Ninad Senad
“There is nothing we like to communicate to others as much as the seal of secrecy together with what lies under it.”
Friedrich Nietzsche
Introduction
The recent judgment by the Hon’ble Delhi High Court Santosh Kumar & Ors vs. Union of India has once again broached debates over the topic of interception of telephonic calls and phone tapping in the country. The Indian populace is familiar with the process of phone tapping owing to the influence of popular culture where extraordinarily intelligent police officers or a heroic protagonist attempt to trace or eavesdrop on the dealings and conspiracies. Nevertheless, there is a need to actually learn about this phenomenon pragmatically and delve more into its applicability and related laws, and further analyze it in the context of privacy. Interception or tapping of calls or messages is not just in correspondence with the concept of privacy, rather it automatically implies the breach of privacy or an attack on it.
Genesis/History
Telephone tapping or wiretapping is defined as “the activity of secretly fitting a special device to someone’s phone in order to listen to their phone conversations without being noticed”1. It was first known in the U.S.A back in the era of 1890s, immediately after the invention of the telephone recorder, when Roy Olmstead, a bootlegger was sentenced by the Court on the basis of evidence obtained against him by tapping a telephone in his house. He, at that time, had disapproved of this action of tapping against him and claimed that his basic rights have been affected. However, the Seattle court in its judgment maintained his conviction and said that tapping of a phone is not an attack on the privacy of an individual. The discussions over this subject kept going on before and after World War II, predominantly in the U.S. House of Representatives which had elaborated hearings on the permissibility and legitimacy of interception of telephone calls and wiretapping for the concerns of national interest. Then arrived the case of Charles Katz v. United States2, wherein the U.S Supreme Court opined that wiretapping requires a warrant. Thereafter, Foreign Intelligence Surveillance Act (FISCA), was created in 1978 for granting warrants for wiretapping in cases concerning national security.
Status in India:
The mention of devices for communication can be found in Entry 31 of the Union List3. In India, phone tapping is only permitted under specific circumstances and with departmental approval. However, if it’s done without authorization, it’s against the law and the offender will be prosecuted for violating someone’s privacy.
According to Section 5(2) of the Indian Telegraph Act of 1885, both the Central Government and State Governments have the authority to intercept telephone calls. In some cases, the investigating authority or agency is required to record the suspect’s phone calls. Before carrying out such an act, agencies must obtain permission from the Home Ministry of the respective State or Union government under the aegis of which the agency functions. Specific justifications must be cited in the application for authorization. Furthermore, the need for telephone interception must be shown. Only then the ministry will evaluate the application’s merits and approve authorization after determining if the interception is warranted.
Moreover, Section 25 of the Act stipulates that strict action must be taken in the event of illegal phone tapping and information extraction. The act provides for a maximum 3-year sentence in case of such offences. The inspecting authority may occasionally feel the necessity to record the phone calls made by the person whose credibility is in question. Before moving through with such a demonstration, the experts should get approval from the Home Ministry. Explicit information and motivations must be presented in the request. The need for phone tapping should also be explained. At that stage, the Ministry evaluates the request’s justification and urgency before granting authorization. Before placing a phone under investigation, every agency issues an authorization slip. The State Home Secretary is given the power to impose sanctions with reference to States. Legislative leaders’ phones cannot be formally bugged. The fact that the person being assessed is not a politician must be made abundantly apparent on the slip.
All the procedures and prerequisites to execute such interceptions are given in Section 419-A of the Indian Telegraph Act, 1885.
Regulation:
Any method of surveillance aids the State in keeping crime under control and averting situations that can wreak havoc in the community. It aids in preserving and defending a country’s safety and sovereignty. In a similar vein, Indian agencies employ communication tools and electronic monitoring of their citizens to preserve public order. The most frequent method of violating a person’s privacy that is authorized by the State is eavesdropping and intercepting communications. Delhi HC’s above-mentioned judgement4 says that the disclosure of elaborate reasons to intercept the calls is not mandatory. This specific judgment bestows upon the authorities issuing warrants or monitoring the interceptions, the power that is compelling or dominant in nature.
