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Mr. Ratan Tata, $73 bn worth Tata group chief, is begging for right to lifecomplains that his right to privacy is being violated
Unbelievable! Of all, Mr. Ratan Tata, $73 bn worth Tata group chief, is begging for right to life. Invoking Article 32 to secure Article 21, he complains that his right to privacy is being violated. Being a beneficiary in 2g spectrum allocation, which is biggest scam of independent India, he asks Supreme Court to direct an iron veil of secrecy around Radia Tapes to stop leaking to public through new media, i.e., Internet. It is his privacy! This nation need not know it! It is not about his private conversation with his wife or with his standing counsel. His PR chief Mrs. Nira Radia will have ‘private’ talk with famous journalists, news anchors, MPs, leaders, bureaucrats about politics, business, leadership, coalition, cabinet berths, portfolios, 2G spectrum, Raja, DMK, Congress and so on… and nothing is public affair. Everything his PR Chief Radia speaks is private affair, corporate matter, privileged communication, and everything is part of his ‘private life’, right to life. If these secrets are not kept secret, he cannot survive. It spells end of life. The apex court has to protect his right to life by securing these secrets!
On the other hand senior counsel Prashanth Bhushan asked the Supreme Court not to hold back the transcripts of corporate lobbyist Niira Radia’s telephonic conversations from the public gaze as the people had a right to know how political governance was functioning in tandem with vested interests. Appearing in the apex court for the Centre for Public Interest Litigation, he told the court that the intercepts were a telling commentary on how things were done in the government. Prashanth Bhushan said that there was an attempt that transcripts of 5,851 intercepts do not see the light of the day.[1]
After due authorization from the Home Ministry the Indian Income Tax department tapped Radia’s phone lines for 300 days in 2008-2009 as part of their investigations into possible money laundering, restricted financial practices, and tax evasion. The tapes revealed that Radia had frequent conversations with politicians, A. Raja, former Telecommunication and IT Minister, Kanimozhi, Rajya Sabha MP, Journalists, Barkha Dutt, Group editor, English news, NDTV, M.K. Venu, senior business journalist, Prabhu Chawla, editor of India Today magazine, Rajdeep Sardesai, Shankar Aiyar, then with India Today Group, Vir Sanghvi, HT advisory editorial director, Industry Heads, Ratan Tata, Tata Group, Tarun Das, former CII head, (Mention of) Mukesh Ambani, Reliance Industries, and Ranjan Bhattacharya (foster son-in-law of former prime minister Atal Behari Vajpayee), Suhel Seth, management guru and columnist.
When the print & electronic media maintained stoic silence pretending to ignore sensational tape tales, this news was prominently debated on social networking sites Twitter and Facebook. It was called the barkhagate which became number one topic on Twitter in India for more than a week. According to the Washington Post, “Twitter has played an important role in launching what has become an international conversation on the issue, with the Indian diaspora weighing in”. It was the Fifth Estate, netizen with the web technology which really exercised freedom of expression and kept the issue in lime light, while Fourth Estate was blocking out the sensation involving some of its prominent faces.
In one of the tapes, an unidentified interlocutor asks Ms Radia, whose clients include both Mr. Tata and Mukesh Ambani, why “you people [i.e. the Mukesh Ambani group] are supporting [Raja] like anything … when the younger brother [Anil Ambani] is the biggest beneficiary of the so called spectrum allocation”. “Issue bahut complex hai,” Ms Radia replies. “ Mere client Tatas bhi beneficiary rahein hain (my client, the Tatas, have also been a beneficiary).” [2]
There was a crucial conversation between Ratnam, Chartered Accountant of Tamil Nadu Chief Minister M. Karunanidhi’s third wife Rajathiammal, Rajathiammal herself and Niira Radia, on June 13, 2010, more than three weeks after the UPA II Cabinet had been formed and A.Raja had been successfully planted as the Telecom Minister and Dayanidhi Maran, was kept out, as desired by Ratan Tata and also Mukesh Ambani, as conversations of Radia with others clearly indicated.[3]
It is also reported that Tata through Voltas (a Tata group organisation) is in touch with Niira Radia and Ratnam, CA of (Rajathi)Ammal, wife of (Chief Minister) M.Karunanidhi,. They are apparently going to construct a building in Chennai on a land controlled by “TRIL” (Tata Realty and Infrastructure ltd.) with the Karunanidhi family as a payoff to DMK for keeping Maran out of Telecom (ministry).
Privacy is for private persons and also for private affairs of public persons. It is illegal, illogical and unreasonable for public persons to claim privacy for their public activities such as governance, policy making, 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 criminal secrets as privacy saying that such privacy is 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 and if it reveals the conversation of Tata’s people with political lobbyists, which insist on somebody to be made Telcom minister or not to be made, it is quiet relevant public affair and has to be probed. 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, which destroys the public interest. Privacy is not secrecy for hiding unethical deals and cornering state wealth through manipulations. If these secret unethical manipulations are supposed to be protected under right to privacy, no investigating agency can probe into any crime anywhere in the world.
If Tata, Burkha Dutt, Vir Singhvi and others who figured in Radia tapes and Radia herself feel defamed by these revelations, they can test their right to reputation by suing publishers, which will end up in favour of publishers. They have absolutely no case under right to privacy as that right is available for victims of crime but not to criminals or their helpers.
Privacy: An Undefined Right
Privacy in general means the right to be let alone and its object is to protect inviolate personality. Privacy is yet to be defined as a legal right in India. Privacy is a fundamental human right that has been defined 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.[4]
A professor team studied interface between public interest, media and privacy for BBC and other State Commissions of UK[5]. That report concluded with suggestion of public interest 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 should be – in the name of the greater good.[6]
Though it is regarded as a Fundamental Right it is not absolute as it can be restricted on the basis of compelling public interest.[7] This is the real scope of privacy and this space of Ratan Tata and his legitimate interests are not invaded by publication of tapes.
After privatization and globalization, the need for right to know the activities of corporate giants in clandestine association with rulers, has enormously increased. In Time V. Hill, U. S. Supreme Court said: “The constitutional guarantees of freedom of speech in the press, not for the benefit of the press, in order to benefit the entire nation. Powerful industrialists like Tata and influential communicators like Vir Sanghwi and Burkha Dutt should understand that with great power comes great responsibility, and therefore the freedom under Article 19 (1) (a) correlates with a duty not to violate the law.
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. 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[8].
In Peoples Union for Civil Liberties (PUCL) v. Union of India,[9] 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.[10] 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.[11]
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 publicize intimate details of a highly personal nature.[12] The Radia tapes, so far published revealed public issue, but not an iota of personal life of claimant Tata. There is neither ‘personal privacy’ nor ‘unwarranted invasion’.
Nixon’s Privacy?
Like Ratan Tata, Nixon also sought to protect his tapes. However, Tata should know that Nixon failed. Former US President Richard Nixon challenged the constitutionality of the Presidential Recordings and Materials Preservation Act, which provided for the historical archiving of and public access to recordings and materials made by the President during his tenure in public office. In addressing Nixon’s claim that providing public access to his White House recordings and papers would violate his right to privacy, the Court recognized and reaffirmed that “one element of privacy had been characterized as the ‘individual interest in avoiding disclosure of personal matters….”[13] The Court continued, recognizing that “public officials, including the President, are not wholly without constitutionally protected privacy rights in matters of personal life unrelated to any acts done by them in their public capacity.”[14]. The Court concluded that the “tape recordings made in the Presidential offices primarily relate to the conduct and business of the Presidency,” and that “the overwhelming bulk of the [records at issue] pertain, not to appellant’s private communications, but to the official conduct of the Presidency.”[15] Therefore, the Court concluded “only a minute portion of the materials implicates appellant’s privacy interests,” precisely because “of his lack of any expectation of privacy in the overwhelming majority of the materials” – those that reflected on his official conduct.[16]
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. See Flanagan,[17] (applying the first prong of Martinelli to internal affairs file and concluding that “data in files ‘which is not of a highly personal or sensitive nature may not fall within the zone of confidentiality”) The US Supreme Court held that the evidence obtained by wire tapping was admissible against petitioners[18].
