On phone-taps & email, new law makes POTA look kind and gentle

Pota was the first law to make phone and e-mail intercepts admissible as evidence. The police had to abide by elaborate safeguards to justify the encroachment on somebody’s privacy. But now there will be no such pre-conditions for producing any intercepts in terrorist cases.

In fact, it’s ironic that while POTA is being repealed because of ‘‘allegations of gross misuse,’’ the ordinance confers more powers than ever before on the police to produce intercepted communications as evidence.

Though the police have always had the option of tapping phones under the Indian Telegraph Act 1885 to aid their investigation, they could not produce any intercepted communication in the court till Pota made it admissible three years ago in terrorist cases.

Since it is a departure from the norm, Pota contained a whole chapter devoted to ensuring that the police did not invade somebody’s privacy needlessly or did not fabricate any evidence under the guise of intercepted communications.

For example:

• Under Pota, a superintendent of police was required to submit a detailed application in the prescribed form for permission to tap somebody’s telephone or electronic communications.

• The permission, stipulated in the form of a reasoned order, could be granted only by a specially appointed ‘‘competent authority’’ not below the rank of a Joint Secretary to the Union Government or Secretary to the state Government.

• In a further safeguard provided by Pota, the competent authority in turn was required to immediately submit his order along with records to a ‘‘review committee’’ headed by a retired high court judge.

• And if any police officer was found to misuse the power to intercept communications, he was liable to be punished under Pota with imprisonment up to one year.

These safeguards have all been dropped by the UPA Government’s ordinance even as it grafted a whole lot of Pota provisions into the Unlawful Activities (Prevention) Act 1967.

The ordinance makes it clear that any interception claimed to have been made by the police in any manner ‘‘shall be admissible as evidence against the accused in the court during the trial of a case.’’

Such unregulated power conferred on the police may well become a fresh source of abuse in terrorist cases.