Privacy is a right for private persons and also for private affairs of public persons. It is illogical and unreasonable for public persons to claim privacy for their public activities such as governance, policy making, industry, corporation, formation of ministry and politics. Privacy should not be mistaken with secret business operations causing harm to public institutions. Once a crime is committed, the suspicious persons need to be interrogated or investigated. Those suspected or involved cannot claim privacy and ask for protection of their identity, criminal secrets as privacy as part of right to life.
Secret lobbying behind 2G spectrum corruption has to be probed into. Looking into authorized recorded tapes is a required and legitimate process, particularly if it involves the conversation of big people with political lobbyists, which insist on somebody to be made or not to be made the Telcom minister. If these tapes are blocked, the rich and powerful brokers would get emboldened to adjust the deals to escape from the long hands of law. Right to privacy is not secrecy or facility for hiding unethical deals and cornering state wealth through manipulations. If criminals or suspects seek this right no crime could be probed anywhere in the world.
If Mr Ratan Tata, Ms Barkha Dutt, Mr Vir Singhvi and others who figured in Radia tapes and Ms Niira Radia herself feel defamed by these revelations, they can test their right to reputation by suing the publishers. Certainly they do not have Article 21 protection here. That right is available for victims of crime but not to criminals or their helpers.
Privacy is an undefined right implied in Right to Life in general. It means the right to be let alone and its object is to protect inviolate personality. It can be regarded as a fundamental human right as the presumption that individuals should have an area of autonomous development, interaction and liberty, a “private sphere” with or without interaction with others and free from State intervention and free from excessive unsolicited intervention by other uninvited individuals. 
Right to Information trumps Privacy
Take a recent case in the UK where the media’s right to publish certain matters like names of accused was upheld in the general interests of public. Under the UK Human Rights Act 1998, Article 8.1 requires public authorities, including the court, to respect private and family life. Three claimants (brothers) were designated under the Terrorism (United Nations Measures) Order (SI 2006 No 2657) as persons whom the Treasury suspected of actually or potentially facilitating terrorist acts. Asset-freezing orders were made against these claimants. As other appellate courts confirmed these orders, the case reached Supreme Court, where it was held that the general public interest in publishing a report of the proceedings in which they were named was justified curtailing their rights to private life.
A report on a study  on the interface between public interest, media and privacy for BBC and other State Commissions of UK concluded with a suggestion of treating public interest as an exception to privacy: The general public put great value and importance on media information or coverage which promotes the general good, for the well-being of all. These include the identification of wrongdoing and of the wrongdoers themselves, with the media acting as guardians of shared moral and social norms. Under these conditions, and with suitable regard to the relative severity of the individual case, individuals’ privacy can be intruded upon – in extreme cases it should be – in the name of the greater good. 
Like several other rights, it is also not absolute as it can be restricted on the basis of compelling public interest. 
The Nation's Right to know
The Supreme Court of India has held that a citizen has a right to receive information, derived from the concept of freedom of speech and expression comprised in Article 19(1) (a).  In Raj Narain case SC ruled: "the people of this country have a right to know every public act….state function." In SP V. Union of India, it said “no democratic government can exist without the responsibility and the basic postulate of accountability is that people should have information about the functioning of power.”
After privatisation and globalisation, there is an increased need for right to know the activities of corporate giants in clandestine association with corrupt rulers and unscrupulous bureaucrats. In Time V. Hill , the U. S. Supreme Court said: “The constitutional guarantees of freedom of speech in the press, not for the benefit of the press, but in order to benefit the entire nation. This is an interesting case where private individual’s right to privacy was in conflict with freedom of press. The Life magazine published an article about the ordeal of a family trapped in their own house by escaped convicts. Life claimed that the article described events that had actually happened to the Hill family, which had in fact been held hostage several years before by escaped prisoners. The article was inaccurate in several non-defamatory, but nevertheless deeply disturbing, respects. Members of the Hill family sued for invasion of privacy under a New York statute.
The Supreme Court's opinion in Hill built upon the 1964 decision of New York Times Co. v. Sullivan, in which the Court had held that plaintiffs who were public officials could not recover damages for defamation unless they could demonstrate that the defamation had been published with actual malice, “that is, with knowledge that it was false or with reckless disregard of whether it was false or not” (pp. 279–280). In Time, Inc. v. Hill the Court extended the application of the actual malice rule to actions alleging that a plaintiff's privacy had been invaded by “false reports of matters of public interest” (p. 388).
