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--------------- Print Magazine --------------
  May 2016
  April 2016


Is Government An EavesDropper?

Hemant Kumar, Advocate
Apart from duly authorized cases of phone tapping by law enforcement agencies, there have also been instances wherein the members of the ruling class allegedly directed the former, albeit ostensibly, to indulge in illegal phone snooping of the latter’s political adversaries for its vested interests and the same has been continuing unabated, notwithstanding which political party or alliance is in power. Nevertheless, this kind of illegal act and immoraal practice of political espionage by powers that be, is highly disgraceful apart from serious invasion of privacy of individual(s) considering that our country is not a ‘ Police state’ but the world’s largest democracy.

In February, there were widespread reports appearing in Media about alleged phone tapping of Arun Jaitley, Leader of Opposition in Rajya Sabha and a senior leader of BJP. Amidst much furore generated in the Upper House of Parliament, where members cutting across party lines lambasted the government over this contentious issue, Union Home Minister, Sushilkumar Shinde on March 1 denied any "telephone tapping" of Jaitley although he did admit that Delhi Police had registered a case wherein an attempt was made by an absentee Delhi Police constable to obtain Call Data Records (CDRs) of certain cell numbers including that of Jaitley's from the Nodal Officer of a private cellular company after misusing the official email ID of a senior police officer.

It was further averred that the same constable who was earlier posted in Special Staff used to obtain such kind of CDRs at earlier occasions also and then pass it over to certain private detective(s) who worked as a private racket. But when during investigation, certain other high profile names came to limelight, whose CDRs were also snooped, the issue snowballed into a major controversy hinting at a wider angle of political and corporate rivalry. Whatever theory may be spelled out officially, but had such a thing been possible without the backing of the higher authorities, is anybody's guess.

Similar phone tapping row was recently reverberated in the hilly state of Himachal Pradesh too when the newly installed Congress Government under Virbhadra Singh in early March recommended a thorough probe by State Vigilance over allegations of mass telephone tapping during the previous Dhumal Government of BJP. Political allegations and counter allegations by rival political parties apart, one thing is crystal clear that phone tapping at such a scale could not take place without tacit political and official support.

The above couple of instances apart, in recent years, many scandals have erupted due to either completely unauthorized phone-tapping - as was the case with then Samajwadi Party leader Amar Singh - or lack of accountability in the official process, most notably highlighted by the leaking of corporate lobbyist Niira Radia's tapes. Both these cases moved up to the level of the Supreme Court.

Phone tapping has always been a subject of controversy worldwide. In United States, it is known as 'wire tapping'. Legally, it can be done only in an authorized manner with due permission from the concerned competent authority. If the same is undertaken without the same, then it is illegal and results in prosecution of the person(s) responsible as per provisions of the relevant statute including for breach of privacy.

The mention for authorization of interception (commonly known as phone tapping) in India is contained in section 5 (2) of the Indian Telegraph Act (ITA), 1885.Originally, only Intelligence Bureau (IB) and Research and Analysis Wing (RAW) were engaged in such tapping but without formal approval. The primary purpose was to target smugglers and foreign exchange racketeers. But gradually, the focus shifted towards political opponents vis- a-vis ruling elite. With due course of time, certain other government agencies too acquired powers to intercept communications like Directorate of Revenue Intelligence (DRI) , Enforcement Directorate (ED), Narcotic Control Bureau (NCB) and Central Bureau of Investigation (CBI) etc.

It is no doubt correct that every Government, howsoever democratic, exercises some degree of sub rosa operation as a part of its intelligence outfit but at the same time citizen's right to privacy has to be protected from being abused by the authorities of the day," remarked Justice Kuldip Singh, then Supreme Court Judge in PUCL's case ( December, 1996)

It is pertinent to mention here that the Supreme Court has upheld the constitutional validity of interceptions and monitoring under section 5(2) of ITA vide its historic judgment titled People's Union for Civil Liberties (PUCL) v. Union of India (December 1996). The Court held that the right to hold a telephone conversation in the privacy of one's home or office without interference can certainly be claimed as "Right to Privacy", and accordingly, held that telephone tapping would infringe the Right to Life and Right to Freedom of Speech & Expression enshrined in Articles 21 and 19(1)(a) respectively of the Constitution of India, unless it is permitted under the procedure established by law.

But there is a catch here. Although the Apex Court had clearly laid down that the duly constituted "Review Committee" can conduct suo motu enquiry and investigation with respect to any ongoing phone tapping within a period of two months of the passing of such order in order to satisfy itself whether there has been strict compliance of provisions of Section 5(2) of the ITA or not, the 2007 Rule has no mention to it though the earlier one viz. of 1999 had clearly provided the same. One wonders is this an inadvertent omission or otherwise?

Also the ibid Committee as mandated by the Supreme Court currently comprises of three Secretary level officers with Cabinet Secretary heading it at Central level and Chief Secretary at State level. But there is no representative of higher judiciary or even any legal luminary much less any independent nominee of the Civil Society to keep a due check over the working of the Committee as senior bureaucrats, howsoever high, are always vulnerable to diktats of political bosses. It is high time that the Committee is made more broad based, empowered and quasi-judicial. Such an initiative would definitely pass the test of judicial and public scrutiny.

It may also be recalled that the incumbent Union Minister for Communications and Information Technology, Kapil Sibal, was one of the senior counsels who appeared in the above cited case and assisted the Apex Court while defending the cause of PUCL where he strongly advocated that procedural safeguards , but short of prior judicial scrutiny as suggested by senior advocate, Rajinder Sachar, shall have to be read in section 5 (2) of the Act to save it from the vice of arbitrariness. Sibal also supported toeing the then law on the subject prevailing in England viz . Interception of Communications Act, 1985.

Noteworthy that the same law is now repealed and "Regulation of Investigatory Powers Act, 2000 (RIPA) " has been enacted in the UK . In USA , there is Wire Tap Act (1968) and Foreign Intelligence Surveillance Act (1978) for undertaking such phone interceptions.

Would Mr. Sibal endeavour to emulate such kind of law here too, now that he is at the helm of affairs of a Ministry which can kick start the process of drafting such a law? Of course, my suggestion would be dismissed as being "politically incorrect" by the Hon'ble Minister.

Be that as it may, an RTI application (January 2012) revealed that the Union Home Ministry accords its sanction to seven to nine thousand requests of phone tappings a month. This, however, does not include interceptions sanctioned in the states. In case of UK, a Communication Commissioner under RIPA, 2000 performs this task and his annual report is also available online. Would such a system ever see light of the day in our country also? Well, it does not seem possible, at least for now, owing to the lackadaisical approach of our law makers.

Now, reverting back to issue of illegal procurement of CDRs of cellphones of political and other high profile persons by private detective(s) as mentioned in the very first paragraph, although the same cannot be termed as phone tapping in the strict technical sense, the same is nevertheless a serious breach of privacy of an individual.

Whenever a person uses the services of a Telecom Service Provider(TSP) , the latter is ought to maintain due confidentiality/secrecy of his/her CDRs except when the same are required by law enforcement agencies who notice or sense something notorious or are suspicious on some particular person(s); but that too are to be supplied after following a laid down process.

There can't be second opinion that in contemporary era, where crime graph is rising alarmingly, CDRs are immensely useful in cracking a whopping number of criminal cases. Actually, in almost every case, before due investigation, police or investigative agencies firstly resort to CDRs of suspects. The CDRs when analysed minutely, rapidly build a "relationship tree" and charts a relationship between thousands of calls made or received via a cell phone in question.

Hence a blanket ban on procurement of CDRs would neither be feasible nor advisable although more stringent safeguards need to be devised and put in place so that no private individual including any professional sleuth can have access to it even in connivance with any official of any TSP. Currently, our Telegraph Act does not contain any express mention about maintaining confidentiality of CDRs in respect of phone subscribers as the same was quite unforeseen at the time this Act was enacted in 1885. This kind of data ought to be accorded due secrecy statutorily save in exceptional circumstances and for the breach of which TSPs should be held liable even if the liability is vicarious.

Lastly, it can be concluded that there is an urgent need for revisiting current system governing Phone Tapping in our country as it warrants much more effective regulation. Equally important is the necessity of putting in place stringent norms so as to ensure that CDRs of mobile subscribers cannot be accessed by just anyone or everyone by abusing the prevalent mechanism(s).

In early March, there were reports of Central Government soon setting up an advanced phone and internet data tapping mechanism viz . Central Monitoring System (CMS) which when fully operational would remove all manual intervention during tapping exercise and substantially reduce the risk of any leakage. This mechanism would also ensure a clear electronic audit trail of the phones tapped.

Although the aforesaid CMS is proposed under the Department of Telecom (DoT) but proposed to be manned by Intelligence Bureau (IB), an issue which might stir up a hornet's nest, as the constitution of much anticipated National Counter Terrorism Centre (NCTC) is also being delayed because of it being under IB. Under present state of affairs , opposition parties might not relent on this very issue. It would be much appreciable if CMS is placed under the control of duly constituted authority (not fully executive) which must be accountable to the Parliament.

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