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What laws govern tapping a phone; what are the checks in place?

Context

A lady IPS officer is facing an FIR in Mumbai for allegedly tapping the phones of a Rajya Sabha MP in Maharashtra.

Relevance

GS-II: Important Aspects of Governance, Transparency and Accountability, E-governance- applications, models, successes, limitations, and potential; Citizens Charters, Transparency & Accountability and institutional and other measures.

Dimensions of the Article

  • How are phones tapped in India?
  • Who can tap phones?
  • What laws govern this?
  • Who authorizes phone tapping?
  • What happens in an emergency?
  • What are the checks against misuse?
  • What if misuse occurs?
  • Is the process transparent?

How are phones tapped in India?

  • In the era of fixed-line phones, mechanical exchanges would link circuits together to route the audio signal from the call.
  • When exchanges went digital, tapping was done through a computer.
  • Today, when most conversations happen through mobile phones, authorities make a request to the service provider.
  • The service provider is bound by law to record the conversations on the given number and provide these in real time through a connected computer.

Who can tap phones?

  • The State Police have the powers to tap phones.
  • Ten Central agencies are authorized to do so: Intelligence Bureau, CBI, Enforcement Directorate, Narcotics Control Bureau, Central Board of Direct Taxes, Directorate of Revenue Intelligence, National Investigation Agency, R&AW, Directorate of Signal Intelligence, and the Delhi Police Commissioner.
  • Tapping by any other agency would be considered illegal.

What laws govern this?

  • Phone tapping in India is governed by The Indian Telegraph Act, 1885.
  • Section 5(2) says that “on the occurrence of any public emergency, or in the interest of the public safety”, phone tapping can be done by the Centre or states.
  • It can be done in the interest of “public safety”, “sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence”.
  • There is an exception for the press: “press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section”.
  • The competent authority must record reasons for tapping in writing.

Who authorizes phone tapping?

  • Rule 419A of the Indian Telegraph (Amendment) Rules, 2007, says phone tapping orders “shall not be issued except by an order made by the Secretary to the GoI in the Ministry of Home Affairs.
  • It can be authorised by the Secretary to the State Government in-charge of the Home Department in the case of a State Government.
  • The order has to be conveyed to the service provider in writing; only then can the tapping begin.

What happens in an emergency?

  • In unavoidable circumstances, such an order may be issued by an officer, not below the rank of a Joint Secretary to the GoI, who has been authorized by the Union Home Secretary, or the State Home Secretary.
  • In remote areas or for operational reasons, if it is not feasible to get prior directions, a call can be intercepted with the prior approval of the head or the second senior-most officer of the authorized law enforcement agency at the central level, and by authorized officers, not below the rank of Inspector General of Police, at the state level.
  • The order has to be communicated within three days to the competent authority , who has to approve or disapprove it within seven working days.
  • If the confirmation from the competent authority is not received within the stipulated seven days, such interception shall cease.
  • For example, during the 26/11 attacks in Mumbai, the authorities had no time to follow the complete procedure, and so a mail was sent to the service provider by the Intelligence Bureau.

What are the checks against misuse?

  • The law is clear that interception must be ordered only if there is no other way of getting the information.
  • The directions for interception remain in force, unless revoked earlier, for a period not exceeding 60 days.
  • They may be renewed, but not beyond a total of 180 days.
  • Any order issued by the competent authority has to contain reasons, and a copy is to be forwarded to a review committee within seven working days.
  • At the Centre, the committee is headed by the Cabinet Secretary with the Law and Telecom Secretaries as members.
  • In states, it is headed by the Chief Secretary with the Law and Home Secretaries as members.
  • The committee is expected to meet at least once in two months to review all interception requests.

What if misuse occurs?

  • When the Review Committee is of the opinion that the directions are not in accordance with the provisions referred to above it may set aside the directions.
  • It may order for destruction of the copies of the intercepted message or class of messages.
  • Under the rules, records pertaining to such directions shall be destroyed every six months unless these are, or are likely to be, required for functional requirements.
  • Service providers too are required to destroy records pertaining to directions for interception within two months of discontinuance of the interception.

Is the process transparent?

  • There are multiple provisions aimed at keeping the process transparent.
  • Directions for interception are to specify the name and designation of the officer or the authority to whom the intercepted call is to be disclosed.
  • The directions have to be conveyed to designated officers of the service providers in writing by an officer not below the rank of SP or Additional SP or equivalent.
  • The officer is expected to maintain records with details of the intercepted call.
  • The designated nodal officers of the service providers are supposed to issue acknowledgment letters to the security/law enforcement agency within two hours on receipt of an intimation.
  • They are to forward every 15 days a list of interception authorizations received to the nodal officers of the security and law enforcement agencies for confirmation of authenticity.
  • It makes the service providers responsible for actions of their employees.
  • In case of unauthorized interception, the service provider may be fined or even lose its license.

Source – The Indian Express

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June 2022
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