The Radia tapes are illegal in their making and in their disclosure
In all the heat and dust raised by the disclosure of the Radia tapes, the country has been asked to forget something essential: the disclosures and wiretaps are both entirely illegal. The persons now accused of all manner of things were never the subjects of those phonetaps. The purpose of the recorded conversations has nothing at all to do with the uses to which they are now being put. What these tapes do show, and what we are being asked to accept without question is that the government is permitted, even entitled, to illegally curtail our most fundamental civil liberties and that this is not only perfectly all right but is actually necessary.
II. The origins of the Radia tapes: IT and CBI snooping
It’s necessary to understand why these recordings were made in the first place, and how. The tapes cover two disjunctive periods, August to October 2008 and May to July 2009. The IT department claimed to have obtained permission from the Home Secretary to “put” the “telephones lines of Ms Nira Radia and some of her associates under observation” (you have to love these euphemisms) for suspected tax violations, of Niira Radia’s lines. The basis on which this permission was obtained is also not disclosed; and that’s important, because it’s not for every piffling thing that a citizen’s phone line can be tapped.
On 16 November 2009, Vineet Agarwal, then Deputy IGP of Police, Anti-Corruption Branch, CBI, wrote to Milap Jain, the Director-General Income Tax (investigations) seeking access to these tapes. On 20 November 2009, Ashish Abrol, the Joint Director of Income Tax replied saying the phonetaps were “authorised” (the rest of the letter was entirely and only about telecom licenses) and invited Agarwal to collect “extracts”.
This is where it gets interesting. Among the papers is a “top secret” and “confidential” document dated 25 August 2009 from the DGIT’s office to a member of the Central Board of Direct Taxes. The document repeats that Ms Radia’s phones have been tapped; has a tabulated summary of findings against the Unitech group; and contains remarks about Tata Realty. Some of this material is even in the public domain—the letter itself says so. Nira Radia is said to be a go-between arranging finances. The wiretaps are referred to as “databank”. Apparently annexed to this are internal evaluation reports for June and July 2009 and, interestingly, a comment providing context for a remark made on the whispersinthecorridors website, a web property run by Suresh Mehrotra about various shenanigans in the bureaucracy.
It is in this document, and the two pages that follow, that we find a flood of names of individuals and companies: Ratan Tata and the Tata group, Mukesh Ambani and Reliance, Sunil Mittal and Bharti Telecom and host of others, including several politicians (prominently, A. Raja). There seem to be many inchoate charges: money laundering, foreign exchange violations and more.
And then there’s this line:
On Mrs Radia’s and Kanimozhi’s behalf Barkha Dutt and Vir Sanghvi were negotiating for ministerial berth DMK members especially Raja with Congress members.
Sanghvi features a second time, along with Suhel Seth, as one of Radia’s so-called associates, but no one else. Nobody seems to have considered the effect of these documents.
III. Big brother is listening, and that’s OK
Between April and May 2010, following the furore in Parliament, The Pioneer and Outlook both reported on phone and wire-taps being routinely, clandestinely and illegally carried out on politicians and others. Outlook ran two back-to-back issues (3 May 2010 and 10 May 2010) with cover stories on the matter. Each issue had several articles mentioning a gaggle of those spied on. The common theme was that phonetaps, engineered by the National Technical Research Organisation based in a secret and deliberately squalid location at Kala Ghoda in Mumbai, are entirely illegal, frequently without authorisation and an unconstitutional invasion of privacy. One article mentions the corruption, inefficiency and nepotism within the NTRO itself, and that it’s the first intelligence agency in independent India to be investigated by Comptroller and Auditor General. The NTRO was, supposedly, set up for a single purpose: to prevent another Kargil-type intelligence failure.
