Explained: What laws govern tapping a phone; what are the checks in place?

Context: A Shiv Sena leader has claimed that the Centre is protecting IPS officer Rashmi Shukla, now posted with the CRPF.

She’s facing an FIR in Mumbai and is being probed for allegedly tapping the phones of Rajya Sabha MP Raut and NCP leader Eknath Khadse in 2019, when she was heading the State Intelligence Department in Maharashtra.

How are phones tapped in India?

Today, authorities make a request to the mobile service provider, which is bound by law to record the conversations on the given number and provide these in real time through a connected computer.

Who can tap phones?

At state level: In the states, police have the powers to tap phones.

At the Centre, 10 agencies are authorised to do so: Intelligence Bureau, CBI, Enforcement Directorate, Narcotics Control Bureau, Central Board of Direct Taxes, Directorate of Revenue Intelligence, National Investigation Agency, R&AW, Directorate of Signal Intelligence, and the Delhi Police Commissioner. Tapping by any other agency would be considered illegal.

What laws govern this?

Phone tapping in India is governed by The Indian Telegraph Act, 1885.

Section 5(2) says that “on the occurrence of any public emergency, or in the interest of the public safety”, phone tapping can be done by the Centre or states if they are satisfied it is necessary in the interest of “public safety”, “sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence”.

• Exception: “Press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section”.

The competent authority must record reasons for tapping in writing.

What are the checks and balances?

The law is clear that interception must be ordered only if there is no other way of getting the information.

Period of enforcement: The directions for interception remain in force, unless revoked earlier, for a period not exceeding 60 days. They may be renewed, but not beyond a total of 180 days.

Review committee: Any order issued by the competent authority has to contain reasons, and a copy is to be forwarded to a review committee within seven working days.

• At the Centre, the committee is headed by the Cabinet Secretary with the Law and Telecom Secretaries as members.
• In states, it is headed by the Chief Secretary with the Law and Home Secretaries as members.

The committee is expected to meet at least once in two months to review all interception requests.

Destruction of records: Under the rules, records pertaining to such directions shall be destroyed every six months unless these are, or are likely to be, required for functional requirements.

Service providers too are required to destroy records pertaining to directions for interception within two months of discontinuance of the interception.

Is the process transparent?

There are multiple provisions aimed at keeping the process transparent.

Directions for interception are to specify the name and designation of the officer or the authority to whom the intercepted call is to be disclosed. They should also specify that the use of intercepted call shall be subject to provisions of Section 5(2) of the Telegraph Act.

The directions have to be conveyed to designated officers of the service providers in writing by an officer not below the rank of SP or Additional SP or equivalent.

– The officer is expected to maintain records with details of the intercepted call, the person whose message has been intercepted, the authority to whom the intercepted calls have been disclosed, date of destruction of copies etc.

The designated nodal officers of the service providers are supposed to issue acknowledgment letters to the security/law enforcement agency within two hours on receipt of an intimation.

– They are to forward every 15 days a list of interception authorisations received to the nodal officers of the security and law enforcement agencies for confirmation of authenticity.

It makes the service providers responsible for actions of their employees. In case of unauthorised interception, the service provider may be fined or even lose its licence.

Source: This post is based on the article “Explained: What laws govern tapping a phone; what are the checks in place?” published in The Indian Express on 23rd Apr 22.