Mr Ratan Tata's petition is correct in one aspect – there shall not be any unwarranted invasion of privacy. However, it is doubted and disputed whether his privacy was invaded or is it warranted. Unwarranted invasion of privacy is the exception to right to information as per section 8 of Right to Information Act, 2005, that means a required or warranted invasion is welcome to enforce right to know. In the Supreme Court judges' assets case, the Delhi High Court held that personal information related to the performance of the public duties by public officials does not receive the same level of protection as that of private individuals who do not perform such duties .
In Peoples Union for Civil Liberties (PUCL) v. Union of India,  P. Venkatarama Reddy J. observed: By calling upon the contesting candidates to disclose the assets and liabilities of his/her spouse, the fundamental right to information of a voter citizen is thereby promoted, when there is a competition between the right to privacy of an individual and the right to information of the citizens, the former right has to be subordinated to the latter right as it serves larger public interest.
If a privacy interest in nondisclosure exists, the public interest in disclosure, if any, is weighed against that privacy interest.  Even if the interest in protecting privacy is substantial, the importance of the public interest must still be considered because unless the invasion of privacy is clearly unwarranted, the public interest in disclosure must prevail. 
Given that freedom of information laws have at their core the purpose of disclosure, exemptions are strictly construed, and it has been said that the public right to know should prevail unless disclosure would publicise intimate details of a highly personal nature.  The Radia tapes, so far published revealed public issue, but not an iota of personal life of the claimant Ratan Tata. There is neither ‘personal privacy’ nor ‘unwarranted invasion’.
Legal principles of disclosure
From various jurisdictions and judicial decisions, following principles can be inferred.
Telephone tapping is held constitutional if ordered according to a prescribed procedure. (SC judgment in PUCL Case) Information obtained by authorised telephone tapping is not illegal information. If such information discloses clues and evidence of a crime or scandal, they have to be pursued. (Investigation in public interest to protect public property)
Right to privacy is available against the disclosure of information about private or personal life of the public or private person. Protection under privacy cannot be extended to criminal activities, conspiracies and attempts to manipulate political and governance related policies. Disclosure of Public information in the hands of Government is matter of state duty and right of citizen. (Right to know as part of right to life and Right to Information Act, 2005)
The protection for private information from disclosure is not available if there is overwhelming public interest in disclosure. Overweighing public interest in non-disclosure should be proved for not considering public interest in disclosure. In such conflicts privacy is not prime concern. If a privacy interest in nondisclosure exists, the public interest in disclosure, if any, is weighed against the privacy interest.
Unless information in the government's hands is non-public and of a “highly personal and sensitive” nature, such that its public disclosure “would be offensive and objectionable to a reasonable person,” the disclosure of such information cannot, as a matter of law, violate an individual's right to privacy. Even if the interest in protecting privacy is substantial, the importance of the public interest must still be considered because, unless the invasion of privacy is clearly unwarranted, the public interest in disclosure must prevail.
Given that freedom of information laws (US) have at their core the purpose of disclosure, exemptions are strictly construed, and it has been said that the public right to know should prevail unless disclosure would publicize intimate details of a highly personal nature.  The courts have laid down no definitive rules as to what constitutes "an unwarranted invasion of personal privacy" within the meaning of exemption 7(C) of the Freedom of Information Act (FOIA)
The doctrine laid down in the Olmstead  case is that since wire tapping does not violate the Constitution, evidence so obtained is admissible under the common law of evidence no matter how illegally obtained. The nation has a right to know and justice demands all secrets to be disclosed and be used as evidence to prove corruption of these manipulating lobbyists, industrialists and media persons are no exceptions. It is in fact not the privilege of media to report but its obligation to inform the people to enforce their right to know.
Professor Madabhushi Sridhar is Coordinator, Center for Media Law & Policy, NALSAR University of Law, Hyderabad
1. Lord Lester and D. Pannick (eds.), Human Rights Law and Practice (London, Butterworth, 2004), para. 4.82.
2. David. E Morrison, Michael Svennevig, The public interest, media & privacy, a report for BBC & other British authorities, March. 2002