On 15 November 2010, portions of these tapes were filed as annexures to a petition submitted to the Supreme Court. The source of the leak remained undisclosed. Open magazine released parts of the transcripts; Outlook followed. Neither vouched independently for the accuracy or legitimacy of the tapes. Contrary to its line in the May 2010 articles, Outlook’s pendulum went the other way: every article now presumed the legality of these tapes.
All the phonetapping authorisation documents have been online since 12 May 2010. They were earlier published by the Hindu, but taken off the website on the basis that the authenticity of these documents could not be verified. Strange, though, that nobody was as squeamish about the authenticity of the tapes themselves; and there is no explanation other than these documents for the phonetaps. On 30 November 2010, after the disclosures by Open magazine and Outlook, the Indian Express referred to the first two letters again; presumably the documents are, therefore, authentic. On the other hand, if the 2009 interagency correspondence is not authentic (as Outlook continues to claim), the problem is even worse, for it means that the tapes are entirely unauthorised. Interestingly, nobody seems to have said that the correspondence and accompanying documents are fabricated or forged. Why should the documents be disbelieved but the tapes taken as the truth?
Here’s the problem. None of those now being pilloried is the subject of this investigation, even assuming it’s legal. On the basis of these wiretaps, which are illegal in their making and in their release, we are asked to believe that a number of people (Tata, Ambani, Mittal, Dutt, Seth, Sanghvi), none the subject of the phone-tap ‘authorisation’, committed some barbarous act for which they must be called to account.
IV. The Supreme Court on uncontrolled phonetapping
The tapping seems to be in direct violation of several decisions of the Supreme Court, and against a wide range of opinion from all quarters. Even leaving aside the early Supreme Court decisions of 19643 and 19754 in criminal law, and later ones on privacy in banking5 (2005); medical issues6 (specifically, AIDS; 1998); and narcoanalysis7 (2010), there are two decisions of 19948 and 19979 that specifically deal with a situation like the present one. In the 1994 decision10, the Supreme Court said:
(1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a “right to be let alone”. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent—whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.
17. We have, therefore, no hesitation in holding that right to privacy is a part of the right to “life” and “personal liberty” enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy, Article 21 is attracted. The said right cannot be curtailed “except according to procedure established by law”.
18. The right to privacy—by itself—has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as “right to privacy”. Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is a part of modern man’s life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of a man’s private life. Right to privacy would certainly include telephone conversation in the privacy of one’s home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.
19. Right to freedom of speech and expression is guaranteed under Article 19(1)(a) of the Constitution. This freedom means the right to express one’s convictions and opinions freely by word of mouth, writing, printing, picture, or in any other manner. When a person is talking on telephone, he is exercising his right to freedom of speech and expression. Telephone-tapping unless it comes within the grounds of restrictions under Article 19(2) would infract Article 19(1)(a) of the Constitution.
The Supreme Court specifically required guidelines to be framed by government. That hasn’t been done, at least not in the narrowly tailored way the Supreme Court intended. For the government to subvert a decision of the Supreme Court like this is monstrous, and more so in the context of what the Supreme Court calls an unconstitutional infringement of the right to life. If there is an exception, it is only in the case of a “public emergency” or “public safety”. What public emergency and what public safety justified these tapes? It must follow, necessarily, that the tapes—even if “authorised” by some bureaucrat—are entirely illegal.
V. The “fruit of a poisoned tree” and the failure of logic
Nothing on those tapes constitutes an “admission” under criminal statutes. At best, they may be used to focus on certain aspects of an ongoing investigation; but for an investigation that is essentially related to the movement of large amounts of money, you don’t need phone-taps. In an article in the 10 May issue of Outlook, Anuradha Raman wrote, “What sort of government would snoop on its own citizens and their elected representatives with scant respect for their privacy? The answer, naturally, has to be this: a repressive government, one that does not enjoy the trust of its own people.” Today, we have to ask: what sort of journalism and what kind of citizen accepts the results of such snooping without thought or concern? The answer suggests itself.
