The decision of the Punjab and Haryana governments to purchase sophisticated “off-the-air” mobile phone interception system appears outright unconstitutional and illegal. Sadly, there has not been even a whimper or protest over the move, which could not just curb political dissent but also lead to erosion of civil liberties and rights, as enshrined under the Constitution. While Haryana has already acquired for its police such contraptions costing Rs 7-8 crore, the Punjab State Empowered Committee headed by the Chief Secretary recently approved the purchase of such a system, which can eavesdrop on telephones, besides intercept SMSes. It can listen-in on not only wire and land telephones but also mobile phones. This move of the two states is obviously rife with serious political and civil implications. There have been allegations earlier of the telephones of senior political leaders having been bugged or intercepted. There is no doubt that tapping is provided under Section 5 of the Indian Telegraph Act, 1885, but with certain very clear riders. In fact, when allegations were made in early 1990s, some civil liberties groups moved the Supreme Court. The Apex Court in 1997 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 sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order or for preventing incitement to the commission of an offence. It is only then that the said authority may pass the order for interception of messages by recording reasons in writing for doing so. The Supreme Court directed that an order on tapping of telephones would not be issued except under authorization by the Home Secretary of the Central Government or of the State Government. The order should indicate the kind of communication that 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 authorization, although it could be renewed for six months. A further direction was also given that original order would have to be reviewed by a 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 the Act, it will set aside the order and also destroy copies of intercepted material. In the background of these laid down constitutional safeguards, one is amazed at the indifference being shown in political, official and nonofficial circles of both Punjab and Haryana to the recent move. The nature of the equipment is such that no permission for interception needs to be taken. Since there were reports of the previous Congress Government in Punjab having used such machines to keep a tab on political opponents and others, one hoped that the present SAD-BJP regime would stand up against such illegality. Instead, the government appears to be legalizing the illegality. But for one of the judges of the Punjab and Haryana High Court, the courts appear to have paid no attention to the issue. Do they not realize how sensitive some of their own conversations might be? Would judges like to have third parties monitoring their phone calls? In case the monitoring is unchecked, there could be a tendency to listen-in to not only private telephone conversations but also those of political opponents. In 1970s the US President, Richard Nixon had to resign after it was discovered that his administration had bugged the Democrat Party headquarters in the Watergate Complex in Washington DC. In the USA, the controversial Patriot Act, which was passed in the wake of 9/11 terror attacks, provides unprecedented powers to the state to intercept and search telephone and email communications in order to prevent terrorist activities. But civil liberties groups in US continue to be critical of the Act. One may not favour such an Act in India, but it is unfortunate that the 120-year old Indian Telegraph Act has not been given another look to make it relevant to the present day. It is no secret that armed forces and intelligence agencies regularly monitor mobile calls made from one country to the other. And surely the Americans waded into this long ago. But, the states appear to have neither the need nor the jurisdiction to acquire such sweeping equipment and powers, especially in the light of the SC ruling. Instead, state police ought to be vigilant against private individuals acquiring such equipment. After all, Rs 7-8 crore would not be beyond the paying capacity of a large political party or an industrial house. And if states were to be allowed to acquire such equipment, they will have to put in place a transparent “check system”, which is open to judicial and parliamentary scrutiny. State officials say that the equipment would enable them to track down criminals. They also explain that since securing intercepted data from telecom service providers takes time, the equipment will help them get real-time spot intelligence. On safeguards, they say that the equipment would be strictly under the control of the Intelligence Chief of the state. But the Act and the SC ruling do not provide for eavesdropping on law-breakers through such equipment without specific case-by-case authorization. Besides, since the intelligence chiefs in states are traditionally known to be hand-picked choices of the party in power, fear that the equipment might be misused is entirely justified. The Constitution entails and empowers the courts and the legislative assemblies in states to check on the legality of the move in the light of the existing provisions of the Indian Telegraph Act.