The PUCL case5 (Peoples Union of Civil Liberties) ensured that such intrusions are only carried out by the authorized entities and that they do so while staying within the boundaries of the established legal process. The recommendations that were subsequently offered made care to explain, inter alia, the steps that must be taken and the authorities that have the authority to authorize wiretapping. Because different laws regulate different forms of communication, interception as such becomes complicated.
Additionally, the authorization process is vulnerable and leaves huge scope for power abuse without authorization. When queried about the number of requests for authorization for telephone tapping being made by various agencies, the Government hesitates to offer correct information, which highlights the need for regulation and protections to be kept in place. Several times now, the government has refused to furnish the requested information under RTI applications. The government has sought refuge in Section 8 of the RTI Act as justification for avoiding information requests. Section 8 has a wider scope and talks about the ‘exemption’ from the disclosure of information for the sake of the integrity and sovereignty of the country.
It becomes evident what the laws and regulations should be and how they should be applied when there is a proper flow of information in the public domain. Intelligence agencies have been placed under the scope of RTI in situations where it is alleged that human rights have been infringed so that appropriate safeguards may be implemented against any form of arbitrary action, according to the decision in CPIO, Intelligence Bureau v. Sanjiv Chaturvedi (2017 SCC Online Del 10084).
Nexus with the Privacy:
In the PUCL case (supra), the Supreme Court ruled that wiretapping is a serious infringement of one’s privacy. The Court cited Kharak Singh v. State of U.P6 and stated that Article 21 covered the “right of an individual to be free from limits or encroachments on his person” in order to establish the basis for the existence of the right to privacy and government violations of the same. Although the physical breach of a person’s privacy was the focus of this case, PUCL broadened the definition to encompass telephone calls. The ability to have an uninterrupted telephone call in one’s home or place of business may unquestionably be asserted as a “right to privacy,” it was said. It has been argued that the act of phone tapping breaches the fundamental rights of Article 19 and Article 21.
The wiretapping of telephones violates both the right to privacy and the right to freedom of speech and expression, which are of paramount significance in an individual’s life. Violation of these two essential fundamentals elucidates the poignance associated with the concept. However, when the conduct is allowed because of the legal procedure, these violations are not taken into account. However, the authority that will be used to enforce the right to privacy must have a compelling justification. Furthermore, it was stated in R.M. Malkani v. State of Maharashtra7 that “Article 21 envisions procedure established by law with relation to impairment of life or personal liberty.” Courts will safeguard innocent citizens’ telephone conversations from improper or intrusive interception by listening in on them.
Conclusion:
All the channels of the discussions on this topic meet at the juncture called
‘privacy’. The merits and demerits of any particular law or rule will always be scrutinized from the lens of the intended objectives and their effect on the fundamental rights of any individual. Undoubtedly, random interception of anyone’s phone call would reflect light on his/her privacy but it will be overruled if it threatens the ‘public’. Whatever may be the degree of universality of any right, if it acts as an impediment to society’s progress, that universality will not be accepted by the courts. Yet, the balance of reasonableness must be adequately maintained.
It is true that the current law needs more precision in regulation and some of the foundations of this law must be looked into. The procedure followed in the U.S can proved to be of significant help in the system of our country. ideal system in our country. In the U.S judges in the court allow the sanctions of such tapping after investigating the merits of the request. Thus, despite the necessities maintained by the state, civil liberties cannot be at the end of a compromise, as Justice Sachar (former Chief Justice of Delhi high Court) rightly says: “Civil liberties are far too important to be left to the executive or the Home Secretary. There is every danger of wrong permissions being given out, resulting in indiscriminate tapping.”
1 Cambridge Advanced Learner’s Dictionary & Thesaurus, 4th Edn. (2013), p. 976.
2 1967 SCC Online US SC 248: 389 US 347 (1967)
3 Constitution of India, Sch. 7, Union List, Entry 31
4 Santosh Kumar & Ors vs. Union of India
5 People’s Union for Civil Liberties vs. Union of India [(1997) 1 SCC 301]
6 AIR 1963 SC 1295
7 (1973) 1 SCC 471