Eavesdropping is always only the handiwork of a bully and a coward; and only a thoroughly incompetent and lazy government agency needs to use it for ‘gathering intelligence’. Only an inept and corrupt government would truly believe that it is perfectly all right to expropriate part of the most basic of civil liberties in pursuit of the narrow contractions of criminal and tax laws.
All of this seems to have been entirely, and perhaps deliberately, eclipsed in the quest for more salacious material. Add to that the assertions that the tapes are incomplete, uncorroborated and possibly doctored and we have something that can only be described as entirely unreliable.
All the allegations now being made also suffer from a fatal logical flaw, the post hoc, ergo propter hoc fallacy: after this, therefore necessarily because of this; the questionable or false cause fallacy. This is a tempting fallacy, because the ordering of things in time seems apparently to have a cause and effect relationship. Therefore: because Radia spoke with Dutt/Sanghvi in 2009 regarding ministerial berths; and because Raja got telecom; therefore Dutt and Sanghvi were in cahoots with Raja. There’s only one word to describe this, and it’s unprintable.
In America, tapping has to be authorised by a judge. The conditions on which it is allowed are severely constrained. Anything obtained by any other means is “fruit of the poisoned tree” and cannot be used in court. Used outside court any such use would immediately create a cause of action in damages. Why are we so eager to sink our teeth into these poisoned apples?
VI. Of journalists and power brokers
Far too much has been said already about the journalists ‘caught’ on tape, most notably (though why only they remains a mystery) Barkha Dutt and Vir Sanghvi. What’s been said amounts, roughly, to this: they spoke to a media person on political issues; politics and business got mixed together; journalistic integrity was irredeemably impaired; both were instrumental in the allocation of cabinet berths and ministerial portfolios; both have a ‘slant’. There is no charge of corruption, money-laundering, bribes, kickbacks or any of the tax or financial misdealings which were the only reason for the so-called making of these recordings in the first place. So these people are acceptable collateral damage—on the basis of illegal recordings, illegally released, without accreditation or disclosure of source or any form of authentication. You have to ask: why only them? Saying j’accuse is easy if you don’t have to prove anything.
Power brokers exist everywhere, whether you call them consultants or professionals. Anyone who believes that US policy is not driven by corporate business interests, from rifles to oil, must be delusional. On NDTV’s roundtable on Monday night, Manu Joseph of Open Magazine insisted that Dutt should have seen the intercession of Radia in political negotiations as the “story of the decade”. She responded that that was not her assessment. Joseph is entitled to his view, however disingenuous, but that does not make it an absolute paradigm. He also speaks with the advantage of 20/20 hindsight; and hindsight, as we know, is usually the lack of foresight. That is no crime, or even a violation of any ethical norm. Moreover, these allegations are more than faintly ludicrous coming as they do from large swathes of the Indian print media which, as everyone knows, spawned the demonic ‘paid news’. If there is a true failure of journalism’s ethics, it is there; and yet no accusation of this intensity or stridency is being made against the owners and editors of our national newspapers. Dileep Padgaonkar was right when he said on NDTV that nobody in journalism is lily-white; many of our national newspapers are distinctly deep grey. Knowing this, we fine-tune our mental channels accordingly.
Radia’s involvement was no story then and is still no story now, simply because there is no point in denying what we all know: politics is business and business is politics; and the two have always conflated. One of the jobs of government is to keep business going. I believe that’s what they call the ‘economy’. This is historical: one could make a very compelling argument from the Bible that the crucifixion of Christ was really nothing but power and land politics doing a deal with the money-lending and merchant communities. What matters, therefore, is not this mixing of the two, which is an entirely unrealistic concept, but the way it is done. In India, corruption is now so rampant that we no longer believe that any form of success is possible without corruption; and that every success must be, by definition, tainted.
