Rules for Tapping a Phone

• Shiv Sena leader has recently claimed that the Centre is protecting IPS officer Rashmi Shukla, now posted with the CRPF.
• Shukla is facing an FIR in Mumbai and is being probed for allegedly tapping the phones of Rajya Sabha MP Raut and NCP leader Eknath Khadse in 2019, when she was heading the State Intelligence Department in Maharashtra.*

How are phones tapped in India?

• In 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.
• In mobile phone era, authorities request the service provider, which 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?

• States - police have the powers to tap phones.
• Centre - 10 agencies are authorised including:

• Tapping by any other agency would be considered illegal.

What laws govern this?

• Indian Telegraph Act, 1885
  • Section 5(2) - “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 if they are satisfied it is necessary 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”.
  • 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 authorises phone tapping?

• Rule 419A of the Indian Telegraph (Amendment) Rules, 2007 - phone tapping orders are issued by an order made by:
  • Centre- Secretary to the Government of India in the Ministry of Home Affairs
  • State: Secretary to the State Government in-charge of the Home Department.
• 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, the order may be issued by an officer, not below the rank of a Joint Secretary to the Government of India (authorised by the Union Home Secretary, or the State Home Secretary).
• Remote areas/ operational reasons - not feasible to get prior directions
  • Centre- A call can be intercepted with the prior approval of the head or the second senior-most officer of the authorised central law enforcement agency
  • State- by authorised officers, not below the rank of Inspector General of Police.
  • Order to be communicated within 3 days to competent authority, who has to approve or disapprove it ≤ 7 working days.
• Eg. 26/11 attacks in Mumbai - authorities had no time to follow the complete procedure, and so a mail was sent to the service provider by the Intelligence Bureau, and phones of terrorists were put under surveillance.

What are the checks against misuse?

• Sub-rule (1) of Indian Telegraph Act, 1885:
  • Officer shall consider the possibility of acquiring the necessary information by other means
  • Directions shall be issued only when it is not possible to acquire the information by any other reasonable means.
• Directions for interception remain in force for a period of ≤ 60 days.
  • May be renewed, but not beyond 180 days.
• Any order issued by the competent authority has to contain reasons, and a copy is to be forwarded to a review committee ≤ 7 working days.
• Centre - committee is headed by the Cabinet Secretary with the Law and Telecom Secretaries as members.
  • Expected to meet at least once in two months to review all interception requests.
  • If it opines that the directions are not in accordance with the above provisions, it may set aside the directions and orders for destruction of the copies of the intercepted message or class of messages.

Is 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, and also specify that the use of intercepted call shall be subject to provisions of Section 5(2) of the Telegraph Act.
• 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 person whose message has been intercepted, the authority to whom the intercepted calls have been disclosed, date of destruction of copies etc.
• 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 a list of interception authorisations received to the nodal officers of the security and law enforcement agencies for confirmation of authenticity every 15 days.
• It makes the service providers responsible for actions of their employees. In case of unauthorised interception, the service provider may be fined or even lose its licence.

Exam Track

Prelims Takeaway

• Various central Investigation companies
• TRAI

Mains Track

Q. Phone tapping undermines the spirit of fundamental right to privacy. Comment.