The Supreme Court today asked the Government to place in a sealed cover the copy of the complaint that formed the basis for intercepting corporate lobbyist Niira Radia's telephonic conversations as news Magazines--Open and Outlook--opposed Tata Group Chief Ratan Tata's plea to stop further publication of the tapes.
The apex court asked the Attorney General G E Vahanvati to place before it the complaint received by the Finance Minister on November 16, 2007 alleging that Radia had within a short span of nine years built up a business empire worth Rs 300 crore.
The complaint had also alleged that she was an agent of foreign intelligence agencies and she was indulging in anti-national activities.
Government, in its affidavit last week, had maintained that conversations were recorded as part of the surveillance ordered by the Directorate General of I-T (Investigation) on that complaint.
"The Attorney General may produce the copy of the complaint in a sealed cover," a bench comprising Justices G S Singhvi and A K Ganguly said after Vahanvati replied in affirmative to its question on the existence of the complaint.
The Bench, which took umbrage at the alleged distortion in the reporting of the previous proceedings in the Supreme Court, said "till we decide nobody's name should be dragged in media".
"The image of a person should not be tarnished. All of us know that the most priced right is the right to dignity and none of the right is above it," it observed.
Whether conversations are of private or public nature?
Meanwhile, the Bench allowed the intervention applications of an NGO, Centre for Public Interest Litigation (CPIL) and Chennai Press Club, opposing Tata's petition and sought making public the conversations between Radia and others which are not purely private in nature.
Senior advocates Anil Divan and Rajeev Dhavan appearing for Outlook and Open magazines respectively, questioned the maintainability of the petition filed by Tata.
Both of them submitted that Tata's petition was not in public interest and it was rather aimed at protecting his private interest.
Divan said Tata's writ petition does not even raise any cause of action for being entertained by the court.
The court was hearing a petition filed by Tata group chief Ratan Tata seeking stopping further publication of the leaked conversation between him and Radia.
Senior advocate Harish Salve, appearing for Tata, submitted it has to be seen with "what responsibility media has been conducting itself".
He made the submission after referring to the latest report that the Outlook magazine was coming out with 800 more such tapes.
At this point, the Bench, which was anguished with the alleged distortion in reporting of court proceedings on the issue, said "if this continues judges will stop asking questions".
"Any part of the tape which concerns you personally should not be made open for all. Somebody must go into the transcripts whether conversations are of private or public nature and then at the end it can be decided whether it can be brought in public domain or has to be in private domain," it said.
'They could have filed a case of defamation'
However, when Salve sought to explain how the media was run by top industrial houses, counsel appearing for the magazines opposed him saying he was raising points which were not part of Tata's petition.
Divan and Dhavan said Tata's counsel cannot raise those points which are not part of the petition and if he wants to make such submission he has to file an affidavit in this regard.
"How statements are made which are not part of the record. If he wants to say so many things he has to put it on affidavit so that we can reply. He (Salve) has raised question which does not arises from the petition (of Tata)," Divan said.
He said Tata has not sought any relief against the media nor the petition is a public interest litigation but a "private interest litigation".
"The writ petition (of Tata) raised no cause of action," the senior advocate said and added that he was only making "skeletal points" and brief propositions on behalf of Outlook and the "freedom of press needs to be zealously guarded".
Dhavan, who took an identical line, said "we don't know what is the grievance against the Open Magazine".
He contended that Tata's petition was not maintainable and the alternative remedy for him was to go for a case of defamation against the magazine.
"If they wanted to file, they could have filed a case of defamation," he said.
Following which the bench allowed Tata to file a supplementary affidavit containing those submissions and responses to the government affidavit on his petition by the first week of January 2011.
The bench said two magazines Open and Outlook will file their replies within three weeks after that and listed the matter for further hearing on February 2.
Attorney General G E Vahanvati said the CBI will not file affidavit in this matter.
During the hearing, Salve said money has to come from somebody for running the media but there was a need to strike a balance in the functioning of the media.
"How delicate a balance has to be struck when you talk of free media and individual's privacy," he said.
Divan, who placed before the bench the skeletal submission on behalf of Outlook magazine, stated that "the authenticity of the tape records has not been challenged" by Tata.
"Tata himself has said 'we do not want any injunction against the media'," Divan contended, stating that "this is a private interest litigation (not a Public Interest Litigation -PIL) against the Government as no fundamental right can be enforced under Article 32 against private individuals".
"In the petition there are no averments as to which part of the tapped conversations relate to infringement of the petitioner's right of privacy. In the absence of these particulars, the writ petition discloses no cause of action," he said.
Tata, in his petition has argued that making public his conversation with Radia also violates his Right to Speech and Expression under Article 19(1)(a) of the Constitution.
Outlook magazine submitted that it is well settled law that "the freedom of press and media is to be zealously guarded in the democracy because the objective is to inform the citizen and protect the citizen's right to know how, inter alia, governmental authorities functions."
"The tapped conversations, inter alia, deals with matters of public interest, matters relating to good governance, matters relating to possible corruption, matters relating to secret and baleful influences on centers of power and are absolutely essential for a meaningful debate for the Indian society," submitted Outlook.
Moreover, the magazine further submitted that Ratan Tata himself has brought the matter in public domain by writing an open letter on December 2 referring to political parties and former Union Telecom Minister A Raja.
"The petitioner (Tata) is a public figure and after the first order of the this court on December 2, 2010 has entered into public debate by writing an open letter which has been widely disseminated. He has reffered to political parties, former Union Telecom Minister A Raja and also defended the Tata group's behaviour as ethical. The whole controversy now has been put in the public domain by the petitioner itself," the magazine submitted.
Outlook contended," It is well settled law that if a public figure makes an incorrect claim then it is the duty of the press/media to bring material in the public domain to demonstrate that it is incorrect."
"The petitioner can not obtain indirectly what it has not sought directly. The prayers in the petition seem to be in an effort to block and gag the media by indirectly asking the government authorities to do so. This is impermissible," said the magazine.
Meanwhile, senior advocate Harish Salve appearing for Tata raised some questions of law on right of privacy and journalistic privilege.
"Whether the right of privacy, an integral facet of personal liberty under Article 21 of the Constitution of India, protects conversation obtained by the government or other lawful authority by interception of telephone from exposure in the public domain," asked Salve.
He further asked "whether the material obtained by interception of telephonic conversation by a law enforcement agency, so far as it relates to conversation between private persons, is protected by the right to privacy and can be published without their permission".
Produce Complaint Against Radia: SC to Government
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