The Case of ‘Phone Tapping’ & Rules in India

Recent politicization of the national security and instances to interception along with infringements cases and spyware cases like Pegasus violating the free speech and privacy.

• These recent controversial instances at the central level which makes it important to understand the rules related to phone tapping and its extent in India.

• From the colonial era India has seen several instances of interception.
• During the colonial period, telegraph act was introduced to check the spread to congress and its ideologies among the people, which further could help British to take down any kind of revolt activities.
  • The reasonable grounds mention under the telegraph act of 1885 under which interception can be initiated became the reasonable grounds of restrictions for free speech
• Post-independence due to technological revolution the means of communication has widen and government has also introduced new laws to control the spread of messages in public interest.

History of Phone tapping law

• For the initiation of the Revolt of 1857, post card and post messages had played a central role.
  • Various people of society had used the means to post card and post messages for sending the messages.
  • Later, in the year 1885, India received an organized political stage for further movements towards independence.
• In order to check the spread of congress and nationalist ideologies British Government introduced a new set of laws to control and intercept the messages of various leaders.
• The major objective behind this law was to suppress the nationalist ideology and provide a cushion for themselves against any national movement.

Indian Telegraph Act, 1885

• On the occurrence of any emergencies or in the interest of public safety phone can be tapped by both Centre and state.
• A reasonable ground should be there for infringement of privacy. The reasonable grounds mention in the act are:
  • Public safety
  • Sovereignty and
  • Integrity of India
  • Security of the state
  • Friendly relations with other nation
• Apart from these provisions this colonial law also provides immunity to the press and journalists. Press and journalists got immune from these actions against the privacy by the government.

• Authorization: Indian Telegraph (Amendment) Rules have set the authority who can direct the action.
  • Rules of 2007 gave the power to the Secretary to the Government of India in the Home Ministry and Secretary to the State in Home Affairs.
  • The order has to be conveyed to the service provider in written manner then tapping can be initiated.
• Emergency Situation: During emergency situation orders may be passed by the officer not below the rank of Joint Secretary to Government of India appointed by Central or state Home Secretary.
  • In case of remote areas a head or second senior most official of any authorized law enforcement agency at the central level, not below the rank of Inspector general can direct the order for tapping of phone. In these situations of emergency the order needs to be communicated to the competent authority within three days of passing the order.
  • The competent authority has to approve or disapprove the direction within seven working days or else the tapping must be ceased.

• The answer to this question is yes. Government has other laws like Information Technology Act, 2000 and Disaster Management Act.
• Other means of communication like online messages, emails and blogs can be restricted by the government by using these acts. Under different circumstances government uses different act to restrict the spreading of messages for the interest of the people.

• Breach of Privacy: Tapping of phones is one of the most severe infringements to the privacy of any individual. Article 21 guarantees Right to Life with proper and right to privacy for every individual.
• Freedom of Speech and Expression: Phone tapping and other restrictions on messages and posts creates a hindrance to the freedom to speech guaranteed under Article 19 of the Constitution of India.
  • Privacy and freedom of speech and expression are two most important pillars of democracy. In order to protect democracy a country should ensure privacy to every individual and freedom of speech and expression of the people.

• The law itself provides that interception should not be initiated unless and until there is no other means to obtain information.
• Number of days the order of interception remains in force is 60 days. After the completion of 60 days the orders have to be renewed and continue can be continued for a period of 180days.
• The orders from the competent authority should contain reasons and that should be forwarded to a review committee headed by Cabinet Secretary and law and telecom secretary as member at Centre and Chief Secretary as committee head and law and home secretary at the state level within 7 working days.
• Review committee is expected to meet every two months to review all the interception and if review committee is not in the opinion to have proportional reasons behind any interception then the records are deleted at immediate effect.
• Others records need to be deleted within 6 months of interception unless it is necessary for future reference.

The process of interception began with the colonial rule to suppress the national movement and have a check on it. From then till now interception may have changed the dimension and widened the methods but the importance of interception regarding national security remained in a central position. During colonial period and the current period are very much different on political grounds of the country, democracy has been established after the independence and that democracy should be protected by protect privacy and free speech for every individual.