VII. Sound and fury, smoke and mirrors
Accusations of professional misconduct are serious and must be made with precision; rants about style and manner are poor substitutes. An allegation of bias is undeniably serious. Against Dutt, there is no evidence of this, and all the noise of the past two weeks was sound and fury, signifying nothing. Manu Joseph’s article post the NDTV debate still does not state with any precision what it is he accuses Dutt of doing or not doing. There’s a lot of rhetoric there, and an unpalatable amount of superciliousness—a bit rich from someone who writes of something he calls a “tactical guffaw” (does he really mean a strategic bellow of laughter or something else entirely?). What is, however, alarming is Joseph’s belief that
“there are times when journalism need not be a process of telling the whole truth; instead it can become a way of finding extraordinary devices to tell a fragment of the truth.”
Given the nature of the questions he put to Dutt, and his repeated trumpeting of Indian journalism having been fatally wounded by Sanghvi and Dutt, this is a truly astounding thing to say. In short, he agrees that journalists can pick and choose and still retain their integrity in delivering news. So what’s the accusation again? This is being hoist by your own petard, and that dwindling susurrous you hear is the sound of an useless accusation deflating.
Sanghvi’s case is somewhat trickier, not because of any financial issues again, but because of his column on the Ambani brothers’ dispute and his pre-scripted interview of Mukesh Ambani. The allegation confuses news reportage with an opinion piece. Sanghvi’s column, Counterpoint, is not reportage; it is an opinion, and no one is being duped into believing that this breaking news. Sanghvi is entitled to take a position, regardless of the source; and his column wouldn’t exist without him taking a position. So, too, any television interview.
In its most recent issue, Open tears into Sanghvi. Other portions of the tapes are reproduced, interspersed with editorial content. There are links to two Counterpoint issues of 20 June 2009 and 15 August 2009 regarding the Ambani brothers dispute. Someone called Manoj (supposedly a colleague of Radia’s) is reported to have said to Radia that Sanghvi carried something “verbatim” on the matter. Indeed a portion of one column exactly matches a taped conversation. But that column also has other material, and the taped conversation goes on to say something to the effect that “we have also had to take some knocks”. In other words, Sanghvi’s column was not a word-for-word reproduction of what Radia suggested. Indeed, in his August column, Sanghvi mentions his conversation with Radia and states his position. Neither column was “news”. Why he chose to take a particular line, or on the basis of what conversation is totally irrelevant. Readers are free to accept or reject his view, savvy enough to make up their own minds.
This distinction between news reportage and opinion work, though very real and possibly determinative, is one that no one has made. No one watching Sagarika Ghosh or Karan Thapar take on Ram Jethmalani can be in any doubt of the ‘slant’ or ‘bias’ of both interviewers, all of it entirely pre-determined and very likely on the basis of a foregone conclusion based on conversations with others. Both decided that Mr Jethmalani was guilty of moral turpitude in defending Manu Sharma. Neither seemed to have even a nodding acquaintance with the fundamentals of legal procedure. Having a point of view, an agenda or even a bias in expressing an opinion is not wrong. Every comment everywhere is loaded with this baggage. I don’t much care for Arnab Goswami’s style on the Times’ Now Newshour show, but no one watching it has any doubt that Goswami has both a point of view and an agenda and very possibly a bias—and, frankly, regardless of how he makes his point, he always has a point to make. His perspective is usually faultless; I share his bias. It’s about substance, not style.
VIII. Every bad accusation deserves an apology
Viewers and readers know whom to trust and for what. TN Ninan suggests an apology from Sanghvi and Dutt (as others did to Dutt on the NDTV special show on Monday night’s NDTV roundtable) but no one bothers to specify for what exactly. Shoba Narayan, in a similar vein, says, “Should Barkha Dutt and Vir Sanghvi say mea culpa for letting down their readers and viewers?” Letting down how? BV Rao’s column in GovernanceNow also does not make a convincing case against Dutt for anything other than the woolly generalities Dutt herself has repeated: that she may have been gullible, innocent, may have made an error of judgement. But in doing what precisely no one will say except Manu Joseph, and the line he takes is weak. Is this the best case that can be made from all those hundreds of hours of tapes, even assuming that they can be used?
