By: Arushi Kulshrestha, The NorthCap University, Gurugram
“I really believe that we don’t have to make a trade-off between security and privacy. I think technology gives us the ability to have both.”[i]
As we all know with the passage of time, technology has become an important part of human life also, advanced in every aspect due to the need of the society, but no one ever thought about the consequences of this advancement in the technological world which leads to phone tapping activities means “the activity of secretly fitting a special device to someone’s phone in order to listen to their phone conversations without being noticed”[ii].
Sometimes it leads to an invasion of the right to privacy of an individual. In India statutes like Indian Telegraph Act,1885 defines ‘telegraph’ “any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images and sounds or intelligence of any –nature by wire, visual or other electromagnetic emissions, Radio waves or Hertzian waves, galvanic, electric or magnetic means.
The exception is that presence of guilt is necessary. Also, should be in the public interest, the sovereignty of the country”[iii].
No private individual has the right to incept the communication of another individual, only the government of India has the power to take possession of any licensed telegraphs in case of a public emergency or in the interest of public safety[iv].
Wiretapping is of two types[v] first is Passive wiretapping which is completely legal because it can only be done by the government by following proper procedure and the second one is Active wiretapping/illegal interception where the attachment made to an unauthorized device to gain every single access to data for instance by generating false messages or controlling signals or altering the communications, in this respect section 25 of Telegraph Act, 1885 states 3 years of imprisonment for illegal and unwarranted interference in the telegraph and telephone mechanisms.
The act of telephone tapping affects the right to privacy of an individual as well as the right to freedom of speech and expression, both are Fundamental Rights under the Constitution. Art. 21 of the Constitution, which gives protection to life and liberty, can allow only such legislature-made law which meets the constitutional requirements and applies a procedure which is just, fair and reasonable[vi].
In a plethora of judgments ‘Right to Privacy’ has been held as an integral part of the ‘Right to Life’ and ‘Personal Liberty’[vii].
1.1 PHONE TAPPING IN INDIA
The Telegraph Act is an existing law[viii] and phone tapping/ wiretapping is regulated by this act. New problems surfaced around 1995 when wireless telecommunications gained ground in India.
For that instance, the court mentioned two statutory pre-conditions for the exercise of the power to intercept, either the “occurrence of any public emergency” or “the interest of public safety” and also permitted grounds for the interception of communication[ix].
The conditions and grounds is not solely sufficient to control infringement of the right to privacy that is why Court in PUCL case laid down “detailed safeguards designed to check arbitrariness in the issuance of telephone tapping orders as follow”[x]:
“It directed that telephone tapping orders will not be issued except under authorization by the Home Secretary of the Central Government or of the State Government. The order should indicate the kind of communication which is to be tapped.
The order passed by the Home Secretary was to cease to have effect at the end of two months from the date of authority, though it could be renewed for six months.
A further direction was also given that original order would have to be reviewed by a committee consisting of Cabinet Secretary, Law Secretary and Secretary for Telephone Communication at the Central level and also a Corresponding Committee at the state level and if it considers that there has been a contravention of Act it will set aside the order and also destroy copies of interception material.”
Phone Tapping is definitely a threat to the right to privacy if conducted in an unauthorised manner/procedure.[xi] The baseline is that only the competent authority may authorize the government agency to intercept, for the purpose specified in sub-section (1) of Section 69 of the Information Technology Act[xii].
1.1.1 Procedure for obtaining orders in remote areas.
Wiretapping is not a problem only in urban areas or in big cities but sometimes it takes place in rural areas as well. We all know the ground reality of such areas, so obtaining prior directions from authority is not practical.
For securing remote areas from such activities interception rules, 2009 however, made an exception as “In such cases it would be permissible to carry out interception after obtaining the orders of the Head or Second Senior most officer of security and law enforcement at the Central level, and an authorized officer not below the rank of Inspector General of Police at the State or Union Territory Level.
The order must be communicated to the competent authority within three days of its issue, and approval must be obtained from the authority within seven working days, failing which the order would lapse”[xiii]. It is mentioned that any kind of interference or interception is only permissible if it is neither arbitrary nor unlawful[xiv].
1.1.2 Exclusive Privilege of the Government regarding phone tapping
The government has interceptive powers to extend to mobile telecommunications. The government’s Department of Telecommunications was the sole licensing authority in India for private operators offering wireless services.
