2G Scam dials in Nira Radia Conversation with Rajshekhar Rao

Industrialist Ratan Tata has filed a petition in the Supreme Court, on invasion of his privacy, through his lawyers represented by Manik Karanjawala of Karanjawala & Company. The invasion points to conversations intercepted by officials, on the Nira Radia tapes involving his conversations with lobbyist Nira Radia. These phone conversations were originally tapped by the Government to investigate tax evasions.

Industrialist Ratan Tata has filed a petition in the Supreme Court, on invasion of his privacy, through his lawyers represented by Manik Karanjawala of Karanjawala & Company. The invasion points to conversations intercepted by officials, on the Nira Radia tapes involving his conversations with lobbyist Nira Radia. These phone conversations were originally tapped by the Government to investigate tax evasions.

The tapes follow conversations of highly influential people namely Ratan Tata, Barkha Dutt, Vir Sanghvi, Ranjan Bhattacharya to name a few. 

For a period of time, with direct communication breaking down between the DMK and the Congress, a section of the DMK (Raja and DMK chief M. Karunanidhi’s daughter, Kanimozhi) was in constant touch with Radia on what was going on and how the Congress needed to react. In turn, Radia relied on a number of people to pass information on to the Congress and back to the DMK. In a way, these were the people who eventually ensured Raja was given the telecom portfolio.

Lawyers, activists and investigating agencies have given their versions to why these tapes are either private or have to be made public. Here is what some of them had had to say to various news agencies. 

Tata claims that this is invasion of his right to privacy and his part of the conversation is private and in no relation to the ongoing 2G scam. Thus his conversations in the tapes should not be a part of the investigations. Only the tapes, recorded under IT surveillance of Nira Radia in 2008 and 2009, should be used for the “public purpose” of the investigation.

Prashant Bhushan said, “These are not private conversations. These are conversations between a lobbyist and her clients... bureaucrats, journalists and ministers. These show glimpses of all kinds of fixing and deal-making and show how the whole ruling establishment functions. There is enormous public interest in putting these tapes out. It is absurd for Mr. Tata to say that this is invasion of privacy”.

Senior Advocate K.K. Venugopal appearing for the CBI said, “Ultimately if nothing comes up. Prejudice will be caused to the persons being reviewed in the tapes”.

Telecom Minister Kapil Sibal spoke on Bloomberg TV on the Government’s initiative on “transparency”.  DNA India reports the Department of Telecommunications (DoT) has decided to send show cause notices to all new operators, asking why their licences should not be cancelled over violation of eligibility conditions. The operators, 85 in all, will have two months to reply.

Bar & Bench spoke to Advocate Rajshekar Rao on the legal nuances of this debate between right to privacy and public interest.

B&B: Right to Privacy: Your take on Ratan Tata using the right, as an invasion of his privacy in the 2G scam in relation to the Nira Radia tapes.

Rajshekhar Rao (RR): I’m a firm believer in the right to privacy, I believe he is justified in taking this stand. As far as I’m concerned that is a guarantee, however no right is absolute, particularly the right of privacy and if it is ultimately discovered that it is done for a collateral purpose then he has to suffer the consequences. But, I believe the right needs to be protected and he is justified in invoking the right.

The right of privacy as far as he is concerned is, it’s alright if the investigating authority has it and the interception is done legally, but if that investigation gets leaked to a third party and comes out at a premature stage then that clearly is an invasion of my right to privacy.

B&B: The tapes were made by the IT department during investigations between 2008 and 2009 with recordings of Nira Radia, who represented Tata, Mukesh Ambani, Congress and former Telecom Minister Raja. What are your thoughts on the role of media in leaking out these tapes in the public domain?

