Inaugurating an India Corporate Week at New Delhi on December 14,2010, the Prime Minister Dr. Manmohan Singh is reported to have stated as follows:"I am aware of the nervousness in the corporate sector arising out of the powers conferred upon the government authorities to tap the phones for protecting national security and preventing tax evasion and money laundering. While these powers are needed, they have to be exercised with utmost care and under well defined rules, procedures and mechanism so that they are not misused. Legal mechanisms already in place should be stringent for more effective enforcement. I am asking the Cabinet Secretary to look into these issues and report back to the Cabinet within the next month."
2.The Prime Minister’s observations came in the wake of concerns recently expressed by some corporate personalities such as Ratan Tata and Deepakh Parikh, the Chairman of the mortgage giant HDFC, over the uncontrolled leakage to certain journals of the supposedly clandestine recordings and their transcripts of the telephone conversations of Ms.Niira Radia, a lobbyist reportedly working for the Tatas and one other corporate house, with people in different walks of life.
3. The episode has led to three questions---firstly, why was her telephone tapped ?; secondly, was it done in accordance with law? ; and, thirdly, how did the results of the tapping become available to some journals in a manner that sought to damage the hard-earned reputation of some leading personalities? In a court affidavit filed last week, the Government has reportedly said it had begun tapping Ms Radia's phone after an allegation that she was spying for foreign intelligence and to make enquiries regarding her business network in order to see whether she had violated laws relating to taxation.
4. The US Congress enacted provisions in the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C.A. § 2510 et seq.) that established procedures for wiretapping. All wiretaps were banned except those approved by a court. Wiretaps were legally permissible for a designated list of offenses, if a court approved. A wiretap may last a maximum of 30 days and notice must be provided to the subject of the search within 90 days of any application or a successful interception. In 1986, Congress extended wiretapping protection to electronic mail in the Electronic Communications Privacy Act (ECPA), 8 U.S.C.A. § 2701 et seq. The law, also known as the Wiretap Act, makes it illegal to tap into private E-Mail. ( My comment: This has been taken from http://legal-dictionary.thefreedictionary.com/Telephone+tapping).
5. There were similar controversies in India in the past too. In 1991, the Indian media had reported that hundreds of telephones of senior political leaders and journalists, including Chandra Sekhar, former Prime Minister, had been tapped unauthorisedly. In 1996, there was a controversy regarding the alleged tapping of the telephone conversation of Amar Singh, the leader of the Samajwadi Party. Some months ago, one of the journals had alleged that the National Technical Research Organisation (NTRO), India’s equivalent of the National Security Agency (NSA) of the US, had equipment and capability that enabled it to indulge in extensive telephone tapping.
6.Amongst those to strongly protest against such illegal telephone tapping and express concerns over methods akin to those employed by former US President Richard Nixon was Shri L.K.Advani, former Deputy Prime Minister. In a posting on April 25,2010, in his blog, he wrote as follows:
“In 1977, President Carter asked Congress to approve a plan which would make it impossible for the executive to intrude upon a citizen’s privacy without judicial authorization. This plan, Carter contended, would successfully resolve the “inherent conflict” between national security and the basic right to privacy of a citizen. Subsequently legislation has been enacted wherein all security authorities, including the FBI, have been obligated to seek prior judicial approval for any wire-taps.
”In Britain, there is no law governing wire-tapping. But several parliamentary committees have gone into the question in depth. In 1957, a three-man committee of Privy Councillors headed by Norman Birkett was set up to inquire into the “interception of communications”.
”The Birkett committee described wire-tapping, or for that matter, all forms of intercepting private communications as “inherently objectionable”, but felt that the practice may be permitted within certain clearly defined areas, and with appropriate safeguards. It laid down that wire-tapping may be allowed to the police and security agencies only for the purpose of crime investigation or to check subversive or espionage activity. Even for this field, the committee laid down rigorous guidelines. Till date, no one in Britain has ever accused their government of abusing these powers.
”What is really required in this context is to set up a parliamentary committee on the lines of the Birkett committee to examine all aspects of the problem, scrap the outdated Indian Telegraph Act of 1885 and replace it by a new legislation which forbids invasion of an ordinary citizen’s privacy, but which formally recognizes the right of the State to use the latest IT devices of interception to deal only with crime, subversion and espionage. The law must provide statutory safeguards which make it impossible for Government to abuse its powers against political activists and pressmen.”
7. Shri Advani, who was outraged by the previous instances of tapping, has not been outraged by the present instance probably because it has provided him with ammunition that he could use against the Government of Manmohan Singh. His stand seems to be---- tapping is OK if it embarrasses my opponents, but is illegal if it embarrasses me. That seems to be his line. On December 14,2010, he has attacked the Prime Minister for asking the Cabinet Secretary to look into the issue of telephone tapping, saying he seemed to be more concerned about the leakage than the credibility of his Government on the issue of corruption. "He (Prime Minister Manomhan Singh) is worried about that (leakage). What is the aspect of concern? Common man's concern is about the credibility of the Government. There should be concern about this but that is not there."
8. In an article of February 2006, in the PUCL Bulletin under the title “Telephone-tapping an invasion of individual’s privacy”, Shri Rajindar Sachar wrote, inter alia, as follows:
”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.”
9. From his article, it is evident that the position laid down by the Supreme Court is as follows: Firstly, tapping can be authorized by the Home Secretary only in one of five specified situations; Secondly, a tapping could normally last for two months, but could be extended to about six months. There cannot be indefinite tapping nor can there be tapping off and on. Thirdly, the initial authorization of the Home Secretary has to be reviewed by a committee consisting of the Cabinet Secretary, the Law Secretary and the Telecom Secretary. If the initial order was found to be incorrect, it would be set aside and all intercepts under the incorrect order would be ordered to be destroyed.
10. The following questions arise from the tapping of the telephone conversations of Radia:
QUESTION No.1: When was the initial authorization by the Home Secretary to tap her telephone given?
QUESTION 2: What was its duration?
QUESTION 3: Did the tapping stop after the specified duration had ended or was it continued after the duration had expired? Who authorized the extension of the duration? Was a fresh complaint against her filed while seeking the extension giving a summary of the evidence collected against her, which called for a further extension?
QUESTION 4: Was a review of the initial order made by a committee headed by the Cabinet Secretary? Did it conclude that the initial authorisation and the subsequent interceptions were in order and in accordance with the ruling of the Supreme Court? If not, did it order the recordings and the transcripts to be destroyed?
11. These questions need to be gone into in detail during the enquiry ordered by the Prime Minister. One gets an impression that the entire case has been handled by the Government as well as the opposition and even the media with a certain levity to use an expression of Shri Sachar. This does not bode well for any exercise to prevent the misuse of the Government’s powers of interception of the communications of its citizens.
12. In their glee over the embarrassment caused to the Government and certain others by the unexplained leakage of the intercepts, the importance of ensuring that everything was done in accordance with the law has been overlooked. The right questions have not been asked. ( 15-12-10)
( The writer is Additional Secretary (retd), Cabinet Secretariat, Govt. of India, New Delhi, and, presently, Director, Institute For Topical Studies, Chennai. E-mail: email@example.com )