Introduction:
In today’s governance, one of the primary debates is that pertaining to the balance of surveillance measures of the government and an individual’s right to privacy. To what extent this surveillance is in the interest of the public is a matter often prodded upon. In India, there are at least two known surveillance systems existing, “Netra” that scrutinizes electronic communication looking for alert words like “kill, bomb, blast” and the Central Monitoring System (CMS) which undertakes the collection of data pertaining to communications and telephonic conversations.[1]
The statutory backing of these is however questionable and infringes the basic fundamental rights of the persons subject to the surveillance. One such famously infamous surveillance practice of phone tapping refers to “monitoring or secretly listening to any telephonic conversations or internet communication between two persons by a third party”.[2] This mode of surveillance is widely recognized as a necessary evil but is subject to numerous restrictions, mainly because of concerns of privacy and personal liberty, which is a fundamental right under 21 of the Indian Constitution.[3]
Phone Tapping or Wiretapping
Based on the kind of communication tapping and the parties involved, the legality of the act differs and is dependent on these factors. The primary consideration is that of consent. If one of the parties of the conversation consent to phone tapping by a third party, the tapping is legal and cannot be questioned.[4] However, where there is the absence of consent, other considerations such as the third party, and kind of tapping becomes relevant. Firstly, there is tapping by private individuals and by the sovereign, the government, or its bodies.
Phone tapping by private individuals or organizations is, without consent not legal, and amounts to a breach of privacy of the individuals subject to it.[5] Phone tapping by the government can in some instances be legal. There are two types, passive wiretapping where the traffic or communication is only monitored or recorded, and active wiretapping involves unauthorized access to all data and altering of the communication.[6] The former is legal but the latter form of wiretapping is illegal in many countries, including India.[7] Privacy is not absolute and is subject to the procedure established by law,[8] therefore the legality of passive wiretapping is subject to certain restrictions.
Right to Privacy and Phone Tapping
The path of recognition of the right to privacy by the Indian judiciary was a long route with the doctrine developing through numerous judgments over the decades. The right to privacy was addressed in Kharak Singh[9] where the regulations of UP police of constant surveillance of “history sheeters” on the grounds that they were violative of the personal liberty of the individuals. The court interpreted that the act of searching the premises at any time of the night amounts to a violation of the right to personal liberty and since these regulations do not constitute as law under article 13, the defense of procedure established by law cannot be availed and held the regulations unconstitutional.
Overruling the 1954 judgment[10] the Supreme Court recognized privacy as a constitutional right but declined that it as a fundamental right guaranteed under Part III. With regards to domiciliary visits, the stance, however, changed again in 1975 where it was upheld since the regulation was statutory under the Police Act.[11] However, the court held, w.r.t privacy that the right can be implied from article 21.[12]
A landmark judgment, on both right to privacy and the legality of phone tapping, is the PUCL v. Union of India[13], where privacy was recognized as beyond physical privacy to include communications. The constitutional validity of Section 5(2), which allowed the government to tap conversation in the interest of public and public safety concerns. The primary argument against the law was that the words “public emergency” and “public health” lack an objective definition, allowing the scope of arbitrariness to its employment. Attempting to create a sense of balance between surveillance and privacy, the Apex court held that interception may be resorted to only when necessary and for a conversation to be intercepted, the communication and the persons alongside their addresses must be mentioned before such interception.[14]
The court also established that for legislation to breach the right of privacy, the existence of compelling state interest is a prerequisite. Privacy as a decisive fundamental right was established in the Puttaswamy judgment[15] but recognized that the right is not absolute and is subject to “procedure established by law”. Therefore, the legality of phone tapping in India is subject to legislative restrictions and safeguards.[16]
Legal Provisions governing Phone Tapping in India
Under the Constitution, Entry 31 of List I (Art. 246) empowers the central government to regulate laws on posts, telegraphs, and other forms of communication. Phone tapping is governed by the Indian Telegraph Act 1885 and the Information Technology Act 2000. Section 5 of the Telegraph Act allows lawful interception or tapping by the government and reasonable restriction to privacy on two grounds, “public health” and “public emergency”. Further, sub-clause 2 states that it may be done only in the interest of “security of the state, friendly relations with foreign nations, security and integrity of the state, public order or for preventing the commission of any offense.”
The Indian surveillance programs such as Netra and CMS gain their constitutional validity from this provision of the act. While the court held that to exercise this power in the interest of public emergency, there must be a notification issued of emergency declared in the state or center,[17] the scope of public safety is somewhat vague but the court had, in the PUCL judgment[18] attempted to narrow the scope down to a state of freedom from any danger to the public and this danger must be apparent to any prudent person.[19] The existence of either a public emergency or ensuring public safety is held as the sine qua non of this provision.[20]
Section 25 of the act[21] renders any interception by individuals without consent and contravention of Section 5 as illegal and penalizes the same. What is important to note, however, is that this section in no way facilitates mass surveillance and is subject to only “persons or any class of persons”.
