Journo’s Hathras Call ‘Leaked’: Is Phone-Tapping Legal?

The Supreme Court’s 1997 PUCL judgment lays out a very detailed procedure to be followed for tapping to be legal.

On the evening of Friday, 2 October, a phone conversation between India Today journalist Tanushree Pandey and a relative of the Dalit woman who was allegedly gang-raped and murdered in Hathras, was leaked on social media.

Following a report on right-wing digital portal OpIndia, Times Now ran a show on a number of ‘leaked’ phone calls involving people in the village, including the victim’s family.

At this time, it is unclear how exactly the conversations in question were recorded, and how they reached social media and certain sections of the media. The conversations could have been recorded by either of the parties on their phones, and then eventually found their way into the public domain.

However, given the family’s claims that they are under surveillance and their phones had even been taken away by the police at one point, there are credible concerns that there may be a different explanation: phone-tapping.

In fact, when asked about this on an India Today show, BJP IT Cell head Amit Malviya did not deny the allegation, saying there are processes in place for tapping phones.

"You know there is a process to record and tap phone calls, right? You can't be outraging...": @amitmalviya

So snooping and tapping phones is a routine and acceptable practice and need not be questioned. Unbelievable‼ #Newstrack with @RahulKanwal pic.twitter.com/8AhjmuhvnX

— IndiaToday (@IndiaToday) October 2, 2020

India Today has argued that the phone of either their journalist or the victim’s family was tapped, and that the telephone call has been “illegally released in public” with “malafide intentions” As a result, they have asked why either of the two phones was being tapped – and then how the recording was then leaked by officials who had access to them.

So when can someone’s phone be tapped according to the law? Would it be illegal for Tanushree Pandey or the victim’s family’s phones to be surveilled? What process would have been required to be followed for this to comply with the law?

1997 PUCL Case: Supreme Court Holds Phone-Tapping is Legal...

The People’s Union for Civil Liberties filed a PIL in the Supreme Court in the 1990s following reports of increased phone-tapping by investigative agencies, including a report in the journal ‘Mainstream’ dated from 1991 on how the CBI was tapping politicians’ phones.

That report found that phones were being tapped without any authorisation, “in good faith on oral requests” by the authorities, for periods longer than six months, and without the maintenance of proper records.

The power to tap phones comes from Section 5(2) of the Indian Telegraph Act 1885, which allows for the blocking and interception of transmissions between persons, on the occurrence of any public emergency or in the interest of public safety, subject to certain other requirements being met.

The central government has the power to make specific rules relating to interception or blocking, such as the ones used to suspend the internet on a more regular basis than any other country in the world. However, there have never been any rules framed for phone-tapping by the government.

During the arguments in court, the petitioner argued that the right to privacy was a fundamental right under Articles 19 and 21 of the Constitution. They argued that phone-tapping was an obvious invasion of this right to privacy, and so Section 5(2) of the Telegraph Act would be unconstitutional – unless it was read down to require prior judicial sanction.

Basically, they said that unless a court was asked for permission to tap someone’s phone (ex parte, of course), no authority should have the power to do so. This would eliminate any element of arbitrariness or unreasonableness.

The court heard from senior advocates Kapil Sibal and Rajeev Dhavan in their capacity as responsible members of the Bar, who argued that a system of procedural safeguards could be set in place without requiring prior sanction of the courts. Making prior sanction of the courts a requirement, Sibal argued, would not be possible under the current framing of the Telegraph Act, and would require an amendment to it.

The Supreme Court eventually found that tapping of phones is a “serious invasion of privacy.” Even though this was 20 years before the Right to Privacy case, it also said that it had no hesitation in holding that the Right to Privacy was part of the fundamental right to life and personal liberty in Article 21 (following a long line of cases on that point from well before the landmark 2017 judgment).

It was even noted that “It is felt in some quarters, not without reason, that not infrequently the Press in general and its editorial echelons in particular have to suffer tapping of telephones.”

However, they noted that the power to intercept communications under Section 5(2) was only to be exercised in certain conditions, ie a public emergency or in the interest of public safety, both of which are grounds under which fundamental rights can be reasonably restricted.

... IF These Requirements Are Satisfied...

The court expressly said that the public emergency or public safety interest in question under Section 5 of the Telegraph Act cannot be “secretive conditions or situations”. “Either of the situations would be apparent to a reasonable person,” the judgment says.

Even once it has been established that there is a public emergency or that there is a public safety interest, an order for phone-tapping can only be made after recording reasons in writing for why it is necessary or expedient to do so in the interests of:

1. The sovereignty and integrity of India;
2. The security of the State;
3. Friendly relations with foreign States;
4. Public order; or
5. For preventing incitement to the commission of an offence.

In light of these considerations, it becomes difficult to see what possible reason there could have been for tapping Tanushree Pandey’s phone, or even the phones of the victim’s family in Hathras. Yes, there may be legitimate public safety concerns at play over the incident, given the caste angle, but why these phones needed to be tapped for the maintenance of public order still makes no sense.

The UP government is by law required to have set down the reasons for the same in writing – it will be interesting to see what these are if the matter is taken to the courts.

... And IF This Process is Followed

Unfortunately, in the PUCL case, the Supreme Court agreed with Sibal’s argument that it could not create a requirement for prior judicial sanction, which meant that phones can be tapped based just on the decision of the central government or a state government.

However, the apex court held that the exercise of this power “laid down in Section 5(2) of the Act must have procedural backing so that the exercise of power is fair and reasonable. The said procedure itself must be just, fair and reasonable.”

Since the central government had failed to come up with such a procedure in the 112 years till the PUCL judgment, the apex court laid out its own procedure that had to be followed for a phone-tapping order to be valid:

1. A phone-tapping order can only be issued by the Home Secretary of the Government of India or the Home Secretary of a state government. In an urgent case, this power can be delegated to a Home Department officer not below the rank of Joint Secretary.
2. A copy of an order for phone-tapping has to be sent to a Review Committee set up for this purpose by the central government and all state governments, within a week. The Review Committee will assess whether the order complies with the requirements under Section 5(2) within two months.
3. When considering whether a phone-tapping order was actually necessary, the authorities need to consider, among other things, whether the information could have reasonably been acquired by other means.
4. The order has to specifically mention whose communications are to be intercepted; it cannot be a roving order.
5. The order will expire in two months, though it can be extended to a maximum total period of six months.
6. The authority which issued the phone-tapping order has to maintain records of the intercepted communications, including the extent to which and to whom the intercepted communications have been disclosed or copied.
7. The use of the intercepted material has to be limited to whatever is necessary in terms of the conditions under Section 5(2), and the material should be destroyed as soon as it is no longer required.

It will be important to know if the issuing of an order for tapping Tanushree Pandey or the Hathras victim’s family complied with these requirements. Did the home secretary of UP pass the order? Has the order been sent to the UP Review Committee?

And in the context of the leaking of the audio, has a record been maintained as to whom the recorded calls were disclosed to – as required by law.