Phone Tapping
The term ‘phone tapping’ also means wiretapping or interception of phone.
Phone tapping or cell phone tracking/tracingis an activity where a user's phone calls, and other activities are tracked using different software.
This procedure is majorly carried out without the targeted person being notified of any such activity.
It can be done by authorities making a request to the 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.
Phone Tapping and Fundamental Rights
Article 21 of the Indian Constitution says that “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
The expression ‘personal liberty’ includes ‘right to privacy’.
A citizen has a right to safeguard his personal privacy, plus, that of his family, education, marriage, motherhood, child bearing, and procreation, among other matters.
The act of telephone tapping affects right to privacy as well as right to freedom of speech and expression.
Phone Tapping in India
In India, Phone Tapping can only be done in an authorized manner with permission from the department concerned.
However, if it is undertaken in an unauthorized manner then it is illegal and will result in prosecution of the person responsible for breach of privacy.
Who can Tap Phones?
In the states, police have the powers to tap phones.
At the Centre, 10 agencies are authorized 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.
Laws Governing Phone Tapping in India:
The Indian Telegraph Act, 1885
According to Section 5(2) of the Act on the occurrence of any public emergency, or in the interest of public safety, phone tapping can be done by the Centre or states.
The order can be issued 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”.
There is an exception for the press: “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.
Who Authorizes Phone Tapping?
Phone tapping is authorized by Rule 419A of the Indian Telegraph (Amendment) Rules, 2007.
In the case of the Central Government: The order can be issued by an order made by the Secretary to the Government of India in the Ministry of Home Affairs.
In the case of a State Government: By the Secretary to the State Government in-charge of the Home Department.
In Emergency Situation:
In such a situation, an order may be issued by an officer, not below the rank of a Joint Secretary of India, who has been authorized by the Union Home Secretary, or the State Home Secretary.
In remote areas or for operational reasons, if it is not feasible to get prior directions, a call can be intercepted with the prior approval of the head or the second senior-most officer of the authorized law enforcement agency at the central level, and by authorized officers, not below the rank of Inspector General of Police, at the state level.
The order must be communicated within three days to the competent authority, who must approve or disapprove it within seven working days.
If the confirmation from the competent authority is not received within the stipulated seven days, such interception shall cease.
It can be noted here that in 2021, the Central Government notified the Indian Telegraph Right of Way (Amendment) Rules, 2021.
Checks Against Misuse:
The law is clear that interception must be ordered only if there is no other way of getting the information.
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.
Any order issued by the competent authority must 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.
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.
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