The Information Technology Act 2000 which legitimized communication through electronic mode and electronic transactions entails comprehensive protection of privacy and data online and subscribes to heavy penalization for any breach of privacy.[22] Regulating interception done through computer or online, it grants the power to any state or central government to authorize interception or monitoring any conversation done through any computer resources.[23]
The grounds, however, are restrictive and similar to that of the Telegraph act.[24] Further substantiating a stringent regime are the Indian telegraphic rules 1951 and the Information Technology rules 2009.[25] The former was amended in 2007 to include Rule 419-A which attempts to regulate phone tapping restricting the personnel eligible to authorize tapping. Rule 4 of the 2009 rules enables the government to authorize any of its agencies, in consonance with Section 69 of the IT act to encrypt, store, or transmit any communication for surveillance. It also places a limit by allowing information to be stored for no more than 60 days, subject to renewal. These rules also place safeguards in an attempt to prevent misuse of the surveillance provision or tamper with the data collected.
While mass surveillance is otherwise considered no legal, individual surveillance is very much legal subject to restriction. The tricky part is, however, when the surveillance concerns national security interests. This is more common in the border regions or in Naxal prone regions where the surveillance is much more stringent and telephone tapping is more prevalently used. Even intelligence agencies like the RAW[26] are given the levee to prescribe to phone tapping and while this may be infringing the individual’s privacy, it is justified on the grounds of the larger public good, or in the interest of public safety. Phone tapping is a notorious practice and while privacy is recognized as an integral part of the right to life, the Indian approach towards surveillance or prescribing to phone tapping has not seen to have circumscribed, considering the IT act allows wiretapping beyond national security interests to even investigate or to prevent offenses from being committed.
Conclusion
In case of unlawful infringement of privacy, the Indian Constitution provides for a remedy to the right breached and the aggrieved party can approach the National Human Right Committee to lodge a complaint to take action against any such unlawful interception. In the interest of upholding individual privacy, while the conversation may be recorded by due process of law, it may not be used for any purposes of the public hearing or entrust to any third party.[27]
Despite popular belief to the contrary, privacy and surveillance are very much capable of co-existence, pertaining to the circumstances. Indian legal system, while recognizing the importance of privacy, also recognizes the necessary prevalence of public interest over individual rights. Surveillance techniques such as wiretapping have now become necessary evils in order to ensure the safety and security of the sovereign and its subjects. There is, however, no blanket consent for the government agencies to use the interception in any way they like, the use or recording is heavily restricted; at least that is what the law attempts to do.
References:
[1] Gautam Bhatia, State Surveillance and The Right to Privacy in India: A Constitutional Biography, 26 NLSI Rev. 127, 127 (2014).
[2] Arushi Kulshrethra, Law on Phone Tapping in India in Light on Public Safety, Lawctopus (Oct. 6, 2020), https://www.lawctopus.com/academike/law-on-phone-tapping-in-india-in-light-on-public-safety/.
[3] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
[4] R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471.
[5] Rayala M. Bhuvaneshwari v. Nagaphanender Rayala, AIR 2008 AP 98.
[6] Supra note 2.
[7] Indian Telegraph Act, Act No. 188513, § 25 (1885).
[8] Indian Constitution, Art. 21.
[9] Kharak Singh v. State of U.P., AIR 1963 SC 1295.
[10] M.P. Sharma v. Satish Chandra, AIR 1954 SC 300.
[11] Gobind v. State of M.P., (1975) 2 SCC 148.
[12] Id.
[13] (1997) 1 SCC 301.
[14] Supra note 1 at 143.
[15] Supra note 3.
[16] Kakoli Nath, Legality of Phone Tapping in India, Finology Blog (Oct. 6, 2020), https://blog.finology.in/recent-updates/legality-of-phone-tapping-india#:~:text=The%20right%20to%20privacy%20definitely,the%20procedure%20established%20by%20law.&text=So%2C%20phone%20tapping%20in%20India,the%20Indian%20Telegraph%20Act%201885.
[17] Supra note 13 at 316.
[18] Supra note 13 at 303.
[19] Supra note 1 at 142.
[20] K.L.D. Nagasree v. Govt. of India & Ors., (2007) 1 AP LJ 1.
[21] Supra note 7.
[22] Yogesh Kolekar, Protection of Data under Information Technology Law in India, SSRN (May 15, 2015), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2599493.
[23] Information Technology Act, Act No. 20021, § 69 (2000).
[24] Indian Telegraph Act, Act No.188513, § 5(2) (1885).
[25] Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, available at https://cis-india.org/internet-governance/resources/it-procedure-and-safeguards-for-interception-monitoring-and-decryption-of-information-rules-2009.
[26] Karthik Iyer, Here Are 10 Indian Govt. Agencies That Can Tap Any Of Our Phones & We Wonder If We’re Really Safe, MENSXP (Nov. 20, 2019, 18:04 IST), https://www.mensxp.com/technology/news/70397-here-are-10-indian-govt-agencies-that-can-tap-any-of-our-phones-we-wonder-if-we-re-really-safe.html.
[27] Vijay Pal Dalmia, Phone Tapping and Recording of Telephonic Conversations- Right to Privacy and Indian Law, Mondaq (Jun. 4, 2018), https://www.mondaq.com/india/privacy-protection/707096/phone-tapping-and-recording-of-telephonic-conversations-right-to-privacy-and-indian-law.
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