Saturday, February 7, 2009
Bugbear Is Real
The decision of the Punjab and Haryana governments to purchase sophisticated “off-the-air” mobile phone interception system appears outright unconstitutional and illegal. Sadly, there has not been even a whimper or protest over the move, which could not just curb political dissent but also lead to erosion of civil liberties and rights, as enshrined under the Constitution. While Haryana has already acquired for its police such contraptions costing Rs 7-8 crore, the Punjab State Empowered Committee headed by the Chief Secretary recently approved the purchase of such a system, which can eavesdrop on telephones, besides intercept SMSes. It can listen-in on not only wire and land telephones but also mobile phones. This move of the two states is obviously rife with serious political and civil implications. There have been allegations earlier of the telephones of senior political leaders having been bugged or intercepted. There is no doubt that tapping is provided under Section 5 of the Indian Telegraph Act, 1885, but with certain very clear riders. In fact, when allegations were made in early 1990s, some civil liberties groups moved the Supreme Court. The Apex Court in 1997 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 sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order or for preventing incitement to the commission of an offence. It is only then that the said authority may pass the order for interception of messages by recording reasons in writing for doing so. The Supreme Court directed that an order on tapping of telephones would not be issued except under authorization by the Home Secretary of the Central Government or of the State Government. The order should indicate the kind of communication that 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 authorization, although it could be renewed for six months. A further direction was also given that original order would have to be reviewed by a 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 the Act, it will set aside the order and also destroy copies of intercepted material. In the background of these laid down constitutional safeguards, one is amazed at the indifference being shown in political, official and nonofficial circles of both Punjab and Haryana to the recent move. The nature of the equipment is such that no permission for interception needs to be taken. Since there were reports of the previous Congress Government in Punjab having used such machines to keep a tab on political opponents and others, one hoped that the present SAD-BJP regime would stand up against such illegality. Instead, the government appears to be legalizing the illegality. But for one of the judges of the Punjab and Haryana High Court, the courts appear to have paid no attention to the issue. Do they not realize how sensitive some of their own conversations might be? Would judges like to have third parties monitoring their phone calls? In case the monitoring is unchecked, there could be a tendency to listen-in to not only private telephone conversations but also those of political opponents. In 1970s the US President, Richard Nixon had to resign after it was discovered that his administration had bugged the Democrat Party headquarters in the Watergate Complex in Washington DC. In the USA, the controversial Patriot Act, which was passed in the wake of 9/11 terror attacks, provides unprecedented powers to the state to intercept and search telephone and email communications in order to prevent terrorist activities. But civil liberties groups in US continue to be critical of the Act. One may not favour such an Act in India, but it is unfortunate that the 120-year old Indian Telegraph Act has not been given another look to make it relevant to the present day. It is no secret that armed forces and intelligence agencies regularly monitor mobile calls made from one country to the other. And surely the Americans waded into this long ago. But, the states appear to have neither the need nor the jurisdiction to acquire such sweeping equipment and powers, especially in the light of the SC ruling. Instead, state police ought to be vigilant against private individuals acquiring such equipment. After all, Rs 7-8 crore would not be beyond the paying capacity of a large political party or an industrial house. And if states were to be allowed to acquire such equipment, they will have to put in place a transparent “check system”, which is open to judicial and parliamentary scrutiny. State officials say that the equipment would enable them to track down criminals. They also explain that since securing intercepted data from telecom service providers takes time, the equipment will help them get real-time spot intelligence. On safeguards, they say that the equipment would be strictly under the control of the Intelligence Chief of the state. But the Act and the SC ruling do not provide for eavesdropping on law-breakers through such equipment without specific case-by-case authorization. Besides, since the intelligence chiefs in states are traditionally known to be hand-picked choices of the party in power, fear that the equipment might be misused is entirely justified. The Constitution entails and empowers the courts and the legislative assemblies in states to check on the legality of the move in the light of the existing provisions of the Indian Telegraph Act.
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