1. Is the government empowered to intercept communication between two individuals? Answer: Yes. The Central and the State government can intercept communication. Letters, telephone (mobiles and landlines) and internet communication (e mails, chats etc.) can be intercepted by the government. Interception of:
2. Under what circumstances can the government intercept communication? Answer: The circumstances under which communication can be intercepted by the government are:
3. Are there any safeguards that have been built into the interception process? Answer: The Supreme Court in the case of PUCL Vs Union of India observed that the right to have telephone conservation in the privacy of one’s home or office is part of the Right to Life and Personal Liberty enshrined in Article 21 of the Constitution, which cannot be curtailed except according to the procedure established by law. Elaborating the scope of Section 5 (2) of the Indian Telegraph Act, 1882 the Court clarified that this section does not confer unguided and unbridled power on investigating agencies to invade a person’s privacy. The court laid down the following safeguards: a. Tapping of telephones is prohibited without an authorizing order from the Home Secretary, Government of India or the Home Secretary of the concerned State Government b. The order, unless it is renewed shall cease to have authority at the end of two months from the date of issue. Though the order may be renewed, it cannot remain in operation beyond six months. c. Telephone tapping or interception of communications must be limited to the address (es) specified in the order or to address (es) likely to be used by a person specified in the order. d. All copies of the intercepted material must be destroyed as soon as their retention is not necessary under the terms of Section 5 (2) of the Indian Telegraph Act, 1882. e. In an urgent case, this power may be delegated to an officer of the Home Department, Government of India or the Home Department of the State government, who is not below the rank of Joint Secretary. Copy of this order should be sent to the concerned Review Committee within one week of passing of the order. f. This Review Committee shall consist of the Cabinet Secretary, Law Secretary and the Secretary Telecommunications at the Central Government. At the state level, the Committee shall comprise of Chief Secretary, Law Secretary and another member (other than the Home Secretary) appointed by the State Government. The Committee shall on its own, within two months of the passing of an order under Section 5 (2) investigate whether its passing is relevant. If an order is in existence, the Committee should find out whether there has been a contravention of the provisions of Section 5 (2). If the Review Committee on investigation concludes that provisions of Section 5 (2) have been contravened, it shall direct destruction of the copies of the intercepted material. In pursuance of the Supreme Court judgement the Indian Telegraph (First Amendment) Rules, 1999 were framed and notified on 16.02.1999. A similar notification titled, the Information Technology (Procedures and Safeguards for Interception, Monitoring and Decryption of Information Rules, 2009 were notified on October 27, 2009. [see page 18] 4. Are there any other known cases of telephone tapping of politicians? Answer: In 2005, Shri Amar Singh alleged that his telephones were tapped by private individuals. The case against them is currently pending in the Tis Hazari court in Delhi. 5. Are there any statistics about the number of telephones being tapped by the government? Answer: Currently no such statistics are publicly available. In a similar context, in the UK (where the Regulation of Investigatory Powers Act 2000 governs this particular subject) a Report of the Interception of Communications Commissioner states that a total of 5344 warrants were issued for interception of communication in 2008.
Parliament is considering a proposal to change the process of appointment of judges to the Supreme Court and High Courts. A Constitutional Amendment Bill has been introduced in Rajya Sabha that enables the formation of a Judicial Appointments Committee (JAC), and states that the composition and functions of the JAC will be detailed in a law enacted by Parliament. The appointments will be made according to the recommendations of the JAC. This body replaces the current process of “consultation” with the Chief Justice of India (CJI) and other senior judges. An ordinary Bill has also been introduced in Rajya Sabha which seeks to establish the JAC. The composition of the JAC will be the CJI, the next two judges of the Supreme Court in terms of seniority, the law minister and two eminent persons. These two eminent persons will be selected by a collegium consisting of the CJI, the prime minister and the leader of opposition in the Lok Sabha. In case of High Court Judges, the JAC will consult with the chief minister, the governor of the state and the Chief Justice of the High Court. The new system is widening the selection committee. It includes representatives of the executive and senior judiciary, as well as two persons who are jointly selected by the executive (PM), judiciary (CJI), and the legislature (leader of opposition). However, it may be diluting some of the safeguards in the Constitution. At a later date, the composition of the JAC can be amended by ordinary majority in Parliament. [For example, they can drop the judicial members.] This is a significantly lower bar than the current system which requires a change to the Constitution, i.e., have the support of two thirds of members of each House of Parliament, and half the state assemblies. The 120th Constitution Amendment Bill and the JAC Bill are listed for consideration and passing in Rajya Sabha today. Given that these Bills propose fundamental changes to the process of appointments to key constitutional bodies, it is important that there be a wide debate. The Rajya Sabha must refer these Bills to the Standing Committee for careful examination of various issues. I have written a piece on this issue in the Indian Express today.
