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Over a million mobile phones, across service providers, are under the surveillance of Central agencies in India through the year. Officially, the Government will admit to over 6,000 telephones in New Delhi being tapped. This secret hot list has as many as 400 bureaucrats and military officials monitored on suspicion of corruption, 200 corporate honchos, over 50 top journalists, an equal number of fixers, a dozen arms dealers, two dozen NGOs and about 100 high society pimps, drug dealers and hawala operators. This is in addition to suspected militants, their supporters and sympathisers and known criminals.

In an attempt to widen its surveillance net, the Home Ministry has now sought suitable amendments to the Indian Telegraph Act, 1885, to allow active intervention for tapping phones and monitoring Internet communication. Home Secretary G.K. Pillai says the home ministry is pursuing changes to the country's telecom laws to bring clarity in the Government's authority to intercept highly secure corporate communications. This will be part of broader changes related to lawful intercept policy and privacy.

Everyday, Pillai, the sole authoriser of such Central wiretaps, receives hundreds of fresh written requests for electronic surveillance. A majority of requests emanate from the Intelligence Bureau (IB), Income Tax Department, Central Bureau of Investigation (CBI), Directorate of Revenue Intelligence (DRI) and the Enforcement Directorate (ED).

Additional requests also come from state agencies who need the home ministry's permission to intercept phones in Union Territories. Law enforcement agencies can tap a phone without the home secretary's permission for the first week. Thereafter, a tap can be done only after a strong case is made. In reality, a weak argument works. Crime and terrorism are the familiar rationales but they leave the door open for multi-level abuse. Each state has an average of 2,000 to 3,000 phones under surveillance at any given time.

Phone tapping is uncoordinated. Various agencies monitor numbers in silos. At times, a single number is simultaneously being monitored by multiple agencies of the state and Centre. The proliferation of off-the-shelf sophisticated listening devices and absence of a Central database compound the problem. Except in certain special laws, wiretaps can be used only as corroborative evidence in courts. But it is so easily done with such little effort that it becomes the first recourse for law enforcement authorities. With an increasing reliance on phone tapping as operational tools, the surveillance society is only set for consolidation.

Activists argue for a US-like system where only a judge authorises wiretaps after reviewing the evidence. "Civil liberties are far too important to be left to the executive or the home secretary. There is every danger of wrong permissions being given out, resulting in indiscriminate tapping," says former chief justice Rajinder Sachar.

What The Law Says:

Phone tapping is allowed under the general provisions of Section 5 of the Indian Telegraph Act, but only in "public emergency, or in the interest of public safety". In 1997, the Supreme Court, in response to a petition filed by justice Sachar, laid down five precepts for intercepting conversations-in the interests of national sovereignty and integrity, state security, friendly relations with foreign states, public order or for preventing incitement to the commission of an offence. "Tapping phones especially for tax evasion and corruption needs to be done only in the rarest of rare cases," says former IPS officer-turned-lawyer Y.P. Singh.

There are seven Central agencies authorised to tap telephones - the IB, ED, Delhi Police, CBI, DRI, Central Economic Intelligence Bureau and the Narcotics Control Bureau. "Phone tapping is a legal instrument. It should be kept in safe custody of the court or very few officers should have access to it. Leaking tapes are like leaking official secrets; it not only adversely affects an individual but is also harmful to investigations and the prosecution process," says Arun Bhagat, former director, IB.
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