With these public interest exceptions controlling the right of privacy, which is yet take a firm shape, it is doubtful as to entitlement of Tata to block out the tale telling tapped tapes vis-à-vis their disclosure in public interest.
Conclusion: The legal principles regarding right to privacy and disclosure in public interest:
1.Telephone tapping is held constitutional if ordered according to a prescribed procedure. (SC judgment in PUCL Case)
2.Information obtained by authorized telephone tapping is not illegal information.
3.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)
4.Right to privacy is available to 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.
5.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)
6.Protection for private information from disclosure is not available if there is overwhelming public interest in disclosure.
7.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.
8.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.
9.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.
10. 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. Attorney General v. Assistant Com’r of Real Property Dept. of Boston, 380 Mass. 623, 404 N.E.2d 1254 (1980).
11. 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)
12. The doctrine laid down in the Olmstead (Olmstead v. United States, 277 U. S. 438) 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. It is significant that the US Federal courts have uniformly considered the Olmstead case controlling on the general proposition that in the absence of legislation by Congress evidence even though unethically or illegally obtained is admissible unless rights under the Constitution have been invaded.
Facts against Tata
■Telephone tapping has been done after due authorization.
■The IT department or any other authority is not allegedly involved in disclosure or leakage.
■It is not known as to who copied and leaked the tapped phone conversations.
■It is not aimed at any individual industrialist like Tata or Ambani. It is a revelation that some bigwigs including them were referred to and heard in these conservations.
■Under no stretch of imagination the issues discussed or sought were not about personal or private or family matters of individuals involved in conversations. They are public matters, public activities such as coalition politics, cabinet portfolio allocations, distribution of public wealth (2g spectrum, or natural gas in Krishna Godavari Basin) running to the tune of lakhs of crores of rupees which belong to sovereign people at large.
■Though third wife, son, daughter and other relatives of DMK President are referred, it is not private family affair but about national coalition. It is unfortunate that we have to discuss families to know about politics in this country.
■More over the whole issue is about the biggest scandal wherein corrupt motives dominate over collective responsibility of coalition cabinet. Prime Minister appeals or suggests to junior minister Raja and when the later simply ignores and rejects it, the PM leaves it to the fate of Indians and continues to rule this country while that decision of junior minister ruins this country.
■Such issues forming part of tapes of tapped phones of big public persons are substantial issues of governance pertaining to rule of law and the Constitution that has been desecrated and violated with all impunity by the cabinet, industrialists including petitioner Tata, a section of Media bearing big names willingly becoming tools (a disgrace to Fourth Estate in fact) in the hands of a professional lobbyist working in the garb of PR official (a shame to profession of public relations indeed).
■This information in the government’s hands is public and not 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.
■Either Tata or those lobbying for him including persons in media, politics, PR or in other professions, were not discussing legal strategies to improve industries of Tata or his family affairs. Thus no private information of Tata is involved in these conversations, instead, sinister motives to send some body out and bring somebody in as Union Telcom Minister, with whom Tata and other telecommunication industrialists were been ultimately benefited at the cost of this nation, in fact these communications reveal a serious treachery of nation which is not defined as a crime in Indian Penal Code, as authors of IPC 150 years ago failed to visualize emerging of great industrialists planning to grab national wealth through lobbying.
■Even if we assume for a moment that privacy of Tata is invaded, (which never happened) that invasion was committed by Niira Radia and others who willingly served interests of these industrialists rather the nation, a shame again. Hence Tata has to try whether he has a cause of action against them and certainly not against the highly inactive government which does not even know what is happening even after CAG reported the serious proportion of gigantic scam.
■Assuming for a moment that his privacy is invaded (which did not happen) its disclosure is highly warranted in public interest and not unwarranted as Tata claimed.
■It is a fit case where nation has a right to know other unrevealed tapes of tapped phones to go to the roots of 2G scam, KG Scam etc. The people of this Nation has every authority to demand its representative government to continue to tap all these corporate or industrialist terrorist who are targeting national wealth under ground (KG) and in the space above (2G) to catch dacoits of gas and spectrum and produce alive before the Sovereign “We the people..”.
■More important is that certain conversations reveal that they have scant regard for higher courts and confident of securing any favourable judicial process or order. This is in fact the contempt of court, and this is where power to punish that contempt need to be used. It is another aspect which disprove the claim that what was being discussed was not privacy but contempt of court.
■The clues and evidence thus obtained by authorized tapping of phones could be used and adduced as admissible evidence of guilty in these scams.
■It is high time that people centric media, other than those high profile persons serving Radia and her clients, to engage in string operations to catch hold of dacoits of national wealth since the law can support admission of evidence obtained by illegal tapping also. (See significant decisions of US Supreme Court above).
■When politicians, media persons and other big men are not bothered about their right to privacy why Ratan Tata alone is seeking protection of apex court? Is it because more skeletons are there in cup boards?
■Mr. Ratan Tata should have a sense of shame in begging Supreme Court for right to life when more than 40 crore people living below poverty line do not afford or access or care to seek right to life in Article 21 invoking Article 32 in Supreme Court of India, though they are dying in poverty as their national wealth is looted by big and famous.
-Prof. Madabhushi Sridhar, NALSAR University of Law, Hyderabad
--------------------------------------------------------------------------------
[1] News Report, Indo-Asian News Service, New Delhi, November 30, 2010
[2] See The Hindu, Siddharth Varadarajan’s opinion page article, 29th November 2010
[3] http://business.outlookindia.com/view.aspx?vname=RatnamDMK-worknotdone-20090613-114740.wav&format=1
[4] Lord Lester and D. Pannick (eds.), Human Rights Law and Practice (London, Butterworth, 2004), para. 4.82.
[5] David. E Morrison, Michael Svennevig, The public interest, media & privacy, a report for BBC & other British authorities, March. 2002
[6] Ibid.
[7] Govind v. State of M.P. (1975)2 SCC 148, AIR 1975 S.C. 1378
[8] The CPIO, Supreme Court of India vs Subhash Chandra Agarwal, WP(C) 288/2009
[9] AIR 2003 SC 2363
[10] Ripskis v. Department of Housing and Urban Development, 746 F.2d 1 (D.C. Cir. 1984)
[11] U.S. Dept. of State v. Ray, 502 U.S. 164, 112 S. Ct. 541, 116 L. Ed. 2d 526 (1991)
[12] Attorney General v. Assistant Com’r of Real Property Dept. of Boston, 380 Mass. 623, 404 N.E.2d 1254 (1980)
[13] Nixon, 433 U.S. at 457 (citing Whalen v. Roe, 429 U.S. 589, 599 (1977).
[14] Nixon, 433 U.S. at 457
[15] Nixon, 433 U.S. at 459.
[16] Nixon, 433 U.S. at 461-64.
[17] 890 F.2d at 1570
[18] Olmstead v. United States, 277 U. S. 438
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2.Rule Of Adverse Possession Decided Ayodhya – Prof.Madabhushi Sridhar
3.WHO MAKES LAW FOR US, UNION CABINET OR UNION CARBIDE? – Prof Madabhushi Sridhar
4.THE PARK WOOD EPISODE : NEW MEDIA: NEW TOOL TO VICTIMIZE RAPE VICTIMS -Prof. Madabhushi Sridhar,
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7.BABRI DEMOLITION – Whether Judiciary was within the frame of Constitution? – Prof.Madabhushi Sridhar
8.CRISIS IN ANDHRA PRADESH AND THE CONSTITUTIONAL PROVISIONS – Prof. Madabhushi Sridhar
9.DEMISE OF YS:IS IT DEMISE OF AP CABINET ALSO? -Prof.Madabhushi Sridhar
10.PUBLIC INTEREST VALIDATES MEDIA TRIAL – Prof. Madabhushi Sridhar
On the other hand senior counsel Prashanth Bhushan asked the Supreme Court not to hold back the transcripts of corporate lobbyist Niira Radia’s telephonic conversations from the public gaze as the people had a right to know how political governance was functioning in tandem with vested interests. Appearing in the apex court for the Centre for Public Interest Litigation, he told the court that the intercepts were a telling commentary on how things were done in the government. Prashanth Bhushan said that there was an attempt that transcripts of 5,851 intercepts do not see the light of the day.[1]
After due authorization from the Home Ministry the Indian Income Tax department tapped Radia’s phone lines for 300 days in 2008-2009 as part of their investigations into possible money laundering, restricted financial practices, and tax evasion. The tapes revealed that Radia had frequent conversations with politicians, A. Raja, former Telecommunication and IT Minister, Kanimozhi, Rajya Sabha MP, Journalists, Barkha Dutt, Group editor, English news, NDTV, M.K. Venu, senior business journalist, Prabhu Chawla, editor of India Today magazine, Rajdeep Sardesai, Shankar Aiyar, then with India Today Group, Vir Sanghvi, HT advisory editorial director, Industry Heads, Ratan Tata, Tata Group, Tarun Das, former CII head, (Mention of) Mukesh Ambani, Reliance Industries, and Ranjan Bhattacharya (foster son-in-law of former prime minister Atal Behari Vajpayee), Suhel Seth, management guru and columnist.
When the print & electronic media maintained stoic silence pretending to ignore sensational tape tales, this news was prominently debated on social networking sites Twitter and Facebook. It was called the barkhagate which became number one topic on Twitter in India for more than a week. According to the Washington Post, “Twitter has played an important role in launching what has become an international conversation on the issue, with the Indian diaspora weighing in”. It was the Fifth Estate, netizen with the web technology which really exercised freedom of expression and kept the issue in lime light, while Fourth Estate was blocking out the sensation involving some of its prominent faces.
In one of the tapes, an unidentified interlocutor asks Ms Radia, whose clients include both Mr. Tata and Mukesh Ambani, why “you people [i.e. the Mukesh Ambani group] are supporting [Raja] like anything … when the younger brother [Anil Ambani] is the biggest beneficiary of the so called spectrum allocation”. “Issue bahut complex hai,” Ms Radia replies. “ Mere client Tatas bhi beneficiary rahein hain (my client, the Tatas, have also been a beneficiary).” [2]
There was a crucial conversation between Ratnam, Chartered Accountant of Tamil Nadu Chief Minister M. Karunanidhi’s third wife Rajathiammal, Rajathiammal herself and Niira Radia, on June 13, 2010, more than three weeks after the UPA II Cabinet had been formed and A.Raja had been successfully planted as the Telecom Minister and Dayanidhi Maran, was kept out, as desired by Ratan Tata and also Mukesh Ambani, as conversations of Radia with others clearly indicated.[3]
It is also reported that Tata through Voltas (a Tata group organisation) is in touch with Niira Radia and Ratnam, CA of (Rajathi)Ammal, wife of (Chief Minister) M.Karunanidhi,. They are apparently going to construct a building in Chennai on a land controlled by “TRIL” (Tata Realty and Infrastructure ltd.) with the Karunanidhi family as a payoff to DMK for keeping Maran out of Telecom (ministry).
Privacy is for private persons and also for private affairs of public persons. It is illegal, illogical and unreasonable for public persons to claim privacy for their public activities such as governance, policy making, 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 criminal secrets as privacy saying that such privacy is 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 and if it reveals the conversation of Tata’s people with political lobbyists, which insist on somebody to be made Telcom minister or not to be made, it is quiet relevant public affair and has to be probed. 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, which destroys the public interest. Privacy is not secrecy for hiding unethical deals and cornering state wealth through manipulations. If these secret unethical manipulations are supposed to be protected under right to privacy, no investigating agency can probe into any crime anywhere in the world.
If Tata, Burkha Dutt, Vir Singhvi and others who figured in Radia tapes and Radia herself feel defamed by these revelations, they can test their right to reputation by suing publishers, which will end up in favour of publishers. They have absolutely no case under right to privacy as that right is available for victims of crime but not to criminals or their helpers.
Privacy: An Undefined Right
Privacy in general means the right to be let alone and its object is to protect inviolate personality. Privacy is yet to be defined as a legal right in India. Privacy is a fundamental human right that has been defined 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.[4]
A professor team studied interface between public interest, media and privacy for BBC and other State Commissions of UK[5]. That report concluded with suggestion of public interest 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 should be – in the name of the greater good.[6]
Though it is regarded as a Fundamental Right it is not absolute as it can be restricted on the basis of compelling public interest.[7] This is the real scope of privacy and this space of Ratan Tata and his legitimate interests are not invaded by publication of tapes.
After privatization and globalization, the need for right to know the activities of corporate giants in clandestine association with rulers, has enormously increased. In Time V. Hill, U. S. Supreme Court said: “The constitutional guarantees of freedom of speech in the press, not for the benefit of the press, in order to benefit the entire nation. Powerful industrialists like Tata and influential communicators like Vir Sanghwi and Burkha Dutt should understand that with great power comes great responsibility, and therefore the freedom under Article 19 (1) (a) correlates with a duty not to violate the law.
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. 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[8].
In Peoples Union for Civil Liberties (PUCL) v. Union of India,[9] 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.[10] 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.[11]
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 publicize intimate details of a highly personal nature.[12] The Radia tapes, so far published revealed public issue, but not an iota of personal life of claimant Tata. There is neither ‘personal privacy’ nor ‘unwarranted invasion’.
Nixon’s Privacy?
Like Ratan Tata, Nixon also sought to protect his tapes. However, Tata should know that Nixon failed. Former US President Richard Nixon challenged the constitutionality of the Presidential Recordings and Materials Preservation Act, which provided for the historical archiving of and public access to recordings and materials made by the President during his tenure in public office. In addressing Nixon’s claim that providing public access to his White House recordings and papers would violate his right to privacy, the Court recognized and reaffirmed that “one element of privacy had been characterized as the ‘individual interest in avoiding disclosure of personal matters….”[13] The Court continued, recognizing that “public officials, including the President, are not wholly without constitutionally protected privacy rights in matters of personal life unrelated to any acts done by them in their public capacity.”[14]. The Court concluded that the “tape recordings made in the Presidential offices primarily relate to the conduct and business of the Presidency,” and that “the overwhelming bulk of the [records at issue] pertain, not to appellant’s private communications, but to the official conduct of the Presidency.”[15] Therefore, the Court concluded “only a minute portion of the materials implicates appellant’s privacy interests,” precisely because “of his lack of any expectation of privacy in the overwhelming majority of the materials” – those that reflected on his official conduct.[16]
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. See Flanagan,[17] (applying the first prong of Martinelli to internal affairs file and concluding that “data in files ‘which is not of a highly personal or sensitive nature may not fall within the zone of confidentiality”) The US Supreme Court held that the evidence obtained by wire tapping was admissible against petitioners[18].
With these public interest exceptions controlling the right of privacy, which is yet take a firm shape, it is doubtful as to entitlement of Tata to block out the tale telling tapped tapes vis-à-vis their disclosure in public interest.
Conclusion: The legal principles regarding right to privacy and disclosure in public interest:
1.Telephone tapping is held constitutional if ordered according to a prescribed procedure. (SC judgment in PUCL Case)
2.Information obtained by authorized telephone tapping is not illegal information.
3.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)
4.Right to privacy is available to 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.
5.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)
6.Protection for private information from disclosure is not available if there is overwhelming public interest in disclosure.
7.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.
8.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.
9.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.
10. 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. Attorney General v. Assistant Com’r of Real Property Dept. of Boston, 380 Mass. 623, 404 N.E.2d 1254 (1980).
11. 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)
12. The doctrine laid down in the Olmstead (Olmstead v. United States, 277 U. S. 438) 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. It is significant that the US Federal courts have uniformly considered the Olmstead case controlling on the general proposition that in the absence of legislation by Congress evidence even though unethically or illegally obtained is admissible unless rights under the Constitution have been invaded.
Facts against Tata
■Telephone tapping has been done after due authorization.
■The IT department or any other authority is not allegedly involved in disclosure or leakage.
■It is not known as to who copied and leaked the tapped phone conversations.
■It is not aimed at any individual industrialist like Tata or Ambani. It is a revelation that some bigwigs including them were referred to and heard in these conservations.
■Under no stretch of imagination the issues discussed or sought were not about personal or private or family matters of individuals involved in conversations. They are public matters, public activities such as coalition politics, cabinet portfolio allocations, distribution of public wealth (2g spectrum, or natural gas in Krishna Godavari Basin) running to the tune of lakhs of crores of rupees which belong to sovereign people at large.
