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PUCL Bulletin, February 2006

Telephone-tapping an invasion of individual’s privacy

-- By Rajindar Sachar

The current slanging match between political parties arising from telephone-tapping of Amar Singh, General Secretary of S.P. has again highlighted the menace of unauthorized telephone tapping. This evil was highlighted in the press in 1991 showing hundreds of telephone tapping of top politicians (including Chandra Shekhar, former Prime Minister) and journalists. In India telephone tapping is provided under Section 5 of Indian Telegraph Act, 1885. But it could not survive after the Constitution and the Second Press Commission suggested some safeguards to be provided in the Act, but legislature did not act.
     
It was in this background that Peoples Union for Civil Liberties (PUCL) took the matter to the Supreme Court, which agreed that “Telephone-tapping is a serious invasion of an individual’s privacy, and increasingly susceptible to abuse.” More importantly it held right to privacy is a part of the right to “life” and “personal liberty” enshrined under Article 21 of the Constitution and Right to freedom of speech and expression is guaranteed also under Article 19 (1)(a) of the Constitution and when a person is talking on telephone, he is exercising this fundamental rights. This Court laid down that officials could pass an order of interception only after recording its satisfaction that it is necessary or expedient so to do in the interest of (i) sovereignty and integrity of India, (ii) the security of the State, (iii) friendly relations with foreign States, (iv) public order or (v) for preventing incitement to the commission of an offence. It is only when any of the five situations mentioned above to the satisfaction of the competent authority require that the said authority may pass the order for interception of messages by recording reasons in writing for doing so.

Thus the Court emphasized that the security of ones privacy against arbitrary intrusion by the police is basic to a free society and enforceable against the state through the Courts. Lamenting the present position and noticing that though the Act was enacted in the year 1885, and the power to make rules under Section 7 of the Act has been there for over a century but the Central Government has not thought it proper to frame the necessary rules despite severe criticism of the manner in which the power under Section 5 (2) has been exercised. Though conceding that it is entirely for the Central Government to make rules on the subject but till the time it is done the right to privacy of an individual has to be safeguarded, against arbitrariness in the exercise of power under Act.
     
The Court therefore gave certain directions under which alone telephone tapping could be done. It directed that telephone tapping order will not be issued except under authorization by 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 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. In the background of Constitutional violation one is amazed at the indifference and levity being shown in political circles. The Congress can legitimately object to Amar Singh blaming Mrs. Sonia Gandhi without substantiating it. But the response by its spokes person should have been disdainful silence rather than the Babalog immature and supercilious reaction by a query as to why Amar Singh was feeling jittery about it and describing it as “Operation Majnu”. What if Amar Singh was to get nasty by calling this reaction as “Operation Laila”, such attitudes can only degrade the atmosphere of politics.
     
The matter has assumed All India implication with Chief Minister of Tamil Nadu also complaining of her telephone being tapped. To this, complaints have been added by Mr. Gowda, the former Prime Minister and Mr. Chandrababu Naidu, former Chief Minister of Andhra Pradesh openly alleging that they have reason to believe that their telephones are being tapped. These are very serious allegations made by the responsible persons. Allegations made by such two high functionaries, representing a broad spectrum of political mass cannot be brushed aside by Central Government by taking cover on the plea that CBI is holding an inquiry. This is not acceptable.
     
I feel that public can only be satisfied either by judicial enquiry by a Supreme Court judge, or better still (which I would personally advocate) committee of Members of Parliament appointed jointly by chairperson of Rajya Sabha and the Speaker of Lok Sabha. Each party has admittedly a stake in truth coming out. The formation of the Committee should be immediate to prevent further muddying of political debate and heightening of political temper. 
     
This situation is hardly conducive to rational politics and the country needs to resolve it immediately. Prime Minister’s restrained response gives hope that all parties meet would immediately sit down and diffuse the situation. I say this because there are different political parties in power in various states. This game of telephone tapping can be played by all political parties and they should sort this out so that there is no scope left for opportunist and vested groups to play one political party against another.
     
We, in this context need to remind ourselves that unauthorized wire tapping of his political opponent raised such an uproar which led to the ultimate resignation of President Nixon. I believe public indignation here is similarly as strong and widespread.
     
It is regrettable that though this judgment was passed in 1997 and we have had since then governments of different political parties, yet no one has cared to frame specific rules for this purpose even when Supreme Court had expressed its unhappiness at this lacuna. My own suggestion is that instead of getting authorization from officials, the same should be obtained (of course ex parte) from a high judicial officer, nominated by the high Court, on line similar to as in USA.
     
Is it fair that notwithstanding this gross lapse by legislature, it should still blame the judiciary for dealing with matters belonging to legislature? What other course for the judiciary, when Constitution mandates it to be protector of fundamental rights of citizens.

The politicians possibly when in power feel comfortable about tapping telephones of their opponents but it is ironically forgotten that because of electoral fortune it may be a victim in future.

     

People's Union for Civil Liberties, 81 Sahayoga Apartmrnts, Mayur Vihar I, Delhi 110091, India. Phone (91) 11 2275 0014