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Phone Tapping in India

Posted on April 25, 2022 by admin1  4401

In News

  • Recently, several politicians have accused the Centre of protecting officers under probe for tapping the phones of political leaders.

Phone Tapping in India

  • Meaning: 
    • It means interception of the contents of communication through a secret connection to the telephone line of one whose conversations are to be monitored usually without the consent of the person whose communication is monitored. 
  • Procedure:
    • Authorities make a request to the service provider, which is bound by law to record the conversations on the given number and provide these in real time through a connected computer.
    • All interception of phones and emails by the Union home secretary or state home secretary follow the prescribed procedure.
    • In unavoidable circumstances, such an order may be issued by an officer, not below the rank of a Joint Secretary to the Government of India, who has been authorised by the Union Home Secretary, or the State Home Secretary.
    • In remote areas or for operational reasons, if it is not feasible to get prior directions, a call can be intercepted with the prior approval of the head or the second senior-most officer of the authorised law enforcement agency at the central level, and by authorised officers, not below the rank of Inspector General of Police, at the state level.
  • Power of tapping phones: 
    • In the states, police have the power to tap phones. 
    • At the Centre, 10 agencies are authorised to do so:
      • Intelligence Bureau, 
      • CBI, 
      • Enforcement Directorate, 
      • Narcotics Control Bureau, 
      • Central Board of Direct Taxes, 
      • Directorate of Revenue Intelligence, 
      • National Investigation Agency, 
      • R&AW, 
      • Directorate of Signal Intelligence, and 
      • the Delhi Police Commissioner. 
    • Tapping by any other agency would be considered illegal.
    • The competent authority must record reasons for tapping in writing.
    • Exception for the press:
      • Press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this subsection.
  • Data: 
    • On an average, 6,000 to 8,000 telephones are tapped by various agencies at any given time based on authorisation by the Union home secretary. 
    • Besides, around 10,000 more telephones are lawfully intercepted by state governments.

Issues with Phone Tapping

  • Infringes right to privacy and liberty: The act of telephone tapping affects right to privacy as well as right to freedom of speech and expression, both are Fundamental Rights under the Constitution. 
  • Curtailment of freedom of speech: Violation of right of freedom of speech and expression is not permissible except what Article 19 of the Constitution provides.
  • Constitutional Test: Not only substantive law but even the procedure should satisfy the constitutional test. The procedure should be just, fair and reasonable. 

Existing Laws 

  • The Government follows procedures prescribed under the Indian Telegraph Act while ordering interception of phones and emails.
    • Section 5(2) says that “on the occurrence of any public emergency, or in the interest of the public safety”, phone tapping can be done by the Centre or states if they are satisfied it is necessary with reasonable restrictions of: 
      • In the interest of “public safety”, 
      • Sovereignty and integrity of India, 
      • The security of the State, friendly relations with foreign States,
      • Public order or 
      • For preventing incitement to the commission of an offence.
  • Rule 419A of the Indian Telegraph (Amendment) Rules, 2007:
    • Phone tapping orders shall not be issued except:
      • By an order made by the Secretary to the Government of India in the Ministry of Home Affairs in the case of Government of India and 
      • By the Secretary to the State Government in-charge of the Home Department in the case of a State Government. 
  • Besides this, an oversight committee which reviews each and every tapping ordered by the Union/state home secretary to verify if they were as per the law. The committee comprises the cabinet secretary (as head), law secretary and telecom secretary.

Measures Against Misuse

  • Using as Last Resort:
    • The law is clear that interception must be ordered only if there is no other way of getting the information.
    • Rule 419A mentions that while issuing directions under sub-rule (1) the officer shall consider the possibility of acquiring the necessary information by other means and the directions under sub-rule (1) shall be issued only when it is not possible to acquire the information by any other reasonable means
  • Proper Reasons:
    • Any order issued by the competent authority has to contain reasons, and a copy is to be forwarded to a review committee within seven working days. 
    • At the Centre, the committee is headed by the Cabinet Secretary with the Law and Telecom Secretaries as members. 
    • In states, it is headed by the Chief Secretary with the Law and Home Secretaries as members.
  • Controlled Disclosure:
    • Directions for interception are to specify the name and designation of the officer or the authority to whom the intercepted call is to be disclosed, and also specify that the use of intercepted call shall be subject to provisions of Section 5(2) of the Telegraph Act. It is done to maintain transparency.
  • Limited Time Period:
    • The directions for interception remain in force, unless revoked earlier, for a period not exceeding 60 days. They may be renewed, but not beyond a total of 180 days.
  • Destruction of Records:
    • Under the rules, records pertaining to such directions shall be destroyed every six months unless these are, or are likely to be, required for functional requirements. 
    • Service providers too are required to destroy records pertaining to directions for interception within two months of discontinuance of the interception.

Way Ahead

  • Telephone-tapping infringes Article 21 of the Constitution of India unless it is permitted under the procedure established by law.
  • Thus, the power of interception of communication can be resorted to, when it is necessary or expedient to do so in the interest of the sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order or for preventing incitement to the commission of an offence.

 

Judgements on Phone Tapping 

  • The Supreme Court in PUCL vs UOI (decided in 1997) had dealt with the aspect of telephone tapping when the CBI had brought out in its Report in 1991 mass-scale illegal telephone tapping. 
    • After examining the issue in depth, the Court said that “the right to hold a telephone conversation in privacy of one’s home or office without interference can certainly be claimed as the right to privacy” and that “telephone conversation is an important facet of man’s private life.
    • After the PUCL case, in 1997, the Union Government brought some amendments in the Indian Telegraph Rules, 1951 and inserted Rule 491-A to regulate the tapping of phones.
    • It also laid down guidelines for phone tapping.
  • The Telegraph Act also gave safeguards against illegal and gratuitous interference in the telegraph and telephone mechanisms whereas even in the case of Rayala M. Bhuvaneswari vs Nagaphanender Rayala (2008) the AP High Court held that the act of tapping by the husband of the conversation of his wife with others was illegal and it violated the right of privacy of the wife. In the said case the husband was recording the conversations of his wife. 

Source: IE

 
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