Rao draws a parallel with the ‘stings’ against Hansie Cronje and Bangaru Laxman. That is both naïve and inexact. Those were stings by private parties, and they were directed against specific individuals. This is no sting. There was only one ‘subject’ of the investigation, Radia; the others were not, and therefore to use this material against them is unacceptable. If Radia’s unnamed “associates” are to be included as fellow subjects of the investigation then the tapes are entirely illegal because there has been authorisation for those people, nor have their lines been tapped. Lastly, the investigation was for one purpose: tax violations. To use them for anything else, leave alone imaginary charges of not having done “the story of the decade” would be laughable if it wasn’t so utterly monstrous. No law permits an agency to “inherit” a wiretapping authorisation from another. These authorisations, even where legal, are narrowly focussed and are non-transferrable. They cannot be lent, loaned, borrowed, bartered or exchanged. This is no exposé, no sting. It is an invasion of citizens’ civil liberties by the government.
The allegations against Vir Sanghvi, like those against Barkha Dutt, assume that all readers and viewers are brain-dead dimwits; and, presumably, that it is only Open magazine or Outlook that can be relied on to dish out the ‘real’ stuff (legality, authenticity, reliability, completeness and corroboration be blowed). The worst thing that can be said about Dutt and Sanghvi on the basis of these tapes is that they perhaps had a misplaced notion of their place in the larger scheme of things. The answer to that is simple. Who doesn’t? The tapes don’t ‘reveal’ a thing of real substance against Sanghvi, Dutt and several others. All we have are smoke and mirrors.
The decision that Sanghvi made (or was asked to make) to retire Counterpoint was, therefore, singularly unfortunate. It did an enormous disservice to his readers. It was an implicit admission of wrongdoing where none was needed. His explanation—that Counterpoint has a life of its own and does not need or deserve a drubbing— convinced no one. It was like saying I’m putting my Barbie doll to bed till you all agree to play nice. If the comments below his column on the Hindustan Times website are anything to go by, of Counterpoint’s 30-lakh readers, a very large number are detractors. Some are incredibly violent in language and tone. Many suggest truly horrific things be done to Sanghvi. A columnist who gets such responses must surely have a much thicker hide.
Neither Sanghvi nor Dutt needed to explain or apologize. What they should have done was simply to keep quiet and carry on. Anything else is needless provocation to the easily provoked. Apologies and explanations make matters worse. Protestations of innocence, gullibility and anthropomorphized opinion pieces insult the intelligence of readers and viewers everywhere.
IX. The faceless systems of oppression
The 2006 Academy-award winning German film Das Leben der Anderen (The Lives of Others) is precisely about wire-tapping in what was East Berlin by the Stasi, the GDR’s secret police. The film’s director, Florian Henckel von Donnersmarck, said that “more than anything else, The Lives of Others is a human drama about the ability of human beings to do the right thing, no matter how far they have gone down the wrong path.”
“This is an uplifting thought. But what is more likely to save us from going down the wrong path again is recognising how human beings can be trained and forced into faceless systems of oppression, in which conscience is extinguished.”
In all the heat and dust raised by the disclosure of the [Radia tapes][nrtp], the country has been asked to forget something essential: the disclosures and wiretaps are both entirely illegal. The persons now accused of all manner of things were never the subjects of those phonetaps. The purpose of the recorded conversations has nothing at all to do with the uses to which they are now being put. What these tapes do show, and what we are being asked to accept without question is that the government is permitted, even entitled, to illegally curtail our most fundamental civil liberties and that this is not only perfectly all right but is actually necessary.
[nrtp]: http://www.openthemagazine.com/article/nation/some-telephone-conversations "The X-tapes"