Why Delhi HC Order on Phone Tapping Protects Our Right to Privacy

The order holds private companies accountable with respect to the data they possess of ordinary citizens.

(Photo: The Quint)

In a judgment delivered on 7 December 2018, the Delhi High Court tangibly demonstrated how privacy and transparency can complement each other.

The court dismissed an appeal filed by the Telecom Regulatory Authority of India (TRAI) and directed it to obtain information sought under the Right to Information Act, 2005 from Vodafone, a private body, and furnish such information to the applicant.

This was on a specific query in which a person asked the TRAI to disclose if his phone was being tapped or placed under surveillance.

The applicant, Kabir Shankar Bose, had specifically sought information under the RTI Act on whether his mobile phone number had been placed under surveillance or tapping by any agency. Simultaneously, the respondent sent a letter requesting the above information to Vodafone, his service provider.

TRAI Accountable Under RTI: Delhi HC

However, Vodafone denied such information on the grounds that it is not a 'public authority’ under the RTI Act and hence, is not obliged to furnish it. Now, much turned on the definition of “public authorities” under Section 2(h).

The respondent, exhausting the chain of appeals, approached the Chief Information Commission, which, vide an order dated 12 September 2018, directed TRAI to obtain the information from the service provider and furnish it to the respondent. TRAI, in its appeal, challenged the said CIC order on the grounds that it is not in possession of such information and is under no obligation to collect such information from Vodafone and furnish it to the respondent.

Relying on precedent, it further argued that indiscriminate and impractical demands for disclosure of such information would hinder the effective functioning of the regulator and the RTI Act must not be abused or misused to prevent public authorities from carrying out their regular duties.

These arguments were rejected by the High Court, which upheld the CIC order and stated that since TRAI is a ‘public authority’ under the RTI Act, it is obliged to furnish all information that can be legally accessed by it from any private body such as Vodafone.

Strengthening India’s Right to Privacy

The Delhi HC referred to the decision in Poorna Prajna Public School v. Central Information Commission & Ors. where the court had observed the following:

“The RTI Act includes in its ambit, the information relating to any private body which can be accessed by public authority under any law for the time being in force. Therefore, if a public authority has a right and is entitled to access information from a private body, under any other law, it is “information” as defined in Section 2(f) of the RTI Act. The term “held by the or under the control of the public authority” used in Section 2(j) of the RTI Act will include information which the public authority is entitled to access under any other law from a private body.”

The Delhi HC in Poorna Prajna Public School v. Central Information Commission & Ors.

The ruling is yet another positive move towards protecting the right to privacy, which was reaffirmed as a fundamental right earlier last year in the case of K Puttaswamy v Union of India.

While the right to privacy is actionable against state parties, the K Puttaswamy case does clearly extend the horizontal applicability of the right of privacy for private companies (though it may be extended by way of subsequent decisions). Having said that, with the Draft Personal Data Protection Bill, 2018 in the pipeline, non-state parties will be required to overhaul their existing data protection regimes to align it with the new law.

Checking Abuse of Mass- Surveillance

However, even the Draft Personal Data Protection Bill, 2018 does not contain any safeguards from surveillance. Further, given the limited parliamentary time, it is also unlikely that this Draft Bill may pass through as law before next year's elections, and even if it does, it may not take complete effect owing to several transitory provisions, which permit the government to notify it in a phased manner over a term of 3 years.

Given this background and the limitations of the existing statutory approach, the decision by the High Court is a clear victory for privacy of individuals.

It is broadly in line with the recommendations of the Justice AP Shah Committee of Experts, which held that a person should be informed if their phone was tapped or put under surveillance after the surveillance ceases.

This is one of the most credible ways to prevent abuse and systems of mass surveillance. This judgment hence does two important things – it protects the privacy of the user and also paves the path for holding private companies accountable with respect to the data or information they possess of ordinary citizens.

(Arpitha Desai is a lawyer with expertise in parliamentary affairs and technology policy. She authored this analysis as a volunteer for a citizen effort to shape a model law on privacy protection at www.saveourprivacy.in. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)