The ministry has vested the authority on the agencies under section 69 of the Information Technology Act, 2000 is similar to the section 5 (2) of the Indian Telegraph Act, 1885 and Rule 4 of the Information Technology Procedure and Safeguards for Interception, Monitoring and Decryption of Information Rules, 2009[xv], the central agencies authorised to carry out telephonic interception include “the Research and Analysis Wing, Intelligence Bureau (IB), Directorate of Revenue Intelligence, Central Bureau of Investigation, National Investigation Agency, Narcotics Control Bureau, Directorate of Enforcement, Directorate of Signals Intelligence, and the Central Board of Direct Taxes”[xvi].
In addition, similar powers have also been provided to the state police forces[xvii].
As stated in section 5 of the Telegraph Act, where the government can order interception of communication and reasonable restrictions can be imposed on the right to privacy[xviii] in the interests of the “sovereignty and integrity of India, the security of the state, friendly relation with foreign states or public order or for preventing incitement to the commission of an offence”[xix].
1.1.3 Information Technology Act, 2000 as a tool to preserve the privacy of an individual.
In today’s digitized world India does have a separate dedicated law to protect right to privacy nonetheless the Information Technology Act, 2000 which provides comprehensive protection of data and prescribes stern punishment for its breach[xx].
Talking about privacy, then IT act is a safeguard in situations where someone violates the right to privacy of an individual by any means, under this act we can’t include or blame the government or central agencies for invasion because the government follows the procedure stated in the PUCL case.
The Information Technology Act, 2000 which is an act of the Indian Parliament provides legal recognition to the transaction done via electronic exchange of data and other electronic means of communication or electronic commerce transactions.
The analysis of the Supreme Court’s decision on various cases brings forward certain areas that cover the protection of information as a part of the right of privacy[xxi]. One of the areas is section 69 which empowers the “Central Government or a State Government or any of its officers specially authorised by the Central Government or the State Government, as the case may be to exercise powers of interception under this section”[xxii], the second area is “the Secretary in the Ministry of Home Affairs has been designated as the competent authority, with respect to the Central Government, to issue directions pertaining to interception, monitoring and decryption”.
Similarly, the respective State Secretaries in charge of Home Departments of the various States and Union Territories are designated as competent authorities to issue directions with respect to the State Government.[xxiii]
1.2 PHONE TAPPING AND RIGHT TO PRIVACY w.r.t INDIAN JUDICIARY
At the time of the drafting of the Indian constitution, there were limited examples of codification of the right to privacy. Common law for instance never mentioned clearly about privacy doctrine.[xxiv] Jude Cooley explains the right to privacy as a synonymous of the right to be let alone[xxv].
The question whether interception of telephone tapping of conversation constitutes a serious invasion of an individual right to privacy was considered by the Apex Court and in its ruling agreed and stated that “wiretaps are a serious invasion of an individual’s privacy”[xxvi]. This question was also answered in the following case laws.
The process related to the right to privacy began in Kharak Singh v. State of U.P.[xxvii], where the court discussed the relationship between surveillance and personal and found that unauthorized intrusion into a person’s home would interfere with his/her right to personal liberty.
The right to privacy here was conceived around the home, and unauthorized intrusions into homes were seen as interference with the right to personal liberty. The court recognized “the right to the people to be secure in their persons, houses, papers, and effects” and declared that their right against unreasonable searches and seizures was not to be violated[xxviii].
Later on, its recognition by the Court expanded the right to privacy beyond the physical realm.[xxix] The PUCL Court further evolved the notion of privacy to include personal communications, holding that “the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as ‘right to privacy’”.[xxx]
Most specific to communication surveillance are the safeguards resulting from People’s Union for Civil Liberties (PUCL) v. Union of India[xxxi].In this case, the Indian Supreme Court declared that “the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as ‘right to privacy’, a telephone conversation is an important facet of a man’s private life”.[xxxii]
The court ruled that telephone tapping would violate Article21 of the Indian Constitution unless it was permitted by the procedure established by law and that it would also violate the right to freedom of speech and expression under Article 19 unless it came within the restrictions permitted by Article19(2).[xxxiii]
Further, the Supreme Court clarified that even where the law clearly defines the situations in which interception may take place, this law must have procedural backing to ensure that the exercise of power is just and reasonable.[xxxiv]
“Article 21 contemplates procedure established by law with regard to deprivation of life or personal liberty. The telephonic conversation of an innocent citizen will be protected by Courts against wrongful or highhanded interference by tapping the conversation.
The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. It must not be understood that the Courts will tolerate safeguards for the protection of the citizen to be imperilled by permitting the police to proceed by unlawful or irregular methods.
