The Radia mess: a legal conundrum

The recent 2G scam and disclosure of the ‘Radia tapes’ has thrust into focus the ethical and legal tussle between the right to privacy and public interest. While the transcripts of the tapes have drawn a sharp reaction from the public and polarized the debate, it has also set the stage for a debate on the legality and procedure with respect to the tapping of telephones. This article will attempt to illuminate the controversy from a legal point of view.

Legality of tapping phone conversations
The tapping of telephone conversations is governed by the provisions of the Indian Telegraph Act, 1885 (“Telegraph Act”). The relevant provision is Section 5(2) of the Act. The issue of tapping of phone conversations was discussed by the Supreme Court at length in PUCL v. Union of India (1996), wherein the constitutional validity of Section 5(2) of the Telegraph Act was challenged. Dissecting the provision, the Supreme Court stated that the first step required for interception of messages is:

1. The occurrence of any public emergency, or
2. Existence of a public safety interest.

Thereafter, the competent authority can pass an order calling for interception after recording its satisfaction that it is necessary or expedient to do so in the interest of

1. Sovereignty and integrity of India,
2. The security of the State,
3. Friendly relations with foreign states,
4. Public order, or
5. For preventing incitement to the commission of an offence.

The Competent Authority referred to in the aforementioned pronouncement is

(a) The Central Government,
(b) The State Government, or
(c) Any officer specially authorized by the Central Government on this behalf.

However, the Supreme Court criticized the fact that a just and fair procedure has not been developed for the purpose of regulating this provision despite the Telegraph Act being in usage for over a century. It criticized the fact that even though Section 7(2) of the Telegraph Act allowed the Central Government to make rules regarding the precautions to taken, there had been no efforts from the Government in this regard. In order to rule out arbitrariness in the exercise of power, the Supreme Court formulated certain ‘procedural safeguards’. Among the safeguards formulated, the critical ones are:

(a) The order for telephone-tapping has to be issued by the Home Secretary, government of India or the Home Secretaries of the State Governments. Further delegation may be carried out only with respect to urgent cases.

(b) Before issuing the order, the question whether the necessary information could be acquired by other means has to be answered.

(c) The use of material should be limited to the minimum that is necessary under the provision.

(d) A high level review committee would investigate the relevance of the order, within two months of the passing of such order.

After the above stated judgment was pronounced, Rule 419A was inserted into the Indian Telegraph Rules, 1951(“Telegraph Rules”), which mirrors to a large extent, the safeguards given in the PUCL case. This particular rule would be helpful in deciding whether the phone-tapping was done according to the proper procedure laid down by the law.

Admissibility of tapped material as evidence
Tape recorded evidence is admissible as evidence. The use of tape recorded evidence was discussed in detail in Yusufalli Esmail Nagree v. State of Maharashtra (1967), wherein the Supreme Court held that “Like a photograph of a relevant incident, a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under s. 7 of the Indian Evidence Act”. In N. Sri Rama Reddy v. V.V. Giri (1970), it was stated that the tape-recording can be treated as primary and direct evidence.

However, in admitting such evidence, the court will be concerned about the following matters-

1. The court will find out whether the evidence is genuine and is free from tampering or mutilation
2. The court may ensure that there has been scrupulous conduct from the authorities

Elaborating on this aspect, the Supreme Court in R.M. Malkani v. State of Maharashtra (1972) held that the telephonic conversation of an innocent citizen will be protected by the courts against wrongful interference. But this will not shield a guilty citizen from the consequences of his actions.

It must be noted that the manner in which the evidence has been obtained will not act as an obstacle to the court accepting it. It is no bar to admissibility of evidence that evidence has been obtained by illegal means. In Maghraj Patodia v. R.K. Birla (1970), the Supreme Court ruled that if a document was obtained by illegal means, it is not a bar to its admissibility, provided that its relevance and genuineness are proved. However, the means by which the information was obtained is an important factor in proving genuineness. Again in R.M. Malkani v. State of Maharashtra, the Supreme Court held that “There is warrant for the proposition that even if evidence is illegally obtained it is admissible”. This view was endorsed by the Supreme Court in State (N.C.T. of Delhi) v. Navjot Sandhu @ Afsan Guru (2005) i.e. the parliament attacks case.

In the 2G scam case, the facts and circumstances will have to be looked into. The court will look into two relevant factors i.e. tampering or mutilation of evidence and scrupulous conduct from the authorities. As long these conditions are satisfied, the evidence is admissible. Finally, it must also be noted that that the tapes that have been ‘leaked’, constitute a small portion of the 5000 odd tapes. At this stage, it is not possible to gauge the entire gamut of recorded evidence. As result, it is not possible to comment on the substantive value of the evidence recorded.

Privacy vis-à-vis public interest
The term privacy has not been clearly defined. In PUCL v. Union of India, the Supreme Court held that privacy as a concept may be too broad and moralistic to be defined judicially. The claim for infringement of right to privacy would depend upon the facts and circumstances of each individual case. In India, the Supreme Court has recognized that the right to life, embodied under Article 21 of the Constitution of India, includes the right to privacy.

Generally speaking, the state has no right to invade the privacy of any individual. However, there may be certain extraordinary situations in which the state may be allowed to invade the privacy of an individual. Certainly, the Supreme Court has endorsed the view that reasonable restrictions can be placed on the right to privacy. In State of Maharashtra v. Bharat Shah (2008), it was stated that the right could be curtailed in accordance to the procedure validly established by law.

In addition to the safeguards already stated, Rule 419A (14) of the Telegraph Rules also stipulates that adequate and internal checks are necessary to ensure that a) unauthorized interception of messages does not take place and b) extreme secrecy is to be maintained in the interests of privacy. This is the gist of the arguments raised in the petition by Mr. Ratan N. Tata before the Supreme Court. It has been argued that there is a need to balance the need for investigation with the constitutional duty to safeguard privacy. At no stage does the petition directly attack the government’s prerogative to tap telephones. It is mainly attacking the leaking of sensitive information and its effect on the reputation of the petitioner.

There are two key issues involved here. Even if authorized and done properly, tapping may very well violate the privacy of innocent third parties. More importantly, the question of public disclosure has to be satisfactorily answered. There is no doubt that the right of the public to know the truth has to be balanced with the right to privacy. Guidelines that strike a fine balance will have to be formulated. However, the transcripts themselves are a damning indictment of our system, where checks and balances have failed, where everybody plays for a stake. In such circumstances, the right of the public to know the truth is unassailable.

Ravi Kini is a Partner, and Kiran Prakash is an associate at law firm, MV Kini & Co. Views expressed are personal.