-constitutional action by state agencies.