Phone Tapping in India

• 23 Apr 2022

For Prelims: Central Bureau of Investigation (CBI), Enforcement Directorate, Narcotics Control Bureau, Central Board of Direct Taxes, Directorate of Revenue Intelligence, National Investigation Agency

For Mains: Phone Tapping in India and related issues

Why in News?

Recently, a political leader claimed that the Centre is protecting an Indian Police Service officer who is facing a First Information Report (FIR) in Mumbai and is being probed for allegedly tapping the phones.

What is Phone Tapping and how are Phones Tapped in India?

• Phone tapping or cell phone tracking/tracingis an activity where a user's phone calls, and other activities are tracked using different software.
  • This procedure is majorly carried out without the targeted person being notified of any such activity.
• It can be done by authorities making 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.
• However, Article 21 of the Indian Constitution says that “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
  • The expression ‘personal liberty’ includes ‘right to privacy’. A citizen has a right to safeguard his personal privacy and his family, education, marriage, motherhood, childbearing, and procreation, among other matters.

Who can Tap Phones?

• State Level:
  • In the states, police have the power to tap phones.
• Central Level:
  • Intelligence Bureau, Central Bureau of Investigation (CBI), Enforcement Directorate, Narcotics Control Bureau, Central Board of Direct Taxes, Directorate of Revenue Intelligence, National Investigation Agency, Research and Analysis Wing (R&AW), Directorate of Signal Intelligence, Delhi Police Commissioner.

What are the Laws that govern Phone Tapping in India?

• The Indian Telegraph Act, 1885:
  • According to Section 5(2) of the Act on the occurrence of any public emergency, or in the interest of public safety, phone tapping can be done by the Centre or states.
  • The order can be issued if they are satisfied it is necessary in the interest of public safety, “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”.
• Exception for 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 sub-section.
  • The competent authority must record reasons for tapping in writing.

Who Authorizes Phone Tapping?

• Phone tapping is authorized by Rule 419A of the Indian Telegraph (Amendment) Rules, 2007.
  • In the case of the Central Government: The order can be issued by an order made by the Secretary to the Government of India in the Ministry of Home Affairs.
  • In the case of a State Government: By the Secretary to the State Government in-charge of the Home Department.
• In Emergency Situation:
  • In such a situation, an order may be issued by an officer, not below the rank of a Joint Secretary of India, who has been authorized 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 authorized law enforcement agency at the central level, and by authorized officers, not below the rank of Inspector General of Police, at the state level.
  • The order must be communicated within three days to the competent authority, who must approve or disapprove it within seven working days.
    • If the confirmation from the competent authority is not received within the stipulated seven days, such interception shall cease.
• It can be noted here that in 2021, the Central Government notified the Indian Telegraph Right of Way (Amendment) Rules, 2021.

What are the Checks against Misuse?

• Last Resort:
  • The law is clear that interception must be ordered only if there is no other way of getting the information.
• Renewal of Interception:
  • 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.
• Reasons Needed:
  • Any order issued by the competent authority must 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.
      • The committee is expected to meet at least once in two months to review all interception requests.
• 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 Forward

• The relation between the ‘right to privacy’ and ‘personal liberty’ was distinctly observed by the court of law, along with the necessities to tap communications of the individuals.
• The need of safeguarding the rights of the individuals and maintaining privacy is paramount but when it comes to public emergencies or safety in the public interest the procedure established by the court is to be followed while breaching the privacy of an individual and keeping it secretive because of the sensitive nature of the information gathered.
• The court has established a fair and just procedure to keep the checks and balances so that no misuse of power takes place.

Source: IE