Every scam brings in its wake a law that the government of the day hopes would prevent the recurrence of similar irregularities. The corporate and accounting scandals that hit companies like Enron, Tyco International and WorldCom prompted the US regulatory system to put in place the Sarbanes-Oxley Act in 2002 in the hope that similar problems would not affect the corporate sector. In India, too, the securities scam in 1993 led to the tightening of the securities trading law and an overhaul of the securities trading system that the Reserve Bank of India followed till then.
The latest 2G telecom licences scam, however, has failed to initiate a debate on the need to plug gaps in the legal framework for granting licences and spectrum to telecom service providers. It is possible to argue that there is no need to change the law. All that the government needs to do is enforce the auction system in an open and transparent manner — in much the same way the government allotted the 3G licences and spectrum to successful bidders early this year. The 2G scam did lead to windfall gains for some telecom players, and government representatives as well as ministers colluded to facilitate those gains at the cost of others. So the law enforcement agencies should establish the illegality of such gains and impose suitable penalties on the guilty.
A debate on introducing fresh legislation, however, has begun but this is not directly related to granting licences or spectrum. The government is now toying with the idea of strengthening privacy laws in the country. The need to introduce a new code to protect ordinary individuals’ privacy has arisen after large portions of the legally tapped telephone conversations between corporate lobbyist Niira Radia and her clients, politicians and well-known journalists were leaked to the media.
Mind you, the government had authorised the tapping of the telephone conversations of Radia for about a few months, coinciding with the period when the United Progressive Alliance was forming its new Cabinet in 2009. As senior government officials in the revenue department of the finance ministry will testify, tapping phones of people suspected of violating any economic law takes place regularly. All it requires is for a senior official, often of the rank of a member of the central board of direct taxes or the central board of excise and customs, to approach the home secretary at the other end of North Block and secure his permission to start tapping phones belonging to the suspected person.
What is unusual about the current controversy is that the tapped conversations leaked. Once the leaked conversations became part of the documents that a public interest litigant filed before the Supreme Court, the media also began publishing the leaked conversations, exposing the manner in which corporate lobbying took place to fix who should get what ministerial portfolio. The embarrassment caused to Ratan Tata, who has filed a case seeking protection of his rights to privacy, was not because his phone conversations with Radia were tapped. It is the leak that caused him embarrassment.
The privacy laws, whatever their final contours, are not going to prevent phone tapping or when the government considers that necessary. Prime Minister Manmohan Singh has already made it clear that while the government should protect its citizens’ privacy, there can be no blanket ban on phone tapping. It should also be clear that mere phone tapping by the government does not breach privacy. It is the leak that creates the problem. Hence, the proposed law on privacy should first decide how it would tackle issues concerning the leak of tapped phone conversations.
It is also a fact that governments and companies have often used the instrument of deliberate leaks to facilitate a larger public debate on certain issues through the media. There is even a view that leaks are one of the foundations of a thriving democracy. There are, therefore, larger questions that the media and the government must debate before the new privacy laws are in place. Do leaks serve a purpose? Did WikiLeaks play a useful role in uncovering the way the US government kept track of important leaders in different countries? Is there anything private about a leader who is a public person? Who is a public person? Should the law prevent media from using leaked information and bring them out in the public domain? What should be the nature of leaks the government should always prevent?
There is no doubt that behind every leak there is a hidden agenda. Even the leaked tapes involving Radia’s conversations must have served a useful purpose for a section of industry or the government and perhaps a few political parties. The big question is, how the privacy laws should be strengthened without shooting the messenger and yet ensuring that leaks do not serve vested interests or tarnish the reputation of individuals. Public interest should always remain the primary guiding factor.
