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

Shiv Sena's Sanjay Raut has accused the Centre of protecting IPS officer Rashmi Shukla, under probe for tapping the phones of political leaders in 2019. What laws govern tapping; what are the checks in place?

Written by Deeptiman Tiwary | New Delhi |
Updated: April 23, 2022 8:20:17 am
Rashmi Shukla is under probe for alleged tapping of phones of Sanjay Raut. (Express Photo: Ganesh Shirsekar, File)

On Wednesday, Shiv Sena leader Sanjay Raut claimed that the Centre is protecting IPS officer Rashmi Shukla, now posted with the CRPF. Shukla is 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?

In the era of fixed-line phones, mechanical exchanges would link circuits together to route the audio signal from the call. When exchanges went digital, tapping was done through a computer. Today, when most conversations happen through mobile phones, authorities make 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.

Who can tap phones?

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 The Indian Telegraph Act, 1885.

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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”.

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 authorises phone tapping?

Rule 419A of the Indian Telegraph (Amendment) Rules, 2007, says phone tapping orders “shall not be issued except by an order made by the Secretary to the Government of India in the Ministry of Home Affairs in the case of Government of India and by the Secretary to the State Government in-charge of the Home Department in the case of a State Government”. The order has to conveyed to the service provider in writing; only then can the tapping begin.

What happens in an emergency?

In unavoidable circumstances, such an order may be issued by an officer, not below the rank of a Joint Secretary to the Government of India, who has been authorised 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 authorised law enforcement agency at the central level, and by authorised officers, not below the rank of Inspector General of Police, at the state level.

The order has to be communicated within three days to the competent authority, who has to 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,” the rule says.

For example, during the 26/11 attacks in Mumbai, the authorities had no time to follow the complete procedure, and so a mail was sent to the service provider by the Intelligence Bureau, and phones of terrorists were put under surveillance. “The proper procedure was followed later. Many times, in grave situations such as terror attacks, service providers are approached with even verbal requests, which they honour in the interest of the nation’s security,” an intelligence official said.

What are the checks against misuse?

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

“While issuing directions under sub-rule (1) the officer shall consider possibility of acquiring the necessary information by other means and the directions under sub-rule (1) shall be issued only when it is not possible to acquire the information by any other reasonable means,” Rule 419A says.

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 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. “When the Review Committee is of the opinion that the directions are not in accordance with the provisions referred to above it may set aside the directions and orders for destruction of the copies of the intercepted message or class of messages,” the law says.

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, and 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.

“The service providers shall put in place adequate and effective internal checks to ensure that unauthorised interception of messages does not take place and extreme secrecy is maintained…,” the rule says.

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.

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