In the present case, there is no unlawful or even irregular method in obtaining the tape- recording of the conversation.”[xxxv] Sometimes the right to privacy can be restricted if there is an important countervailing interest which is superior to it and if there is a compelling state interest to be served[xxxvi].
In the current time, India does have sufficient legislation which regulates the interception of communication. The overall outcome of the article is that communications surveillance constitutes an important component in maintaining the sovereignty, integrity, and security of the state and if ordered according to a prescribed procedure then it is not unconstitutional.
Many judgments came up regarding legality of phone tapping in India and they all held that it can be carried out in accordance with the proper guidelines and procedure stated in PUCL case, Telegraph Act, 1885 and most importantly Information Technology Acct, 2000 while interception.
For now, the Indian public has gradually become aware of possible privacy violations that could be caused by technology and they know for prevention and investigation of crimes or in maintaining the sovereignty, integrity, and security of the state or if such information discloses clues and evidence of a crime or scandal, they have to be pursued.
If an interception is done by using unauthorized ways then it will definitely defy right to privacy, it needs to be done only in such situations where guilt is sure and the matter is related to the public interest, sovereignty and security. So, it is not illegal, the proper procedure needs to be followed. Lastly, IT act is available for the protection of our privacy.
[i] John Poindexter (Poindexter was appointed as President Reagan’s national security adviser on 4 December 1985. He is a retired United States naval officer and former Department of Defense official)
[ii] Definition of phone tapping, Cambridge Advanced Learner’s Dictionary & Thesaurus.
[iii] Indian Telegraph Act 1885, Section 1AA
[iv] Indian Telegraph Act 1885, Section 5
[v] Bishop& Matt, An overview of computer security, Addison Wesley 2003.
[vi] Sanjay Parikh, ‘Phone tapping: Violation of constitutional, human rights’, The Economics Times, 26 Apr 2010.
[vii] Constitution of India 1950, Article 21
[viii] Constitution of India,1950, Article 366 (10)
[ix] The five permitted grounds for the issuance of an interception order under Indian Telegraph Act, 1885, Sec5(2) are: (i) Sovereignty and integrity of India; (ii) security of the State; (iii) friendly relations with foreign States; (iv) public order; (v) preventing incitement to the com-mission of an offence.
[x] People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301, ¶35.
[xii] Government of India, Press Information Bureau, (21 DEC 2018 3:23PM) accessed
[xiii]Iyengar Prashant, ‘Privacy and the Information Technology Act in India’ (2011) <https://ssrn.com/abstract=1807575 > accessed 5 April 2011.
[xiv] Article 17, International Covenant on Civil and Political Rights.
[xv] ‘10 central agencies can now snoop on “any” computer they want’, The Economic Times (21 Dec 2018).
[xvi] Ministry of Home Affairs (Cyber and Information Security Division), Part II-Sec. 3(ii).
[xviii] Constitution of India 1950, Article 19(2).
[xix]Jai & Vipul, ‘Phone Tapping Laws: A Comparative Analysis’ (2011) <https://ssrn.com/abstract=2035462> accessed 10 November 2011.
[xx]Kolekar & Yogesh, ‘Protection of Data under Information Technology Law in India’ (2015) <https://ssrn.com/abstract=2599493> accessed 27 April 2015.
[xxi] ‘Radia tapes: Supreme Court to first hear issue of right to privacy’ The Hindu (29 April 2014).
[xxii] Interception Rules, 2009.
[xxiii] Supra note 19.
[xxiv] A.G. Noorani, ‘Right to Privacy’ Economic and Political Weekly (26 Feb 2005) 40(9).
[xxv] Thomas M Cooley, A Treatise on the law of torts (2nd edn, Callaghan and Company 1888) 29.
[xxvi] People’s Union for Civil Liberties (“PUCL”) v. The Union of India & Another, Dec.18, 1996, on Writ Petition (C) No. 256 of 1991.
[xxvii] AIR 1963 SC 1295.
[xxix] Chaitanya Ramachandran, ‘PUCL v. Union of India Revisited: Why India’s Surveillance Law Must Be Redesigned for the Digital Age’ (2014) 7 NUJS L.Rev. , 105.
[xxx] People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301, ¶18.
[xxxi] PUCL, (1997) 1 SCC 301 AIR 1997 SC 568.
[xxxiv] PUCL, (1997) 1 SCC 301, para 30: AIR 1997 SC 568.
[xxxv] R.M. Malkani v. State of Maharashtra, reported in (1973) 1 SCC 471.
[xxxvi] Gobind v. State Of Madhya Pradesh And Anr AIR 1975 SC 1378.