RR: The media plays an important role, but as we have seen recently the media is also not neutral. Ultimately you need a responsible media. I have personal experience of matters in court, what transpires in court and what is reported in a particular section of the press is completely different. There is a spin that is attached, and obviously each media group has certain bearings and leanings, so ultimately you are looking at free press and free press means an independent press. So as long as the independent press is doing what it’s supposed to be doing, there is a right to disclosure, but more often than not this is vitiated by extraneous considerations which leads to a great question on whether this should be permitted at all? But I firmly believe that the fact that media is playing an active role has led to a greater accountability and transparency, but one wishes it was more responsible, genuine and bonafide , and at times one does feel that media can be compromised.

B&B: Role of Media: To what extent can media be allowed to invade privacy?

RR: I would look at it in two ways. One is where you are a public figure and the media tries and justifies in saying, because you are a public figure, everything that you do has ramifications. For instance if you are Salman Khan and you are a role model for youngsters and tomorrow you are discovered doing something that is unacceptable or illegal, like drunken driving, the media goes after you. I believe you pay the price for it. But, invasion of privacy, the media has to act within a certain confine. Bottom-line is this, if telephone tapping perse is illegal and it is only capable of being authorized under the IT Act or the Telegraph Act and then if a media person decides to tap illegally, I’m of the view that it can’t be done. You can’t resolve to illegal tools and you can’t go to any extent to breach privacy.

You must do it the right way. There is a definite requirement for self regulation, but more importantly there appears to be some requirement of legal regulation also, as to the nature and content that media can carry particularly when it involves a delicate balance between a public interest and private right.

For instance an MMS scandal, is actually a private issue between two individuals and what does the world have to do with it, so that’s clearly an invasion of privacy. So if some journalist has gone and tried to videograph it and starts pushing a story, to me that is a breach of privacy. If a Mr. X has a particular disorientation, that’s his personal problem, why should that be public news? But if a sadhu is found in a compromising position with a lady, and has a huge fan following and stalls on virtues and morality then clearly there is a right of disclosure. Not to say that the ends justifies the means.

B&B: What should overrule: Transparency (right to information) or the right to privacy?

RR: It is a delicate balance, wherever public interest is involved I think right of privacy should be subservient.

The whole basis of right to information is transparency. Transparency is important, but then you have to delineate spheres. A public sphere element… definitely transparency. If you are a public figure, you are expected to act in a particular manner. But, does the journalist suffer the consequences of trespass into your house? He may have to. If you do it, you run the risk of act within the confines of law and if you choose to violate law to get access to information which would involve breach of privacy of a particular person that sub serves a larger public interest, I would firmly err on the side of disclosure, but the journalist would have to answer.

B&B: Highly influential people have come under the scanner because of the tapes. This can prejudice them. Your thoughts.

RR: This is an argument which was raised in Jessica Lal’s media trial. The fact of the matter is that you expect people to discharge their duties, especially where you are well placed. For instance as a judge or CVC, you will discharge your functions in a manner influenced by public opinion. This is the bottom-line, you expect them to do their jobs, otherwise we follow what the Americans follow in their juris system, “lock them up and deny them access to anything and let them make-up their mind”. I don’t see how that’s possible, so one needs to have some faith in the institution.

The media ought to facilitate disclosure and therefore help accountability, but the minute that is underscored by an element of personal prejudice or bias, or by a motivated underlined consideration… then you are effecting your own credibility. So if a media person suddenly gets a Rajya Sabha nomination in a six seat category which is a specialized area, where there is recognition to contribution to society at large is fine, but if he gets into a political party, then objectivity and neutrality go out. That’s the very reason why judges are not permitted to participate in political activities otherwise, tomorrow you could have a situation where every member of any body or organization which performs constitutional duties, would be entitled to have political leanings or constitutional functions. Even the CVC Act clearly prohibits the CVC from taking up any assignment under the Government after he commits office, which is the reason why judges should not be given any commission after retirement because then you are anchoring for public office and looking into the needs of a particular political party which possibly is in power or is expected to be in power by the time you retire, then your sense of objectivity and balance goes.