4. Govind v. State of M.P. (1975)2 SCC 148, AIR 1975 S.C. 1378
5. State of U.P v Raj Narayan (1975) AIR 1975 SC 865; P.V.Narsimha Rao v State (1998) AIR 1998 SC 2120).
6. 385 U.S. 374 (1967)
7. The CPIO, Supreme Court of India vs Subhash Chandra Agarwal, WP(C) 288/2009
8. AIR 2003 SC 2363
9. Ripskis v. Department of Housing and Urban Development, 746 F.2d 1 (D.C. Cir. 1984)
10. U.S. Dept. of State v. Ray, 502 U.S. 164, 112 S. Ct. 541, 116 L. Ed. 2d 526 (1991)
11. Attorney General v. Assistant Com'r of Real Property Dept. of Boston, 380 Mass. 623, 404 N.E.2d 1254 (1980)
12. Attorney General v. Assistant Com'r of Real Property Dept. of Boston, 380 Mass. 623, 404 N.E.2d 1254 (1980).
13. Olmstead v. United States, 277 U. S. 438
Radia ‘s and Tata’s claim to privacy does not hold water as their words involve policy making, attempt to bribe(refer Perambalur Hospital equipment),controlling news, controlling media Funds and general disregard for Democracy in as much as they seem to manipulate Governmental policies,they , who have not been elected by people.
The sheen of sleepless night of Tata on hearing about being informed about 15 crores being asked as bribe is lost when one hears about him in the tapes,his talks withRadia, as well as his donation to Raja’s Constituency.
As to Radia less said ,the better.
Ordering IAS Officers, manipulating media, influencing policy decisions,fixing SBI/RBI and brazen attempt to fix a price for everything.
Not every thing is private in public figure's life.If some PR of any businesss firm will make comment about 'blushing' to dark skinned minister on discussion of name of another MP who incidently happens to be minister's mentor's daaughter and all these mujras are done at the cost of billions of Rupees of tax payers money, there is nothing private about it.These needs to be exposed.
Curruption can be better checked if a WEBSITE- INDIALEAKS is created where anyone wanting to fight corruption can post documents to prevent/ expose corruption ANNONYMOUSLY. It could creat a situation where anyone from the Presidents Office/ CJI office/ Parliament Office/PM office/ any Ministers office/ Military Man/ Congress/BJP/CPM Party Officeetc/TATAS/ AMBANIS or any other private company office / RADIAS OFFICE/ why even the "most honest" CVC PJ THOMAS etc etc can post documents disclosing corruption- without disclosing their identity. Presently, the HONEST PEOPLE are HOUNDED- nobody wants "an honest individual" anywhere near them. Give a chance to the honest to get back at the corrupt. Please, Please, Pleeeeeeeeease, will some one creat an INDIALEAKS WEBSITE where anyone can post documents ANNONYMOUSLY to expose/prevent corruption. Will some IIT trained "IT WIZARD" take up the challenge???????????
I completely agree with the Professor on issue of privacy and public interest. In fact it was the Indian courts who allowed corruption, nepotism, dynastic rule, "extraconstitutionalism" etc to flourish in India as illustrated my open letter to Sardesai. I heard that Sardesai is the Chair of Editors Guild in India and his Sagarika Ghose a member of the so called "self regulated media watchdog" in India. God save India from journalists like Sardesai and Supreme Court Judges who condone the break down of Rule of Law and Constitutional Machinery in India. Please see below;
An Open Letter to Sardesai
Justice Mr. K. G Balakrishnan is the worst Supreme Court Chief Justice India has ever seen. It is so wrong to say that he has landed himself in trouble but he landed the nation, the dignity of the office of a Supreme Court Judge, the good standing of the Supreme Court, the Constitution of India and the nation as a whole in trouble.
For the pervasiveness of corruption on an industrial scale across India touching the lives of all Indians I blame the Supreme Court and the High Courts more than anyone as it was their mandated duty to uphold Rule of Law across the board and not for a few litigants only. The record of the Supreme Court and High Court Judges favouring the ruling Indira-Nehru dynasty from the operation of every constitutional remedy, checks and balances and Rule of Law mechanisms under one pretext or the other is pathetic. Be it through the spin doctoring of their right to so called “privacy”, “right to reputation”, “right dignity” or the Supreme Court even justifying the Emergency! It is time the Supreme Court and High Courts introspected and take steps to ensure Justice Prevails in India in a holistic way instead of doing it on a case by case basis or piecemeal basis.