■Though third wife, son, daughter and other relatives of DMK President are referred, it is not private family affair but about national coalition. It is unfortunate that we have to discuss families to know about politics in this country.
■More over the whole issue is about the biggest scandal wherein corrupt motives dominate over collective responsibility of coalition cabinet. Prime Minister appeals or suggests to junior minister Raja and when the later simply ignores and rejects it, the PM leaves it to the fate of Indians and continues to rule this country while that decision of junior minister ruins this country.
■Such issues forming part of tapes of tapped phones of big public persons are substantial issues of governance pertaining to rule of law and the Constitution that has been desecrated and violated with all impunity by the cabinet, industrialists including petitioner Tata, a section of Media bearing big names willingly becoming tools (a disgrace to Fourth Estate in fact) in the hands of a professional lobbyist working in the garb of PR official (a shame to profession of public relations indeed).
■This information in the government’s hands is public and not 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.
■Either Tata or those lobbying for him including persons in media, politics, PR or in other professions, were not discussing legal strategies to improve industries of Tata or his family affairs. Thus no private information of Tata is involved in these conversations, instead, sinister motives to send some body out and bring somebody in as Union Telcom Minister, with whom Tata and other telecommunication industrialists were been ultimately benefited at the cost of this nation, in fact these communications reveal a serious treachery of nation which is not defined as a crime in Indian Penal Code, as authors of IPC 150 years ago failed to visualize emerging of great industrialists planning to grab national wealth through lobbying.
■Even if we assume for a moment that privacy of Tata is invaded, (which never happened) that invasion was committed by Niira Radia and others who willingly served interests of these industrialists rather the nation, a shame again. Hence Tata has to try whether he has a cause of action against them and certainly not against the highly inactive government which does not even know what is happening even after CAG reported the serious proportion of gigantic scam.
■Assuming for a moment that his privacy is invaded (which did not happen) its disclosure is highly warranted in public interest and not unwarranted as Tata claimed.
■It is a fit case where nation has a right to know other unrevealed tapes of tapped phones to go to the roots of 2G scam, KG Scam etc. The people of this Nation has every authority to demand its representative government to continue to tap all these corporate or industrialist terrorist who are targeting national wealth under ground (KG) and in the space above (2G) to catch dacoits of gas and spectrum and produce alive before the Sovereign “We the people..”.
■More important is that certain conversations reveal that they have scant regard for higher courts and confident of securing any favourable judicial process or order. This is in fact the contempt of court, and this is where power to punish that contempt need to be used. It is another aspect which disprove the claim that what was being discussed was not privacy but contempt of court.
■The clues and evidence thus obtained by authorized tapping of phones could be used and adduced as admissible evidence of guilty in these scams.
■It is high time that people centric media, other than those high profile persons serving Radia and her clients, to engage in string operations to catch hold of dacoits of national wealth since the law can support admission of evidence obtained by illegal tapping also. (See significant decisions of US Supreme Court above).
■When politicians, media persons and other big men are not bothered about their right to privacy why Ratan Tata alone is seeking protection of apex court? Is it because more skeletons are there in cup boards?
■Mr. Ratan Tata should have a sense of shame in begging Supreme Court for right to life when more than 40 crore people living below poverty line do not afford or access or care to seek right to life in Article 21 invoking Article 32 in Supreme Court of India, though they are dying in poverty as their national wealth is looted by big and famous.
-Prof. Madabhushi Sridhar, NALSAR University of Law, Hyderabad
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[1] News Report, Indo-Asian News Service, New Delhi, November 30, 2010
[2] See The Hindu, Siddharth Varadarajan’s opinion page article, 29th November 2010
[3] http://business.outlookindia.com/view.aspx?vname=RatnamDMK-worknotdone-20090613-114740.wav&format=1
[4] Lord Lester and D. Pannick (eds.), Human Rights Law and Practice (London, Butterworth, 2004), para. 4.82.
[5] David. E Morrison, Michael Svennevig, The public interest, media & privacy, a report for BBC & other British authorities, March. 2002
[6] Ibid.
[7] Govind v. State of M.P. (1975)2 SCC 148, AIR 1975 S.C. 1378
[8] The CPIO, Supreme Court of India vs Subhash Chandra Agarwal, WP(C) 288/2009
[9] AIR 2003 SC 2363
[10] Ripskis v. Department of Housing and Urban Development, 746 F.2d 1 (D.C. Cir. 1984)
[11] U.S. Dept. of State v. Ray, 502 U.S. 164, 112 S. Ct. 541, 116 L. Ed. 2d 526 (1991)
[12] Attorney General v. Assistant Com’r of Real Property Dept. of Boston, 380 Mass. 623, 404 N.E.2d 1254 (1980)
[13] Nixon, 433 U.S. at 457 (citing Whalen v. Roe, 429 U.S. 589, 599 (1977).
[14] Nixon, 433 U.S. at 457
[15] Nixon, 433 U.S. at 459.
[16] Nixon, 433 U.S. at 461-64.
[17] 890 F.2d at 1570
[18] Olmstead v. United States, 277 U. S. 438
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2.Rule Of Adverse Possession Decided Ayodhya – Prof.Madabhushi Sridhar
3.WHO MAKES LAW FOR US, UNION CABINET OR UNION CARBIDE? – Prof Madabhushi Sridhar
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NATIONAL SECURITY WATCH: SERIES OF INJUSTICES ON HINDUS – ANANDSHANKAR PAND...
NATIONAL SECURITY WATCH: SERIES OF INJUSTICES ON HINDUS – ANANDSHANKAR PAND...: " Series of injustices on Hindus – anandshankar Pandya In the world everywhere today there is great demand for justice to..."
THE ENEMY PROPERTY ACT, 1968
THE ENEMY PROPERTY ACT, 1968
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An Act to provide for the continued vesting of enemy property vested in the Custodian of Enemy Property for India under the Defence of India Rules, 1962 1[and the Defence of India Rules, 1971], and for matters connected therewith.
BE it enacted by Parliament in the Nineteenth Year of the
Republic of India as follows:-
1. Short title, extent, application and commencement. (1) This
Act may be called the Enemy Property Act, 1968.(2) It extends to the whole of India except the State of Jammu and Kashmir and it applies also to all citizens of India outside India and to branches and agencies outside India of companies or bodies corporate registered or incorporated in India.
(3) It shall be deemed to have come into force on the 10th day of July, 1968.2.Definitions.
2. Definitions. In this Act, unless the context otherwise requires,-
(a) “Custodian” means the Custodian of Enemy Property for
India appointed or deemed to have been appointed under section 3 and includes a Deputy Custodian and an Assistant
Custodian of Enemy Property appointed or deemed to have been appointed under that section;
(b) “enemy” or “enemy subject” or “enemy firm” means a person or country who or which was an enemy, an enemy subject or an enemy firm, as the case may be, under the
Defence of India Act, 1962 (51 of 1962), and the Defence of
India Rules, 1962 2[or the Defence of India Act,1971 (12 of
1971) and the Defence of India Rules, 1971], but does not include a citizen of India;
(c) “enemy property” means any property for the time being belonging to or held or managed on behalf of an enemy, an enemy subject or an enemy firm:
Provided that where an individual enemy subject dies in the territories to which this Act extends, any property which
———————————————————————
1 Ins. by Act 40 of 1977, s. 2 (w.e.f. 27-9-1977).
2 Ins. by s. 3, ibid. (w.e.f. 27-9-1977).
———————————————————————
26.immediately before his death, belonged to or was held by him or was managed on his behalf, may, notwithstanding his death, continue to be regarded as enemy property for the purposes of this Act ;
(d) “prescribed” means prescribed by rules made under this
Act.
3. Appointment of custodian of Enemy property for India and
Deputy custodian, etc. The Central Government may, by notification in the Official Gazette, appoint a Custodian of Enemy Property for Indian and one or more Deputy Custodians and Assistant Custodians or Enemy
Property for such local areas as may be specified in the notification:
Provided that the Custodian of Enemy Property for Indian and any
Deputy Custodian or Assistant Custodian of Enemy Property appointed under the Defence of India Rules, 1962 1[or the Defence of India
Rules, 1971, as the case may be], shall be deemed to have been appointed under this section.
