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.
"Parliamentary approval of the creation, mandate and powers of security agencies is a necessary but not sufficient condition for upholding the rule of law. A legal foundation increases the legitimacy both of the existence of these agencies and the (often exceptional) powers that they possess." Though mechanisms for ensuring accountability of the executive to the Parliament are in place for most aspects of government in India, such mechanisms are completely absent for the oversight of intelligence agencies. In India, various intelligence agencies such as the Research and Analysis Wing, and the Intelligence Bureau are creations of administrative orders, and are not subject to scrutiny by Parliament. This is in direct contrast to the practise of the Legislature's oversight of intelligence agencies in most countries. Though different countries have different models of exercising such oversight, the common principle - that activities of intelligence agencies should be subject to Parliamentary scrutiny, remains uniform. In the US for example, both the House and the Senate have a Committee which exercises such scrutiny. These are House Permanent Select Committee on Intelligence, established in 1977, and the Senate Select Committee on Intelligence, created in 1976. Both committees have broad powers over the intelligence community. They oversee budgetary appropriations as well as legislation on this subject. In addition, the House Committee can do something which the Senate can not: “tactical intelligence and intelligence-related activities.” This gives the Committee the power to look into actual tactical intelligence, and not just broader policy issues. Intelligence agencies are also governed by a variety of laws which clearly lay out a charter of responsibilities, as well as specific exemptions allowing such agencies to do some things other government agencies ordinarily cannot. (For source, click here) In UK, the Intelligence Services Act of 1994 set up a similar framework for intelligence organisations in the UK, and also set up a mechanism for legislative oversight. The Act set up a Committee which should consists mostly of Members of Parliament. The members are appointed by the Prime Minister in consultation with the leader of opposition, and the Committee reports to the Prime Minister. The Prime Minister is required to present the report of the Committee before Parliament. (For the Act, click here) Recently, the Committee has expressed concerns in its 2009-10 report over the fact that it is financially dependent on the Prime Minister's office, and that there could be a conflict of interest considering it is practically a part of the government over which it is supposed to express oversight. (For the report, click here) A study titled "Making Intelligence Accountable: Legal Standards and Best Practice" captures the best components of Parliamentary oversight of intelligence bodies. Some of these are:
