The Standard Operating Procedure (SOP) for interception, monitoring and decryption of messages and emails, firmed up in 2011, allows security and law enforcement agencies in remote areas to intercept and monitor without approval from the Union Home Secretary up to three days, and this is where most of the alleged misuse of powers was reported, according to officials.
Last week, the Home Ministry issued the order, authorising 10 central agencies to monitor, intercept and decrypt all data contained in any computer system, which received much flak from opposition parties.
Among alleged misuse of such powers is the case reported in 2015, in which Andhra Pradesh police registered cases in different police stations on allegations of phone-tapping of TDP MLAs.
Similarly, in 2013, a Delhi Police constable and three private detectives were charged for obtaining call details records of Arun Jaitley, the then Leader of Opposition in Rajya Sabha.
Details of SOPs accessed by The Indian Express says that relaxation of the three-day period is only applicable under “emergent cases” under the Indian Telegraph Rules, 1951. “…In remote areas and for operational reasons, where obtaining of prior directions for interception of messages is not feasible, interception shall be carried out with prior approval of the head or the 2nd senior most officer of the security or law enforcement agency at the Central level and an officer not below the rank of IG at the State level,” the SOP states.
It also makes the “head of the agency” responsible for informing the “competent authority” about such interception within three working days. “Such interception shall be confirmed by the competent authority within a period of 7 working days,” it adds. The “competent authority” is the Union Home Secretary at the Centre and Secretary of the Home department at the state level.
The guidelines were framed following amendments in IT Act Section 69 in 2008 and Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009. The guidelines state that if confirmation is not received from the “competent authority” within the stipulated the period, “such interception shall cease forthwith”, and intercepted messages and records “destroyed within 48 hours, unless those are required for the purpose of investigation, enquiry or judicial proceedings before a competent court”.
In an RTI reply in 2013, the Home Ministry had stated that at the time, it received an average 9,000 requests every month for mobile phone interception from agencies. Ministry officials confirmed that the number of such requests, particularly for email interceptions, has gone up substantially. Section 5(2) of Indian Telegraph Act, 1885, empowers the Central and state governments to intercept any message or class of messages during any public emergency, “or in the interest of public safety if satisfied that it is necessary or expedient to do so in the interest of sovereignty …of India.” The SOPs, formulated by the then UPA government, had also laid down the process for destruction of intercepted messages. “The intercepted material…shall be destroyed every six months after written approvals from the head of security and law enforcement agencies or the designated officer.”