4. Appointment of inspectors of Enemy property. The Central
Government may, either generally or for any particular area, by notification in the Official Gazette, appoint one or more Inspectors of Enemy Property for securing compliance with the provisions of this
Act and may, by general or special order, provide for the distribution and allocation of the work to be performed by them for securing such compliance:
Provided that every Inspector of Enemy Firms appointed under the
Defence of India Rules, 1962 2[or the Defence of India Rules, 1971, as the case may be], shall be deemed to be an Inspector of Enemy Property appointed under this section.
5. Property vested in the Custodian of Enemy property for India under the Defence of India Rules, 1962, and the Defence of India
Rules, 1971 to continue to vest in Custodian. 3[(1)] Notwithstanding the expiration of the Defence of India Act, 1962 (51 of 1962), and the Defence of India Rules, 1962, all enemy property vested before such expiration in the Custodian of Enemy Property for India appointed under the said Rules and continuing to vest in him immediately before the commencement of this Act, shall, as from such commencement, vest in the Custodian.
2 [ (2) Notwithstanding the expiration of the Defence of India
Act, 1971 (12 of 1971) and the Defence of India Rules, 1971, all enemy property vested before such expiration in the Custodian of Enemy
Property for India appointed under the said Rules and continuing to vest in him immediately before the commencement of the Enemy Property
(Amend-
---------------------------------------------------------------------
1 Ins. by Act 40 of 1977, s. 4 (w.e.f. 27-9-1977).
2 Ins. by s. 5, ibid. (w.e.f. 27-9-1977).
3 S. 5 renumbered as sub-section (1) thereof by s. 6, ibid.
(w.e.f. 27-9-1977).
---------------------------------------------------------------------
27.ment) Act, 1977 (40 of 1977) shall, as from such commencement, vest in the custodian.]
6.Transfer of property vested in Custodian by enemy on enemy subject orenemy firm.
6. Transfer of property vested in Custodian by enemy on enemy subject or enemy firm. Where any property vested in the Custodian under this Act has been transferred, whether before or after the commencement of this Act, by an enemy or an enemy subject or an enemy firm and where it appears to the Central Government that such transfer is injurious to the public interest or was made with a view to evading or defeating the vesting of the property in the Custodian, then, the
Central Government may, after giving a reasonable opportunity to the transferee to be heard in the matter, by order, declare such transfer to be void and on the making of such order, the property shall continue to vest or be deemed to vest in the Custodian.
7. Payment to Custodian of money otherwise payable to an enemy, enemy subject or enemy firm. (1) Any sum payable by way of dividend, interest, share profits or otherwise to or for the benefit of an enemy or an enemy subject or an enemy firm shall, unless otherwise ordered by the Central Government, be paid by the person by whom such sum would have been payable but for the prohibition under the Defence of India Rules, 1962 1[or the Defence of India Rules,
1971, as the case may be], to the Custodian or such person as may be authorised by him in this behalf and shall be held by the Custodian or such person subject to the provisions of this Act.
(2) In cases in which money would, but for the prohibition under the Defence of India Rules, 1961 1[or the Defence of India Rules,
1971, as the case may be], be payable in a foreign currency to or for the benefit of an enemy or an enemy subject or an enemy firm (other than cases in which money is payable under a contract in which provision is made for specified rate of exchange), the payment shall be made to the Custodian in rupee currency at the middle official rate of exchange fixed by the Reserve Bank of India on the date on which the payment became due to that enemy, enemy subject or enemy firm.
(3) The Custodian shall, subject to the provisions of section 8, deal with any money paid to him under the Defence of India Rules, 1962.1[or the Defence of India Rules, 1971, as the case may be] or under this Act and any property vested in him under this Act in such manner as the Central Government may direct.
8. Power of Custodian In respect of enemy property vested in him. (1) With respect to the property vested in the Custodian under this Act, the Custodian may take or authorise the taking of such measures as the considers necessary or expedient for preserving
———————————————————————
1 Ins. by Act 40 of 1977, s. 7 (w.e.f. 27-9-1977).
———————————————————————
28.such property and where such property belongs to an individual enemy subject, may incur such expenditure out of the property as he considers necessary or expedient for the maintenance of that indi-
vidual or of his family in India.
(2) Without prejudice to the generality of the foregoing provision, the Custodian or such person as may be specifically authorised by him in this behalf, may, for the said purpose,-
(i) carry on the business of the enemy;
(ii) take action for recovering any money due to the enemy;
(iii) make any contract and execute any document in the name and on behalf of the enemy ;
(iv) institute, defend or continue any suit or other legal proceeding, refer any dispute to arbitration and compromise any debts, claims or liabilities;
(v) raise on the security of the property such loans as may be necessary;
(vi) incur out of the property any expenditure including the payment of any taxes, duties, cesses and rates to Government or to any local authority and of any wages, salaries, pensions, provident fund contributions to, or in respect of, any employee of the enemy and the repayment of any debts due by the enemy to persons other than enemies ;
(vii) transfer by way of sale, mortgage or lease or otherwise dispose of any of the properties ;
(viii) invest any moneys held by him on behalf of enemies for the purchase of Treasury Bills or such other Government securities as may be approved by the Central Government for the purpose;
(ix) make payments to the enemy and his dependents;
(x) make payments on behalf of the enemy to persons other than those who are enemies, of dues outstanding on the 25th
October, 1962 1[or on the 3rd December, 1971]; and
(xi) make such other payments out of the funds of the enemy as may be directed by the Central Government.
Explanation.-In this sub-section and in sections 10 and 17,
“enemy” includes an enemy subject and an enemy firm.
9. Exemption from attachment, etc. All enemy property vested in the Custodian under this Act shall be exempt from attachment, seizure or sale in execution of decree of a civil court or orders of any other authority.
———————————————————————
1 Ins. by Act 40 of 1977, S. 8 (w.e.f. 27-9-1977)
———————————————————————
29.10.Transfer of securities belonging to an enemy.
10. Transfer of securities belonging to an enemy. (1) Where, in exercise of the powers conferred by section 8, the Custodian proposes to sell any security issued by a company and belonging to an enemy, the company may, with the consent of the Custodian, purchase the securities, notwithstanding anything to the contrary in any law or in any regulations of the company and any securities so purchased may be re-issued by the company as and when it thinks fit so to do.
(2)Where the Custodian executes and transfers any securities issued by a company, the company shall, on receipt of the transfer and an order in this behalf from the Custodian, register the securities in the name of the transferee, notwithstanding that the regulations of the company do not permit such registration in the absence of the certificate, script or other evidence of title relating to the securities transferred:
Provided that any such registration shall be without prejudice to any lien or charge in favour of the company and to any other lien or charge of which the Custodian gives express notice to the company.
Explanation.-In this section, “securities” includes shares, stocks, bonds, debentures and debenture stock but does not include bills of exchange.
11. Power of Custodian to summon persons and call for documents.
(1) The Custodian may, by notice in writing, require any person whom he believes to be capable of giving information concerning any enemy property to attend before him at such time and place as may be specified in the notice and examine any such person concerning the same, reduce his statement to writing and require him to sign it.
(2) The Custodian may, by notice in writing, require any person whom he believes to have in his possession or control any account book, letter book, invoice, receipt or other document of whatever nature relating to any enemy property, to produce the same or cause the same to be produced before the Custodian at such time and place as may be specified in the notice and to submit the same to his examination and to allow copies of any entry therein or any part thereof to be taken by him.
12.Protection for complying with orders of Custodian.
12. Protection for complying with orders of Custodian. Where any order with respect to any money or property is addressed to any person by the Custodian and accompanied by a certificate of the
Custodian that the money or property is money property vested in him under this Act, the certificate shall be evidence of the facts stated therein and if that person complies with
30
the orders of the Custodian, he shall not be liable to any suit or other legal proceeding by reason only of such compliance.
13.Validity of action taken in pursuance of orders of Custodian.
