A K Agnihotri : PHONE TAPPING

There have been some controversies attached to this mode of collection of intelligence and has been a favourite ploy of politicians to garner fame by claiming that their phones are being tapped by Intelligence agencies. The Radia Conversations have only added to the infamy of the perfectly legitimate means of collection of intelligence. This article will attempt to trace a brief history and the legal provisions and the safeguards mandated by the Supreme Court. Unfortunately the Right Privacy Act is still not seeing the light of the day which would prevent some of the ills which have crept into the system.

LEGAL PROVISIONS

5.     Power for Government to take possession of licensed telegraphs and to order interception of messages. –

(1) On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorized in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do, take temporary possession (for so long as the public emergency exists or the interest of the public safety requires the taking of such action) of any telegraph established, maintained or worked by any person licensed under this Act.

(2) On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorized in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order:

        Provided that 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 sub-section.

Section 7 (2) (b) of the Indian Telegraph Act of 1885 mentions that the government should formulate “precautions to be taken for preventing the improper interception or disclosure of messages”.

  By an amendment made to Section 5(2) of the Telegraph Act in 1971, the government agencies acquired powers to intercept communications, however the authorised agencies were notified only with the imposition of emergency in 1974, and the phone tapping acquired far greater focus since the initial phase of the emergency was used to put away smugglers and foreign exchange racketeers. It was during this period that agencies under the Revenue Department got power to intercept phones on a widespread manner. The equipment was manufactured in a small firm based in Bangalore and the cassette tapes were used to record the conversations. The machines were manual and a staff had to posted to plug in the lines of relevance. The level of sophistication of these machines did not change till 1992 and the standard machine could tap 10 lines. The greater problem was repairs, since these machines were not very reliable and the company from Bangalore had to fly in to repair which often took days, since the same mechanic had to travel all over India. Even so the results were excellent and major cases were detected with help of these machines. The smugglers had also over the period acquired information in regard to the machines and coded language became to be used. The officers manning the machines were few and rotated on deputation between the concerned agencies. The Central Economic Intelligence Bureau was created in 1987 and acquired these powers, followed by Narcotics Control Bureau in 1988 and the Central Bureau of Investigation in 1992. The powers to all the agencies were given after a formal approval of the Cabinet and a well established procedure was evolved to prevent misuse of the facility. However even when these agencies acquired these powers, there was considerable debate within the Government in regard to allowing the powers for revenue agencies. The issue was also referred to expert legal opinion and the consensus which emerged was that smuggling weakened the financial fabric and besides undermined the financial security and there could be include in the phrase “On the occurrence of any public emergency, or in the interest of the public safety”. The state government agencies which had been intercepting communications on an informal basis were also given formal powers after 1992, though the interception on an informal basis continues, especially with the MTNL/BSNL lines.

In 1988, Mr Chandrasekhar a senior political leader alleged that his phones were being tapped. This led to a furore in the political circles and special checks carried out to ensure that no illegal tapping was being carried out. A Committee headed by then Home Secretary, Mr Naresh Chandra was tasked to put in place safeguards in this regard. The empowered intelligence agencies had a well streamlined procedure for interception, but the IB/RAW and the state police were always above law in this regard, since they were intercepting at exchange level and hence there was no record of intercepted communications.

Even for the Revenue agencies, approval to intercept specific persons was only required from the Head of the Department and there was no routing to Home Ministry. However each department had to renew its powers annually and report the previous year’s performance in order to continue with the powers. The system worked because the officers entrusted with the work were specifically identified and the officers subjected to periodic verification. There were of course instances of misuse but the punishment was severe and officer(s) condemned.

In 2003 however the first large scale misuse became evident. Even at that time not much was made of the illegality of the interceptions, especially so, since the Supreme Court decision on the powers of interception had built in safeguards in this regard. Subsequently, Income Tax got powers to intercept communication. This led to muted protests since Income Tax was a civil offence and power of interception of Communications under the Telegraph Act denoted certain amount of criminal intent. There were a number of violations of the procedure in the decision to give powers to Income Tax.

1.         The earlier decisions for interceptions were always with the approval of the Cabinet: in this case even the Home Ministry was kept in the dark.