This Judge Balakrishnan as a case study had been the Chief Justice of India for about 3 years and the denigration of the Indian constitution that happened under him is a betrayal of the nation, the freedom fighters of India who fought for the independence- the right to be governed by a Constitution of the Indian peoples' choice instead of the "Britishers" choice. It is this right to choose a constitution of one's own choice is what is essentially the independence of India as without this right there is no independence. The following denigrations of the Indian Constitution under Justice Balakrishnan as a case study are relevant for all the Supreme Court and High Court Judges of India as below;
1. The controversy surrounding Justice Dinakaran is nothing compared paragraph 2 below
2.Denigration of the integrity of the Indian Constitution through the extra constitutional offices of the UPA cum NAC Chairperson on whose "Doctrine of Pleasure" the Union Cabinet headed by the Indian Prime Minister retains his tenure as well as the Chief Ministers where her party is in governance. Have you ever heard of a similar office like the UPA Chairperson over the tenure of the US President or the British Prime Minister or the French President or over the German Chancellor any other head of the cabinet or Head of State other than in "Banana Republics?" In other words none of these head of states or cabinets have someone called “UPA cum NAC Chairperson” doing back seat driving over the remits of their respective constitutions including even under the unwritten British constitution!!! In other words the Supreme Court condoned the indirect abrogation of the Indian Constitution to suit the so called rights of the Indira-Nehru dynasty without having a constitutional amendment to install a monarchy which is infinitely better than this kind of extra constitutional dynasty.
3. The denigration of the independence of the Constitutional authorities such as the Election Commission (through the contrived resignation of Gill and his subsequent inclusion in to the Union Cabinet, the nomination of Mr. Balakrishnan, the retention of Mr.Chawla who are so called “Sonia Loyalists” to cite as examples in a long list . Thank God the Supreme Court is now looking in to the nomination and appointment of the CVC Mr. P J Thomas.
4. The Supreme Court being the guardian and custodian of the Fundamental Rights guaranteed watched/tolerated the cancer of corruption engulf India which now victimises about 54% of the Indian public directly (The latest survey by Transparency International) and 100% of the 1.2 billion people indirectly. Is there a bigger instance of such massive break down in Rule of Law and Constitutional Machinery in any other democracy other than "Banana Republics"? Every country has instances of corruption but in India like in several developing countries it is on an industrial scale. The Supreme Court and High Court Judges are deemed to be aware that in every instance of corruption there is a victim in addition to beneficiaries whose rights guaranteed by a law/s or an Act/s or statute/s or regulation/s or a rule/s or a norm/s which is denied or disregarded for extorting money by the government babus including the police, village/municipal/taluk/block officers, civil supplies officers, district magistrates, PWD/CPWD engineers, government hospital workers including doctors, nurses, traffic cops, income tax officers and even the court officials. It is easier to ask the aam aadmi to name one government organisation in India which is not tainted by corruption.
5.If the Supreme Court and High Courts are genuine about their duty as the custodian of the Fundamental Rights as well as of the Constitution of India they would have long ago directed the Union and State governments to pilot legislations in the Parliament and State Assemblies to enact laws saying that their ongoing failure to check nationwide corruption would amount to a breakdown in Constitutional Machinery rendering them liable to be dismissed or their complicity, inaction and silence in corruption could constitute a grave breach of their Oath of Office to uphold the Constitution of India. No government would dare to risk such an observation by the Supreme Court or the High Courts and would have brought in legislations the way they do with reservations and vote bank politics every now and then. A government which passes laws even for its banks, railways, insurance corporations, shipping and other government run companies would be left exposed before the aam aadmi and would have yielded. The governments would not have been able even to hide behind the charade of their stupid Law Commissions whose recommendations they do not implement anyway.
6. The Supreme Court and High Courts could have directed the government to model the anti-corruption laws even on the lines of Bihar Special Courts Act 2010 where the ill-gotten wealth of bureaucrats and politicians could be seized by the state until they are acquitted by a court of law. This along with making all government bureaucrats declare their assets every year would have defeated corruption. This ill-gotten money once recovered could have helped the government to build homes for the homeless, hospitals for the sick, schools for the poor, play grounds for all Indian schools, stadiums and sports institutions, more colleges, roads, airports and harbours and would have still left enough billions to pay off the national debt. The cumulative loss of the government run businesses would run in to billions even Air India is now claiming that they need a further Rs.10, 000 crores to keep their business going? The onus is on the judges to explain to the aam aadmi of India how could a government spend so much money in businesses when it has very little money to set up enough courts, appoint judges, court clerks, legal aid and witness protection programmes etc across India (The Judicial Infrastructure) Air India and Railways can be run by anyone but the courts can only be run by the state.