13. Validity of action taken in pursuance of orders of
Custodian. Where under this Act,-
(a) any money is paid to the Custodian; or
(b) any property is vested in the Custodian or an order is given to any person by the Custodian in relation to any property which appears to the Custodian to be enemy property vested in him under this Act,
neither the payment, vesting nor order of the Custodian nor any pro-
ceedings in consequence thereof shall be invalidated or affected by reason only that at a material time,-
(i) some person who was or might have been interested in the money or property, and who was an enemy or an enemy firm, had died or had ceased to be an enemy or an enemy firm ;
or
(ii) some person who was so interested and who was believed by the Custodian to be an enemy or an enemy firm, was not an enemy or an enemy firm.
14.Proceedings against companies whose assets vest in Custodian.
14. Proceedings against companies whose assets vest in
Custodian. Where the enemy property vested in the Custodian under this
Act consists of assets of a company, no proceeding, civil or criminal, shall be instituted under the Companies Act, 1956 (1 of 1956), against the company, or any director, manager or other officer thereof except with the consent in writing of the Custodian.
15.Return as to enemy property.
15. Return as to enemy property. (1) The Custodian may call for from persons who, in his opinion, have any interest in, or control over, any enemy property vested in him under this Act, such returns as may be prescribed.
(2) Every person from whom a return is called for under sub-
section (1) shall be bound to submit such return within the prescribed period.
16.Registers of returns.
16. Registers of returns. (1) All returns relating to enemy property submitted to the Custodian under this Act shall be recorded in such registers as may be prescribed.
(2) All such registers shall be open to inspection subject to the payment of such fees as may be prescribed and to such reasonable restrictions as the Custodian may impose, to any person who, in the opinion of the Custodian, is interested in any particular enemy property as a creditor or otherwise and any such person may also obtain
31.a copy of the relevant portion from the registers on payment of the prescribed fees.
17.Levy of fees.
17. Levy of fees. (1) There shall be levied by the Custodian fees equal to two percentum of-
(a) the amount of moneys paid to him ;
(b) the proceeds of the sale or transfer of any property which has been vested in him under this Act; and
(c) the value of the residual property, if any, at the time of its transfer to the original owner or other person specified by the Central Government under section 18:
Provided that in the case of an enemy whose property is allowed by the Custodian to be managed by some person specially authorised in that behalf, there shall be levied a fee of two percentum of the gross income of the enemy or such less fee as may be specifically fixed by the Central Government after taking into consideration the cost of direct management incurred by that Government, the cost of superior supervision and any risks that may be incurred by that Government in respect of the management:
Provided further that the Central Government may, for reasons to be recorded in writing, reduce or remit the fees leviable under this sub-section in any special case or class of cases.
Explanation.-In this sub-section “gross income of the enemy”
means income derived out of the properties of the enemy vested in the
Custodian under this Act.
(2) The value of any property for the purpose of assessing the fees shall be the price which, in the opinion of the Central
Government or of an authority empowered in this behalf by the Central
Government, such property would fetch if sold in the open market.
(3) The fees in respect of property may be levied out of any proceeds of the sale or transfer thereof or out of any income accrued therefrom or out of any other property belonging to the same enemy and vested in the Custodian under this Act.
(4) The fees levied under this section shall be credited to the
Central Government.
18.Divesting of enemy property vested in the Custodian.
18. Divesting of enemy property vested in the Custodian. The
Central Government may, by general or special order, direct that any enemy property vested in the Custodian under this Act and remaining with him shall he divested from him and be returned, in such manner as may be prescribed to the owner thereof or to such other person as may be specified in the direction and
32.thereupon such property shall cease to vest in the Custodian and shall revest in such owner or other person.
19.Protection of action taken under the act.
19. Protection of action taken under the act. No suit, prosecution or other legal proceeding shall lie against the Central
Government or the Custodian or an Inspector of Enemy Property for anything which is in good faith done or intended to be done under this Act.
20.Penalty.
20. Penalty. (1) If any person makes any payment in contravention of the provisions of sub-section (1) of section 7, he shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both and the payment or dealing shall be void.
(2) If any person contravenes the provisions of sub-section (2)
of section 10, he shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.
(3) If any person fails to comply with a requisition made by the
Custodian under sub-section (1) or sub-section (2) of section 11, he shall be punishable with fine which may extend to five hundred rupees.
(4) If any person fails to submit the return under sub-section
(2) of section 15, or furnishes such return containing any particular which is false and which he knows to be false or does not believe to be true, he shall be punishable with fine which may extend to five hundred rupees.
21.Offences by companies.
21. Offences by companies. (1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due deligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed
33.
to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.-For the purposes of this section,-
(a) “company” means any body corporate and includes a firm or other association of individuals; and
(b) “director”, in relation to a firm, means a partner in the firm.
22.Effect of laws inconsistent with the Act.
22.Effect of laws inconsistent with the Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
23.Power to make rules.
23. Power to make rules. (1) The Central Government may make rules for carrying out the purposes of this Act.
(2) Without prejudice to the generality of the foregoing power, such rules may provide for-
(a) the returns that may be called for by the Custodian under sub-section (1) of section 15 and the period within which such returns shall be submitted under sub-section (2) of that section;
(b) the registers in which the returns relating to enemy property shall be recorded under section 16;
(c) the fees for the inspection of registers and for obtaining copies of the relevant portions from the registers under sub-section (2) of section 16;
(d) the manner in which enemy property vested in the
Custodian may be returned under section 18;
(e) any other matter which has to be or may be prescribed.
(3) Every rule made by the Central Government under this section shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session 1[or in two or more successive sessions and if, before the expiry of the session immediately following the session or the successive sessions aforesaid], both
Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
———————————————————————
1 subs. by Act 40 of 1977, s. 9, for certain words (w.e.f. 27-9-
1977).
———————————————————————
34.24.Certain orders made under the Defence of India Rules 1962 and Defenceof India
Rules, 1971 to continue in force.
24. Certain orders made under the Defence of India Rules 1962.and Defence of India Rules, 1971 to continue in force. 1[(1)] Every order which was made under the Defence of India Rules, 1962, by the
Central Government or by the Custodian of Enemy Property for India appointed under those Rules, relating to enemy property and which was in force immediately before the expiration thereof shall, in so far as such order is not inconsistent with the provisions of this Act, be deemed to continue in force and to have been made under this Act.
2[(2) Every order which was made under the Defence of India
Rules, 1971 by the Central Government or by the Custodian of Enemy
Property for India appointed under those Rules relating to enemy property and which was in force immediately before the expiration thereof shall, in so far as such order is not inconsistent with the provisions of this Act, be deemed to continue in force and to have been made under this Act.]
25.Repeal and saving.
25. Repeal and saving. (1) The Enemy Property Ordinance, 1968.(7 of 1968), is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under the corresponding provisions of this Act.
———————————————————————
1 S. 24 renumbered as sub-section (1) thereof by Act 40 of 1977, S. 10 (w.e.f. 27-9-1977).
2 Ins. by s. 10, ibid. (w.e.f. 27-9-1977).
--------------------------------------------------------------------------------
An Act to provide for the continued vesting of enemy property vested in the Custodian of Enemy Property for India under the Defence of India Rules, 1962 1[and the Defence of India Rules, 1971], and for matters connected therewith.
BE it enacted by Parliament in the Nineteenth Year of the
Republic of India as follows:-
1. Short title, extent, application and commencement. (1) This
Act may be called the Enemy Property Act, 1968.(2) It extends to the whole of India except the State of Jammu and Kashmir and it applies also to all citizens of India outside India and to branches and agencies outside India of companies or bodies corporate registered or incorporated in India.
(3) It shall be deemed to have come into force on the 10th day of July, 1968.2.Definitions.
2. Definitions. In this Act, unless the context otherwise requires,-
(a) “Custodian” means the Custodian of Enemy Property for
India appointed or deemed to have been appointed under section 3 and includes a Deputy Custodian and an Assistant
Custodian of Enemy Property appointed or deemed to have been appointed under that section;
(b) “enemy” or “enemy subject” or “enemy firm” means a person or country who or which was an enemy, an enemy subject or an enemy firm, as the case may be, under the
Defence of India Act, 1962 (51 of 1962), and the Defence of
India Rules, 1962 2[or the Defence of India Act,1971 (12 of
1971) and the Defence of India Rules, 1971], but does not include a citizen of India;
(c) “enemy property” means any property for the time being belonging to or held or managed on behalf of an enemy, an enemy subject or an enemy firm:
Provided that where an individual enemy subject dies in the territories to which this Act extends, any property which
———————————————————————
1 Ins. by Act 40 of 1977, s. 2 (w.e.f. 27-9-1977).
2 Ins. by s. 3, ibid. (w.e.f. 27-9-1977).
———————————————————————
26.immediately before his death, belonged to or was held by him or was managed on his behalf, may, notwithstanding his death, continue to be regarded as enemy property for the purposes of this Act ;
(d) “prescribed” means prescribed by rules made under this
Act.
3. Appointment of custodian of Enemy property for India and
Deputy custodian, etc. The Central Government may, by notification in the Official Gazette, appoint a Custodian of Enemy Property for Indian and one or more Deputy Custodians and Assistant Custodians or Enemy
Property for such local areas as may be specified in the notification:
Provided that the Custodian of Enemy Property for Indian and any
Deputy Custodian or Assistant Custodian of Enemy Property appointed under the Defence of India Rules, 1962 1[or the Defence of India
Rules, 1971, as the case may be], shall be deemed to have been appointed under this section.
4. Appointment of inspectors of Enemy property. The Central
Government may, either generally or for any particular area, by notification in the Official Gazette, appoint one or more Inspectors of Enemy Property for securing compliance with the provisions of this
Act and may, by general or special order, provide for the distribution and allocation of the work to be performed by them for securing such compliance:
Provided that every Inspector of Enemy Firms appointed under the
Defence of India Rules, 1962 2[or the Defence of India Rules, 1971, as the case may be], shall be deemed to be an Inspector of Enemy Property appointed under this section.
5. Property vested in the Custodian of Enemy property for India under the Defence of India Rules, 1962, and the Defence of India
Rules, 1971 to continue to vest in Custodian. 3[(1)] Notwithstanding the expiration of the Defence of India Act, 1962 (51 of 1962), and the Defence of India Rules, 1962, all enemy property vested before such expiration in the Custodian of Enemy Property for India appointed under the said Rules and continuing to vest in him immediately before the commencement of this Act, shall, as from such commencement, vest in the Custodian.
2 [ (2) Notwithstanding the expiration of the Defence of India
Act, 1971 (12 of 1971) and the Defence of India Rules, 1971, all enemy property vested before such expiration in the Custodian of Enemy
Property for India appointed under the said Rules and continuing to vest in him immediately before the commencement of the Enemy Property
(Amend-
---------------------------------------------------------------------
1 Ins. by Act 40 of 1977, s. 4 (w.e.f. 27-9-1977).
2 Ins. by s. 5, ibid. (w.e.f. 27-9-1977).
3 S. 5 renumbered as sub-section (1) thereof by s. 6, ibid.
(w.e.f. 27-9-1977).
---------------------------------------------------------------------
27.ment) Act, 1977 (40 of 1977) shall, as from such commencement, vest in the custodian.]
6.Transfer of property vested in Custodian by enemy on enemy subject orenemy firm.
6. Transfer of property vested in Custodian by enemy on enemy subject or enemy firm. Where any property vested in the Custodian under this Act has been transferred, whether before or after the commencement of this Act, by an enemy or an enemy subject or an enemy firm and where it appears to the Central Government that such transfer is injurious to the public interest or was made with a view to evading or defeating the vesting of the property in the Custodian, then, the
Central Government may, after giving a reasonable opportunity to the transferee to be heard in the matter, by order, declare such transfer to be void and on the making of such order, the property shall continue to vest or be deemed to vest in the Custodian.
7. Payment to Custodian of money otherwise payable to an enemy, enemy subject or enemy firm. (1) Any sum payable by way of dividend, interest, share profits or otherwise to or for the benefit of an enemy or an enemy subject or an enemy firm shall, unless otherwise ordered by the Central Government, be paid by the person by whom such sum would have been payable but for the prohibition under the Defence of India Rules, 1962 1[or the Defence of India Rules,
1971, as the case may be], to the Custodian or such person as may be authorised by him in this behalf and shall be held by the Custodian or such person subject to the provisions of this Act.
(2) In cases in which money would, but for the prohibition under the Defence of India Rules, 1961 1[or the Defence of India Rules,
1971, as the case may be], be payable in a foreign currency to or for the benefit of an enemy or an enemy subject or an enemy firm (other than cases in which money is payable under a contract in which provision is made for specified rate of exchange), the payment shall be made to the Custodian in rupee currency at the middle official rate of exchange fixed by the Reserve Bank of India on the date on which the payment became due to that enemy, enemy subject or enemy firm.
(3) The Custodian shall, subject to the provisions of section 8, deal with any money paid to him under the Defence of India Rules, 1962.1[or the Defence of India Rules, 1971, as the case may be] or under this Act and any property vested in him under this Act in such manner as the Central Government may direct.
8. Power of Custodian In respect of enemy property vested in him. (1) With respect to the property vested in the Custodian under this Act, the Custodian may take or authorise the taking of such measures as the considers necessary or expedient for preserving
———————————————————————
1 Ins. by Act 40 of 1977, s. 7 (w.e.f. 27-9-1977).
———————————————————————
28.such property and where such property belongs to an individual enemy subject, may incur such expenditure out of the property as he considers necessary or expedient for the maintenance of that indi-
vidual or of his family in India.
(2) Without prejudice to the generality of the foregoing provision, the Custodian or such person as may be specifically authorised by him in this behalf, may, for the said purpose,-
(i) carry on the business of the enemy;
(ii) take action for recovering any money due to the enemy;
(iii) make any contract and execute any document in the name and on behalf of the enemy ;
(iv) institute, defend or continue any suit or other legal proceeding, refer any dispute to arbitration and compromise any debts, claims or liabilities;
(v) raise on the security of the property such loans as may be necessary;
(vi) incur out of the property any expenditure including the payment of any taxes, duties, cesses and rates to Government or to any local authority and of any wages, salaries, pensions, provident fund contributions to, or in respect of, any employee of the enemy and the repayment of any debts due by the enemy to persons other than enemies ;
(vii) transfer by way of sale, mortgage or lease or otherwise dispose of any of the properties ;
(viii) invest any moneys held by him on behalf of enemies for the purchase of Treasury Bills or such other Government securities as may be approved by the Central Government for the purpose;
(ix) make payments to the enemy and his dependents;
(x) make payments on behalf of the enemy to persons other than those who are enemies, of dues outstanding on the 25th
October, 1962 1[or on the 3rd December, 1971]; and
(xi) make such other payments out of the funds of the enemy as may be directed by the Central Government.
Explanation.-In this sub-section and in sections 10 and 17,
“enemy” includes an enemy subject and an enemy firm.
9. Exemption from attachment, etc. All enemy property vested in the Custodian under this Act shall be exempt from attachment, seizure or sale in execution of decree of a civil court or orders of any other authority.
———————————————————————
1 Ins. by Act 40 of 1977, S. 8 (w.e.f. 27-9-1977)
———————————————————————
29.10.Transfer of securities belonging to an enemy.
10. Transfer of securities belonging to an enemy. (1) Where, in exercise of the powers conferred by section 8, the Custodian proposes to sell any security issued by a company and belonging to an enemy, the company may, with the consent of the Custodian, purchase the securities, notwithstanding anything to the contrary in any law or in any regulations of the company and any securities so purchased may be re-issued by the company as and when it thinks fit so to do.
(2)Where the Custodian executes and transfers any securities issued by a company, the company shall, on receipt of the transfer and an order in this behalf from the Custodian, register the securities in the name of the transferee, notwithstanding that the regulations of the company do not permit such registration in the absence of the certificate, script or other evidence of title relating to the securities transferred:
Provided that any such registration shall be without prejudice to any lien or charge in favour of the company and to any other lien or charge of which the Custodian gives express notice to the company.
Explanation.-In this section, “securities” includes shares, stocks, bonds, debentures and debenture stock but does not include bills of exchange.