2.         The provisions of Section 5(2) were ignored

3.         The Income Tax violations do not affect public safety 

4.         The Income tax was a civil law

5.         Even the Home secretary when he was first approached for approving interception did not object.

6.         The Review Committee headed by Cabinet Secretary also did not put in any objections in the matter.

Analogous to what was happening in Ministry of Finance, even the CBI was using these powers of interception for corruption cases when the mandate was only for keeping a track of terrorist related crimes which was the approved purpose when CBI got the powers in 1992. To compound the illegality, both Income Tax and CBI are obtaining permissions under the provisions of Section 5(2) when both the CBI and Income tax are actually not using the powers for the purpose for which they obtain permission from the Home Secretary. The trouble is that neither the Home Secretary nor the Cabinet Secretary really examine the requests from the departments and all permissions are given in a routine manner. But after news reports surfaced of head of a department’s relatives personal phone being intercepted, the Revenue Secretary has now to personally examine and approve the phone numbers before forwarding the request to the Home Secretary.

It is a fact that ever since 1885, no Government, whether British or Indian, had formulated any such precautions.

In a recent case of Arora V/s Dhanraj Singh and others, the Supreme Court has held that for the purpose of evidence, the medium of recording cannot change. In this case involving a private person, conversation was recorded on a mobile phone and then transferred to a pen drive. The court held that the original phone recording would have been admissible but the recording loses evidentiary role when the medium is not the same. This judgment of the Supreme Court will create a lot of problems for Govt. Agencies since the present machines are extremely sophisticated but the recordings are embedded in the system and the intercepted communications are transferred to pen drive to make them accessible to officers. The Supreme Court judgment may also impact the Radia tapes since the medium of recording has changed.

FAQ’s

1.  Is the government empowered to intercept communication between two individuals?

Answer: Yes. The Central and the State government can intercept communication.  Letters, telephone (mobiles and landlines) and internet communication (e mails, chats etc.) can be intercepted by the government.

Interception of:

•           postal articles is governed by the Indian Post Office Act, 1898 [Section 26];

•           telephones is governed by the Indian Telegraph Act, 1885 [Section 5(2)];

•           emails/chats etc. is governed by the Information Technology Act, 2000 [Section 69].

2. Under what circumstances can the government intercept communication?

Answer: The circumstances under which communication can be intercepted by the government are:

•           for postal articles: the occurrence of any public emergency, or in the interest of the public safety or tranquillity;

•           for telephones: in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence;

•           for e mails / chats etc.: in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order or for preventing incitement to the commission of any cognizable offence relating to above;

3. Are there any safeguards that have been built into the interception process?

Answer: The Supreme Court in the case of PUCL Vs Union of India observed that the right to have telephone conservation in the privacy of one’s home or office is part of the Right to Life and Personal Liberty enshrined in Article 21 of the Constitution, which cannot be curtailed except according to the procedure established by law.

Elaborating the scope of Section 5 (2) of the Indian Telegraph Act, 1882 the Court clarified that this section does not confer unguided and unbridled power on investigating agencies to invade a person’s privacy.

The court laid down the following safeguards:

a. Tapping of telephones is prohibited without an authorizing order from the Home Secretary, Government of India or the Home Secretary of the concerned State Government

b. The order, unless it is renewed shall cease to have authority at the end of two months from the date of issue. Though the order may be renewed, it cannot remain in operation beyond six months.

c. Telephone tapping or interception of communications must be limited to the address (es) specified in the order or to address (es) likely to be used by a person specified in the order.

d. All copies of the intercepted material must be destroyed as soon as their retention is not necessary under the terms of Section 5 (2) of the Indian Telegraph Act, 1882.

e. In an urgent case, this power may be delegated to an officer of the Home Department, Government of India or the Home Department of the State government, who is not below the rank of Joint Secretary. Copy of this order should be sent to the concerned Review Committee within one week of passing of the order.

f. This Review Committee shall consist of the Cabinet Secretary, Law Secretary and the Secretary Telecommunications at the Central Government. At the state level, the Committee shall comprise of Chief Secretary, Law Secretary and another member (other than the Home Secretary) appointed by the State Government. The Committee shall on its own, within two months of the passing of an order under Section 5 (2) investigate whether its passing is relevant. If an order is in existence, the Committee should find out whether there has been a contravention of the provisions of Section 5 (2). If the Review Committee on investigation concludes that provisions of Section 5 (2) have been contravened, it shall direct destruction of the copies of the intercepted material.

In pursuance of the Supreme Court judgement the Indian Telegraph (First Amendment) Rules, 1999 were framed and notified on 16.02.1999.

A similar notification titled, the Information Technology (Procedures and Safeguards for Interception, Monitoring and Decryption of Information Rules, 2009 were notified on October 27, 2009.

4. Are there any other known cases of telephone tapping of politicians?

Answer: In 2005, Shri Amar Singh alleged that his telephones were tapped by private individuals.  The case against them is currently pending in the Tis Hazari court in Delhi.

5. Are there any statistics about the number of telephones being tapped by the government?

Answer:  Currently no such statistics are publicly available. 

                                                                                                                                                          To be continued