EDITORIAL 1: Law on phone-tapping, and two HC rulings
Context
Last week, the Madras and Delhi High Courts gave different answers on whether the government can tap suspects' phones to gather evidence before a crime is committed.
Phone Tapping
- Phone tapping refers to the interception of telephone conversations by a third party, often by government agencies, to gather information.
- It is a form of surveillance and, if misused, can violate individual privacy and constitutional rights.
The law on tapping
- The government’s powers to intercept communication is laid down in — and circumscribed by — three pieces of legislation.
- The Indian Post Office Act, 1898 allows for the interception of communication through post;
- The Indian Telegraph Act, 1885 is used for tapping voice calls; and
- The Information Technology Act, 2000 governs the interception of WhatsApp messages, emails, etc.
- The 140-year-old Telegraph Act was originally meant for intercepting telegrams, but over the years it has been expanded to include telephonic conversations.
- Section 5(2) of the Act states that both state and central governments can on the occurrence of any public emergency, or in the interest of the public safety authorise interception.
Permissible on narrow grounds
- Given that the right to free speech and the right to privacy are fundamental rights, any encroachment on these rights through surveillance is only permissible on narrow constitutional grounds.
- These grounds — the interest of the sovereignty, and integrity of India; the security of the state; friendly relations with foreign states; public order; or preventing incitement to the commission of an offence — are enumerated as “reasonable restrictions” under Article 19(2) of the Constitution.
- Section 5(2) of the Act also mentions these grounds for authorising interception.
- For actions to be deemed a threat to public emergency, or in the interest of the public safety and allow for interception, they have to necessarily fall into one of the reasonable restrictions.
SC Guidelines in PUCL v. Union of India (1996)
- The Supreme Court linked phone tapping to the right to privacy and laid down safeguards.
- Only the Home Secretary (Central/State) can approve tapping, valid for 2 months and extendable up to 6 months.
- In urgent cases, a Joint Secretary-level officer may authorize it.
- Intercepted material must be destroyed when no longer needed.
- A Review Committee must review all orders within 2 months and can declare them invalid if not in line with Section 5(2), ordering destruction of related material.
Concerns with Phone
- Phone tapping directly infringes the Right to Privacy, which is part of Article 21 of the Constitution as held in the K.S. Puttaswamy (2017) judgment.
- The terms “public emergency” and “public safety” in Section 5(2) of the Telegraph Act, 1885 are not clearly defined, making them prone to subjective interpretation and misuse.
- Though PUCL guidelines exist, implementation is inconsistent, orders are often issued without urgency or public interest justification.
- India lacks a comprehensive data protection framework, though the Digital Personal Data Protection Act, 2023 has been introduced.
Conclusion
Phone tapping is allowed under law but must meet strict constitutional safeguards. Vague terms and weak oversight risk misuse, highlighting the need for clearer rules and stronger privacy protections.