11. Power of Custodian to summon persons and call for documents.
(1) The Custodian may, by notice in writing, require any person whom he believes to be capable of giving information concerning any enemy property to attend before him at such time and place as may be specified in the notice and examine any such person concerning the same, reduce his statement to writing and require him to sign it.
(2) The Custodian may, by notice in writing, require any person whom he believes to have in his possession or control any account book, letter book, invoice, receipt or other document of whatever nature relating to any enemy property, to produce the same or cause the same to be produced before the Custodian at such time and place as may be specified in the notice and to submit the same to his examination and to allow copies of any entry therein or any part thereof to be taken by him.
12.Protection for complying with orders of Custodian.
12. Protection for complying with orders of Custodian. Where any order with respect to any money or property is addressed to any person by the Custodian and accompanied by a certificate of the
Custodian that the money or property is money property vested in him under this Act, the certificate shall be evidence of the facts stated therein and if that person complies with
30
the orders of the Custodian, he shall not be liable to any suit or other legal proceeding by reason only of such compliance.
13.Validity of action taken in pursuance of orders of Custodian.
13. Validity of action taken in pursuance of orders of
Custodian. Where under this Act,-
(a) any money is paid to the Custodian; or
(b) any property is vested in the Custodian or an order is given to any person by the Custodian in relation to any property which appears to the Custodian to be enemy property vested in him under this Act,
neither the payment, vesting nor order of the Custodian nor any pro-
ceedings in consequence thereof shall be invalidated or affected by reason only that at a material time,-
(i) some person who was or might have been interested in the money or property, and who was an enemy or an enemy firm, had died or had ceased to be an enemy or an enemy firm ;
or
(ii) some person who was so interested and who was believed by the Custodian to be an enemy or an enemy firm, was not an enemy or an enemy firm.
14.Proceedings against companies whose assets vest in Custodian.
14. Proceedings against companies whose assets vest in
Custodian. Where the enemy property vested in the Custodian under this
Act consists of assets of a company, no proceeding, civil or criminal, shall be instituted under the Companies Act, 1956 (1 of 1956), against the company, or any director, manager or other officer thereof except with the consent in writing of the Custodian.
15.Return as to enemy property.
15. Return as to enemy property. (1) The Custodian may call for from persons who, in his opinion, have any interest in, or control over, any enemy property vested in him under this Act, such returns as may be prescribed.
(2) Every person from whom a return is called for under sub-
section (1) shall be bound to submit such return within the prescribed period.
16.Registers of returns.
16. Registers of returns. (1) All returns relating to enemy property submitted to the Custodian under this Act shall be recorded in such registers as may be prescribed.
(2) All such registers shall be open to inspection subject to the payment of such fees as may be prescribed and to such reasonable restrictions as the Custodian may impose, to any person who, in the opinion of the Custodian, is interested in any particular enemy property as a creditor or otherwise and any such person may also obtain
31.a copy of the relevant portion from the registers on payment of the prescribed fees.
17.Levy of fees.
17. Levy of fees. (1) There shall be levied by the Custodian fees equal to two percentum of-
(a) the amount of moneys paid to him ;
(b) the proceeds of the sale or transfer of any property which has been vested in him under this Act; and
(c) the value of the residual property, if any, at the time of its transfer to the original owner or other person specified by the Central Government under section 18:
Provided that in the case of an enemy whose property is allowed by the Custodian to be managed by some person specially authorised in that behalf, there shall be levied a fee of two percentum of the gross income of the enemy or such less fee as may be specifically fixed by the Central Government after taking into consideration the cost of direct management incurred by that Government, the cost of superior supervision and any risks that may be incurred by that Government in respect of the management:
Provided further that the Central Government may, for reasons to be recorded in writing, reduce or remit the fees leviable under this sub-section in any special case or class of cases.
Explanation.-In this sub-section “gross income of the enemy”
means income derived out of the properties of the enemy vested in the
Custodian under this Act.
(2) The value of any property for the purpose of assessing the fees shall be the price which, in the opinion of the Central
Government or of an authority empowered in this behalf by the Central
Government, such property would fetch if sold in the open market.
(3) The fees in respect of property may be levied out of any proceeds of the sale or transfer thereof or out of any income accrued therefrom or out of any other property belonging to the same enemy and vested in the Custodian under this Act.
(4) The fees levied under this section shall be credited to the
Central Government.
18.Divesting of enemy property vested in the Custodian.
18. Divesting of enemy property vested in the Custodian. The
Central Government may, by general or special order, direct that any enemy property vested in the Custodian under this Act and remaining with him shall he divested from him and be returned, in such manner as may be prescribed to the owner thereof or to such other person as may be specified in the direction and
32.thereupon such property shall cease to vest in the Custodian and shall revest in such owner or other person.
19.Protection of action taken under the act.
19. Protection of action taken under the act. No suit, prosecution or other legal proceeding shall lie against the Central
Government or the Custodian or an Inspector of Enemy Property for anything which is in good faith done or intended to be done under this Act.
20.Penalty.
20. Penalty. (1) If any person makes any payment in contravention of the provisions of sub-section (1) of section 7, he shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both and the payment or dealing shall be void.
(2) If any person contravenes the provisions of sub-section (2)
of section 10, he shall be punishable with imprisonment for a term which may extend to six months, or with fine, or with both.
(3) If any person fails to comply with a requisition made by the
Custodian under sub-section (1) or sub-section (2) of section 11, he shall be punishable with fine which may extend to five hundred rupees.
(4) If any person fails to submit the return under sub-section
(2) of section 15, or furnishes such return containing any particular which is false and which he knows to be false or does not believe to be true, he shall be punishable with fine which may extend to five hundred rupees.
21.Offences by companies.
21. Offences by companies. (1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due deligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed
33.
to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.-For the purposes of this section,-
(a) “company” means any body corporate and includes a firm or other association of individuals; and
(b) “director”, in relation to a firm, means a partner in the firm.
22.Effect of laws inconsistent with the Act.
22.Effect of laws inconsistent with the Act. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.
23.Power to make rules.
23. Power to make rules. (1) The Central Government may make rules for carrying out the purposes of this Act.
(2) Without prejudice to the generality of the foregoing power, such rules may provide for-
(a) the returns that may be called for by the Custodian under sub-section (1) of section 15 and the period within which such returns shall be submitted under sub-section (2) of that section;
(b) the registers in which the returns relating to enemy property shall be recorded under section 16;
(c) the fees for the inspection of registers and for obtaining copies of the relevant portions from the registers under sub-section (2) of section 16;
(d) the manner in which enemy property vested in the
Custodian may be returned under section 18;
(e) any other matter which has to be or may be prescribed.
(3) Every rule made by the Central Government under this section shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session 1[or in two or more successive sessions and if, before the expiry of the session immediately following the session or the successive sessions aforesaid], both
Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
———————————————————————
1 subs. by Act 40 of 1977, s. 9, for certain words (w.e.f. 27-9-
1977).
———————————————————————
34.24.Certain orders made under the Defence of India Rules 1962 and Defenceof India
Rules, 1971 to continue in force.
24. Certain orders made under the Defence of India Rules 1962.and Defence of India Rules, 1971 to continue in force. 1[(1)] Every order which was made under the Defence of India Rules, 1962, by the
Central Government or by the Custodian of Enemy Property for India appointed under those Rules, relating to enemy property and which was in force immediately before the expiration thereof shall, in so far as such order is not inconsistent with the provisions of this Act, be deemed to continue in force and to have been made under this Act.
2[(2) Every order which was made under the Defence of India
Rules, 1971 by the Central Government or by the Custodian of Enemy
Property for India appointed under those Rules relating to enemy property and which was in force immediately before the expiration thereof shall, in so far as such order is not inconsistent with the provisions of this Act, be deemed to continue in force and to have been made under this Act.]
25.Repeal and saving.
25. Repeal and saving. (1) The Enemy Property Ordinance, 1968.(7 of 1968), is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under the corresponding provisions of this Act.
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1 S. 24 renumbered as sub-section (1) thereof by Act 40 of 1977, S. 10 (w.e.f. 27-9-1977).
2 Ins. by s. 10, ibid. (w.e.f. 27-9-1977).
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