D C Pande
ACRIMONIOUS scenes were witnessed in Parliament on Monday over the phone tapping issue with both Lok Sabha and Rajya Sabha being adjourned over the issue. As soon as the Lok Sabha assembled for the day, Opposition parties led by the BJP sought suspension of the Question Hour to take up discussion on the issue. BJP leader, Mr L K Advani, sought explanation from Dr Manmohan Singh on the issue.

In the Rajya Sabha, Mr S S Ahluwalia (BJP) said a notice for suspension of Question Hour has been given even as his colleagues shouted slogans condemning the alleged act.
In a report, the Outlook magazine claimed that the phones of prominent political leaders like CPI-M general secretary, Mr Prakash Karat, Janata Dal-United leader, Mr Sharad Yadav, Bihar Chief Minister, Mr Nitish Kumar and Congress general secretary, Mr Digvijay Singh were tapped by the National Technical Research Organisation, an intelligence agency created after the Kargil War to cover all aspects of technical intelligence gathering.
What is really required in this context is to set up a Parliamentary committee on the lines of the Birkett committee in Britain to examine all aspects of the problem, scrap the outdated Indian Telephone Act of 1885 and replace it by a new legislation, which forbids invasion of an ordinary citizens’ privacy. The law must provide statutory safeguards, which make it impossible for the government to abuse its powers against political activists and journalists.
It’s India in the midst of a summer of discontent, and paranoid people are discovering the extent to which walls have ears, trees have eyes and practically nothing is private if someone really wants to sniff something out.
All things considered, barring Parliament House, the Prime Minister and Ms Sonia Gandhi’s residences and offices, and other official places bristling with jammers, it is unlikely that there is any spot that is truly safe from prying eyes and ears any more.
Electronic Snooping
The whole affair is going to make us take a close look at how secure our environment is. But the news of the extensive snooping potential of ‘passive interception’, the newest technological nosey parker, has got the political class suddenly looking over its shoulders warily.
Not merely because Big Brother may be listening even if entirely by coincidence as is being alleged in the case of the Bihar CM and other top politicos but because anyone who can cough up a few crores could be nosing around. The best ones are German and Israeli and they don’t come cheap. The Chinese and Korean ones cost just a few crores.
The advent of long-range snooping machines which can track and record up to 100 numbers in flat terrain within a 2-km radius obviously means that security measures are being ratcheted up several notches.
Normal cell phones are the first casualty of this new spy vs spy as calls and texts can be snatched undetected as they hop from tower to tower. Conversations in moving cars unless they have jammers are another no-no.
Blackberrys may be immune to interception by Indian agencies for the time being, but what if the US wants to listen in? Besides, in these times of anti-terror cooperation, it won’t be long before India gets those encryption codes too. Then the only recourse will be what Smiley and generations of real spooks have advocated for decades: secure landlines (where government honchos have an advantage with their RAX system) and coded conversations!
Right to Privacy
The best thing, of course, is to make sure you have nothing to hide. The only secret that remains secret today is that which only two people know and one of them is dead.
Right to privacy is a part of right to life and liberty as enshrined in Article 21 of Constitution of India, and is extended to telephone tapping but right to Information cannot be invoked in the matter.
The Indian Telegraph Act was enacted in the year 1885 and the Telegraph Rules were enacted in the year 1951, section 5 of sub-section 2 provides for tapping phones in case of public emergency, threat to public security; among others but no procedure and safeguard was provided either in the Indian Telegraph Act or in the Indian Telegraph rules, until 1999 after 104 years when section 419 A was inserted in Indian Telegraph Rules providing for procedures to be adopted for tapping of phones affording reasonable safeguards but not until a social organisation, People Union for Civil Liberties filed a Public Interest Litigation in Supreme Court of India and since there was no provision in the Constitution of India, directly recognising the Right to Privacy as fundamental right or at least a constitutional right, it was necessary therefore to decide upon the right first.
Telephone tapping is officially strictly controlled in many countries to safeguard an individual’s privacy; this is the case in all developed democracies. In theory, telephone tapping often needs to be authorised by a court, and is, again in theory, normally only approved when evidence shows it is not possible to detect criminal or subversive activity in less intrusive ways; often the law and regulations require that the crime investigated must be at least of a certain severity. In many jurisdictions however, permission for telephone tapping is easily obtained on a routine basis without further investigation by the court or other entity granting such permission. Illegal or unauthorised telephone tapping is often a criminal offence. However, in certain jurisdictions such as Germany, courts will accept illegally recorded phone calls without the other party’s consent as evidence.
In India, telephone tapping has to be approved by a designated authority. The central government or state government is empowered to order interception of messages per section 5 of Indian Telegraphic Act 1885. Rule 419 and 419A sets out the procedure of interception and monitoring of telephone messages. There is a provision for a review committee to supervise the order of interception.
The Regulation of Investigatory Powers Act 2000 in general prohibits interception of communications by a third party, with exceptions related to government agencies. A recording made by one party to a phone call or e-mail without notifying the other is not prohibited provided that the recording is for their own use; recording without notification is prohibited where some of the contents of the communication–a phone conversation or an e-mail–are made available to a third party.–INAV