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


Hasan Khurshid

The Hon'ble Supreme Court of India on December 18, 1996, had held that telephone tapping resorted by the Government under India Telegraph Act was violative of fundamental rights and a serious invasion of an individual's privacy, and it should not be resorted to by the Government under section 5(2) of the Act, unless there is public emergency or the interest of public safety is involved. "Occurrence of any public emergency or in the interest of public safety are the sine qua non for the application of the provisions under section 5 (2) of the Act," observed the Court.

The Bench was hearing a petition filed by People's Union for Civil Liberties (PUCL), challenging State's power to tap telephones. The counsel for the petitioner, Rajinder Sachar and Sanjay Parekh had contended before the Court that right to privacy was a fundamental right guaranteed under the Constitution and that section 5 (2) of the Act should be declared as unconstitutional as it did not provide adequate machinery to safeguard the right to privacy.

The Division Bench comprising Mr. Justice S. Saghir Ahmed and Mr. Justice Kuldip Singh, expressed its displeasure that to prevent the misuse of power, Government has not framed rules under the Indian Telegraph Act, 1885. The Bench observed that till such rules were made, "it is necessary to lay down guidelines for this purpose." The Court had laid down exhaustive guidelines to regulate the discretion vested in the State, under the Act. The Court had observed, "In the absence of just and fair procedure for regulating the exercise of power under section 5 (2) of the Act, it is not possible to safeguard the rights of the citizens guaranteed under Article 19 (1) (a) and Article 21." The Court had observed that 'right to privacy ' is included in right to life and liberty.

As per the guidelines prescribed by the Court, the Union Home Secretary  and in states, State Home Secretary on receiving a written request authorise phone tapping to various investigation agencies. To what extent the directions of the Court are being followed is the matter of record. The core purpose of discussion is that the worldwide scenario, post verdict appears to be more chaotic and full of complexities in the result of high technology coming up and its private partners. These critical issues need to be re-examined.

We can recall many instances of phone tapping by governmental agencies in the recent past. Say for example ' Tata tapes ' controversy, in which newspapers had published transcripts of Nasli Wadia's conversation about the possibility of extortion money paid to ULFA leaders to allow the running of tea plantation. Last year in April, Outlook magazine  ran a story on phone tapping of politicians including Sharad Pawar, Digvijay Singh, Nitish Kumar and Prakash Karat by National Technical Research Organisation. Reacting to this, BJP leader L.K. Advani in his blog, titled 'Is Emergency back?' had demanded a fresh law for protection of citizens' privacy and scraping of archaic Indian Telegraph Act of 1885.

Lobbyist Niira Radia's phone tape matter is quite fresh. There are reportedly 5000 conversations on tapes, out of which only 110 have been leaked. The motive given behind tapping was suspicion of tax evasion. Yet again on November 22, 2010, following inputs from Intelligence Bureau for passing on vital information to private companies in consideration to sexual favours and money, Ravi Inder Singh, IAS officer was arrested by Delhi Police. The police intercepted 12000 telephone conversations, which are now part of 2343 paged charge sheet filed in the Court.

The problem is not limited to phone tapping. After the Mumbai terror attacks, Information Technolgy Act was amended without any debate in the Parliament. This was notified in February, 2009. Section 69 of the Act carries some scary provisions. It provides for designated governmental agency to monitor and collect internet traffic data or information generated, transmitted, received and stored in any computer. It also provides for security agencies to block websites. The Government has reportedly asked the service providers of email, chat, Voice-over-Internet Protocol (VoIP) and Black Berry as well, to provide the security agencies real-time access to communication taking place over their networks. The Government has also formed a technical panel to look into the matter.

However, in general, intention of the State behind any form of surveillance is National and public interest. Whereas, with the advancement of technology, the real danger is scandalising of private conversations by mischief mongers and private  professionals. Niira Radia-like phone tapping and email reading is not limited to governmental agencies anymore. There are a large number of gadget manufacturers, suppliers and professionals like private detectives, who besides keeping manual surveillance make it possible for their clients to spy on competitor's business, colleagues, spouses, lovers, friends and foes.

Pawanjit Ahluwalia, CMD of Premier Shield Group and a renowned private detective reveals that the modern technology makes it possible for spooks to intercept phone conversations without involving the exchange and service providers and without seeking any permission from the competent authority. Thousands of phones are tapped by intercepting signals received by towers. This is possible through Integrated Service Digital Network, which is costly but not beyond the means of big corporate houses.

In addition to the above, bugs are planted in a premises to listen to the conversation taking place over there. Ahluwalia says unauthorised tapping is an offence under IT Act but the law is silent on bugging.  Another invasion of privacy is done by video surveillance. Such a surveillance is generally carried out by media persons for sting operation and detectives for providing proof to their clients. Yet another danger to individual's privacy is hacking. A hacker might take over your computer and turn it into a 'bot', through which numerous illegal activities can be performed, like sending out spam, scamming online shoppers and attacking well known websites. India has today become the top spam-producing nation. It will be very difficult to ban the manufacture and invention of technology for such purpose. At best what is possible is to update the laws consistent to advancement of modern technology and ban the unauthorised use of such technology through legal framework, says Ahluwalia.

As such this misuse of technology is a global phenomenon. In the year 2009, The New York Times ran a story about US National Security Agency's monitoring domestic emails of Americans routinely without Court orders. Similarly, Beijing reportedly disclosed its intention to recruit 10,000 internet censors to check the harmful contents. The founder of WikiLeaks, Julian Assange, who was recently arrested in London, has leaked cables that included unclassified, confidential and secret. Online payment service provider PayPal cut off WikiLeaks account used to collect donations, saying that the website is engaged in illegal activity.

As per the report published in The Sunday Telegraph last year, internet search network, 'Google' had confessed spying through Street View vehicle, entire emails sent by private individuals from households across Britain, the web pages they were viewing and passwords they had entered. However, later on Alan Eustace, its Vice President, apologised for this invasion of privacy.

The only protective shield for citizens' safeguard against invasion of privacy is through Law. However, the law must be amended at par with the pace of technological advancement. How can you imagine the archaic laws of 1885, to address the problems of hi-tech age. More so, such laws have to be drafted, implemented and adjudicated by high-profile technologically competent brains, otherwise the wicked and the spooks will have the last laugh and the law will remain a paper tiger only.



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