Phone tapping and the law in India

Lata Jain

The KCR-CBN (K.Chandrasekhar Rao CM Telanagana and Chandra Babu Naidu CM Andhra Pradesh) tapping controversy is just one of many kinds of abuse that surveillance systems enable. If a relatively primitive surveillance system can be misused so flagrantly despite safeguards that the government claims are adequate for the other intelligence departments and agencies to misuse this power.

No time in the past the need for a valid lawful interception law in India in general and phone tapping law in particular is felt so much. Indian executive is blatantly violating the phone tapping requirements in India without any judicial scrutiny. The recent allegation and bitter fight between the two newly formed States of Telanagana and residuary Andhra are an example to this.

This article discusses the slow evolution of the right to privacy in India, highlighting the context and manner in which it is protected. It then discusses international jurisprudence to demonstrate how the right to privacy might be protected more effectively.

Even there is no constitutionally sound phone tapping law in India. India urgently needs a phone tapping law that is in conformity with present times and constitutional philosophy.

In 1990s , mobile phones were based on analogue transmission systems and hence were fairly easy to intercept by any scanning all-band receiver. However, present-day cell phones work on digital transmission systems and the digital encoding and compression prevents normal radio receivers intercepting the signals. However, the government can tap phones with the cooperation of the phone company.

But soon, a technical glitch in mobile telephony was discovered, and now, a phone can be intercepted even without seeking the permission of the service provider. Every handset has to authenticate itself to the network, while the network doesn’t have to get itself authenticated by a handset.

In India, telephone tapping has to be approved by a designated authority. The Central or State government is empowered to order interception of messages as per Section 5 of the Indian Telegraphic Act, 1885. There is also a provision for a review committee to supervise the order.

The Regulation of Investigatory Powers Act, 2000, in general prohibits the interception of communications by a third party, with exceptions related to government agencies.

For the Central intelligence and investigation agencies, the designated authority is the Union Home Secretary, while for the States it is the State Home Secretary. The permission for interception or tapping is given for an initial period of 60 days and subsequently comes up for renewal before the designated authority.

Recently introduced Network traffic Analysis system” — will intercept and examine communication over the Internet for keywords like “attack,” “bomb,” “blast” or “kill.” While phone tapping and the CMS monitor specific targets, Netra is vast and indiscriminate. It appears to be the Indian government’s first attempt at mass surveillance rather than surveillance of predetermined targets. It will scan tweets, status updates, emails, chat transcripts and even voice traffic over the Internet (including from platforms like Skype and Google Talk) in addition to scanning blogs and more public parts of the Internet. A senior officer in the intelligence department says on mass-surveillance “they were never about terrorism: they’re about economic spying, social control, and diplomatic manipulation. They’re about power.”

There have been several controversies over phone tapping for political reasons. President Zail Singh accused Congress government of bugging Rashtrapati Bhavan telephone when Rajiv Gandhi was the Prime Minister. Similarly, Ramakrishna Hegde was forced to resign as CM of Karnataka in 1988 over phone-tapping allegations.

India has no requirements of transparency whether in the form of disclosing the quantum of interception taking place each year, or in the form of subsequent notification to people whose communication was intercepted. It does not even have external oversight in the form of an independent regulatory body or the judiciary to ensure that no abuse of surveillance systems takes place. Given this kind of flaw in the system the KCR-CBN fight is just the beginning and this practice surely does not go well with a democracy.

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