Phone tapping refers to an act where a user’s phone is monitored through listening/recording a communication happening over the phone. The intention behind it is to get information for protecting the security and sovereignty of the state.
In India, it can only be practiced by the government or legal body. It needs permission in an authorized manner from the concerned authorities. It is illegal to practice it without any permission and can lead to punishment.
How Are Phones Tapped In India?
During the time of fixed-line phones, mechanical exchanges would link various circuits together to route the audio signal from the call. Wiretaps were used to listen to the conversations happening through the phone.
When everything went digital, phone tapping was done through a computer. Nowadays, with the ease of mobile phones and wireless communications, intelligence and security agencies can carry out a direct off-the-air interception by using specialized technological equipment. However such interception has to be carried out as per established legal norms.
Apart from that, these security agencies work closely with cellular service providers and these telecom companies are responsible for assisting the security agencies in interception and phone tapping.
However, not all government agencies and departments can tap phones. Telephones along with other communication devices are mentioned under Entry 31 of the Union List of the Seventh Schedule of the Constitution. This places the telephones and communication devices under the hold of the Central Government.
But under the Indian Telegraph Act, 1885, both Central and State governments have the right to intercept telephones, as per Section 5(2). Here is a list of security agencies that are authorized to intercept phones-
- State Police and State Intelligence Department
- Intelligence Bureau
- Central Bureau of Investigation
- Enforcement Directorate
- Narcotics Control Bureau
- Central Board of Direct Taxes
- Directorate of Revenue Intelligence
- National Investigation Agency
- Directorate of Signal Intelligence
- Research and Analysis Wing
- National Technical Research Organization
What Laws Govern Phone Tapping In India?
Phone tapping in India is governed by the Indian Telegraph Act, 1885. The law clearly states that this tool can only be used when there is no other way left of getting the information.
Section 5(2) says that “on the occurrence of any public emergency, or in the interest of public safety” phone tapping can be done by the Centre or State if they are satisfied that no other option is left. It can only be done concerning public safety, sovereignty, and integrity of India, the security of the State, friendly relations with foreign states or public order, etc.
An exception is made in the case of the press. To ensure freedom of the press and to protect the independence of media, journalists who are accredited to central and state governments cannot be brought under interception unless it is established that it is in the interest of national security.
Rule 419A of the Indian Telegraph (Amendment) Rules, 2007 says that 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 Central Government
- Secretary to the State Government in charge of the Home Department in the case of a State Government
The order must be written and sent to the service provider.
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What Are The Checks Against The Misuse Of Phone Tapping?
The law clearly states that the interception must be ordered only if there is no other way left of getting the secret information out. The orders for such interception will remain in force for a period not exceeding 60 days unless revoked earlier and it can be reviewed not beyond a total of 180 days.
The orders issued by the competent authority and the copy of it must be sent to the review committee within seven working days. At the central level, a review committee has to be constituted which will be headed by the highest-ranking civil servant in the country, the Cabinet Secretary.
He will be assisted by the secretaries of law and telecom ministries as members of the committee. At the state level, it is headed by the Chief Secretary of the state with the Law and Home secretaries as members.
Along with this, clear guidelines have been laid out for the destruction of these audio messages and also to discontinue surveillance and interception after the required purpose has been fulfilled. It is required to destroy all the records within six months. The service providers are also required to do so within two months of discontinuance of the interception.
Does Phone Tapping Violate Article 21?
Critics and activists have often pointed out that phone tapping violates fundamental rights guaranteed under Article 21 i.e., the right to life and personal liberty. They have also said that not only Article 21 but Article 19 (right to freedom of speech and expression) is also violated.
This is especially important in the context of the landmark judgment of K.S. Puttaswamy vs. Union of India Case, 2018. In this case, Supreme Court upheld the right to privacy as a fundamental right enshrined under Article 21.
It is said that the government may misuse its power to curb the right to privacy and right to life under such provisions, especially of the opposition. So the debate lies between the right to privacy and the freedom of speech on one side and national security on the other.
To prevent any blatant misuse of the law, a fair and reasonable procedure has been set up by the Supreme Court which allows for phone tapping to be carried out only in case of public emergency.
The procedure was laid down in 1996, when the Supreme Court stated exhaustive guidelines to regulate Section 5 of the Indian Telegraph Act, 1885 for the authorization of interception of messages in specific circumstances.
Before laying the guidelines, the relation between ‘right to privacy’ and ‘personal liberty’ was distinctly recognized by the Supreme Court. To strike a balance between the rights of individuals and maintaining security and public order, these fair and just guidelines have been issued to prevent the misuse of these extraordinary powers.
If these guidelines are breached by the authorities, then they are held responsible for illegal interception. They can be prosecuted in a court of law and can even be punished by the courts.
Why In The News?
Recently, a member of parliament from Maharashtra named Sanjay Raut has claimed that his phone was tapped by the State Intelligence Department (SID) in 2019. He has accused the Center of protecting IPS officer, Rashmi Shukla who was heading the SID in 2019. He has filed an FIR against her.
The guidelines proposed by the Supreme Court make the service providers responsible for the actions of their employees. In case of unauthorized interception, the service provider may be fined or even lose its license. So, there is a sense of fear and responsibility in the government authorities and the service providers.
Disclaimer: This article is fact-checked
Sources: Indian Express, The Hindu, Legal Service India
Image sources: Google Images
Feature Image designed by Saudamini Seth
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