7.The Supreme Court and High Court judges many of whom claim to be highly educated did not even once think about practical measures to check mate corruption in India other than convicting a few corrupt or passing a few orders in a few cases making the aam aadmi of India wonder what the meaning of their higher education? It makes the aam aadmi of India wonder is English as the language of higher court’s language intended to deprive the aam aadmi of India legal literacy- which is what “empowerment” is all about? With one order the Supreme Court could have directed the Union and State governments to set up Anti-Corruption Courts in every District and Taluks across India with multiple benches to make trials speedy and fast. The Supreme Court and High Court Judges if they do not know that it is part and parcel of their constitutional duty to ensure that the Executive (the government) discharges their constitutional duties including the duty to protect Right to Justice (Human Rights)/Right to Equality Before Law, Right to Equal Protection of the Laws etc then they should resign and appoint so that aam aadmies with commonsense can become judges in India. It is not rocket science to appreciate that one of the ways to prevent serious perversion of the course of justice, perjury, witnesses turning hostile, witnesses being influenced, intimidated or bribed across India is to video record all police station interviews in the presence of lawyers as is done in many functional democracies unlike the dysfunctional democracy of Indira-Nehru dynastic rule and their privilege to privacy when they are public figures who would have been exposed if they were in the USA or the UK or Germany, France or Israel or Australia even on the basis of Dr.Subramanyam Swamy’s expose about the UPA Chairperson’s highly suspect antecedents.
8. The Supreme Court and High Court judges should therefore stop spin doctoring "Right to Privacy" "Right to Dignity and Reputation" when people in high places are caught out or are in trouble. The UPA Chairperson was saved by the Indian courts from public scrutiny whether in the matter of her faith on the basis of privacy when her faith was clearly given even on Wiki-Pedia demolishing the views of the Chief Information Officer/Punjab and Hariyana High Court judges or her acquisition of Indian Passport whilst allegedly holding an Italian Passport or on the concept of born and naturalized citizens, the election commission rules against the “so called personal attacks” to protect that person’s reputation even when it could be relevant to the national security of India. The Prime Minister being the Head of the Cabinet is accountable for the corruption either through complicity, silence or inaction even when he is not corrupt as the Chain of Command for corruption stops at the door steps of the Prime Minister, the UPA cum NAC chairperson. The US Supreme Court did not protect the so called privacy or reputation of President Clinton or the dignity of the office of the US President during the Monica Lewinsky/Paula Jones perjury/misdemeanor investigation by Kenneth Lay, the FBI, and the Attorney General who even ordered the seizing of Monika Lewinsky's blue jacket to test the semen of the incumbent President. What are these Indian judges talking about? There is no privacy to protect when a phone tapping is done on the basis of a criminal complaint and the Supreme Court is not a competent investigating agency and is duty bound to order the police to register the case against Radia where her innocence or guilt could be investigated and a competent criminal court could convict or acquit her after due process/trial. In any case a Supreme Court which failed in its supreme duty to uphold the integrity of the Indian Constitution and Constitutional Machinery by allowing extra-constitutional authorities, insufferable nationwide corruption, nepotism, favouritism, and dynastic rule would be a complete disaster as an investigator merely on account of the failures cited in paragraph 1 to 7 above.
9. The Supreme Court and High Courts ought to have appreciated that politicians, the bureaucracy and the vested interests in India have vested interest to perpetuate corruption on a mafia industrial scale like the Italian mafia. As a former advocate of the Supreme Court of India and currently a Solicitor of the Supreme Court of England and Wales and firm believer in Rule of Law without which there is no democracy I feel so let down by the Supreme Court and High Court Judges who are mandated to be the custodians and guardians of the fundamental rights of all citizens in India and not merely the privacy of some prominent ruling family members. I do not mind being proceeded against for Contempt of the Court if anything contained here in is an attempt to denigrate the standing and good repute of the Supreme Court in a malicious way.
For the first time, the people of India get a peek into the spectrum of conspiracy hatched between the politicians, bureaucrats, corporates & media. The plundering of national wealth comes so easy to these claimants of moral uprightness. There was a time when the Growth of the Nation had a pride of place for the House of Tatas. That was a period much before Mr. Ratan Tata took over the stewardship. But for the little reference to his black tie & Niira Radia's black gown, none of the other tapes released so far have anything of a personal nature. What does Mr. Tata fear? He should have the wisdom to understand that there is no private life which has not been determined by a wider public life.His privacy ends where my right to information in the national interest begins. The tapes reveal how Corporates are adept at fixing ministerial births, parliamentary debates, protests, Judges, media stories etc etc. Acceptance of corruption as a way of life has become the norm in India. The scourge of this disease called corruption seems to engulf every branch of Government or Public Life. Hence the corporates & others are having a field day in putting their unabashed unscrupulous & uncontrolled interests ahead of the nations. Shame on the whole lot who are a part of this nexus.
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