By Trishala Sanyal, A.K.K. New Law Academy, Pune.
Nira Radia, a famous political lobbyist was entrapped in the net of phone tapping by the Indian income tax department between the years 2008 to 2009. Her tapes included conversations with elite businessmen, journalists, politicians and many more famous figures of the society. In 2010 some parts of the recorded tapes were leaked which resulted in the unauthorized publication of these tapes. Ratan Tata, Chairman of the Tata Group was among one of those elites whose conversation was also included. Thus, after the tape was leaked he filed a writ petition in the Supreme Court standing for his right and claiming for an infringement against the violation of the right of privacy. It is the Fundamental Right which has been guaranteed to the every citizen of India. Section 21 of the Indian Constitution states, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”[1] Now the dubious situation arising here is there is no particular procedure which has been established for the tapping of phone. Although, there is no particular Act governing the crimes and offences related to phone tapping yet the regulations have been laid down in a very discreet manner in various national and international Acts.
Laws related to phone tapping
- The Indian Telegraph Act, 1885
Section 5(2)[2] of the Act plays a very prominent role for the public safety. The following section has stated that the government has the power to take the possession of the licensed telegraphs in order to constitute message in case of emergency. However the interception has to be carried out by the written order of the concerned officer.
- Telecom Regulatory Authority Regulations (TRAI), 1997 and Unsolicited Commercial Communication Regulations, 2002
TRAI safeguards the interests of the telecom users and helps in nourishing the growth of the industry. Media plays a very prominent role in exposing the harsh truths like in the case of Nira Radia the recording was leaked leading to the violation the Right to Privacy. In December 2012 the Authority recommend to pass the pending enactment of laws by the executive decision and incorporating disqualifications and rules and regulation as necessary.[3] In the year 2007 TRAI introduced the Unsolicited Commercial Communication Regulation. The regulation was introduced with the aim to promote commercial transaction in good relation with the investment or services.
- Privacy and Confidentiality Direction
In February 2010 TRAI issued direction to all the service providers to, “put in place an appropriate mechanisms, so as to prevent the breach of confidentiality on information belonging to the subscribers and privacy of communication”[4]. By this regulation all the service providers are required to submit a report to the TRAI giving details of measures so adopted.
Amendment of January 2014
In January 2014 the Government has come up with the fresh laws for the lawful interpretation of bringing internet telephony VoIP, SMS and MMS under Indian Telegraph Act for the telecom companies. According to the law a senior company Indian officer and a residing in India shall be appointed as the National Nodal officer who shall take the responsibility of overall coordination and monitoring process across the country. Further the guidelines issued states, “The purpose of this Standard Operating Procedures (SOPs) is to lay minimum required guidelines for lawful interception and monitoring process across all telecom service providers (TSPs) to ensure systematic and tamper-proof monitoring of target numbers and have uniformity on critical issues of interception and monitoring which should be followed scrupulously,”[5]
Conclusion
Unlike Germany, the Indian Constitution does not express any language to uphold the right to privacy in telecommunication. This absence is acting as a backlog for the Supreme Court from reading the right to privacy from Section 21. If the Fundamental Rights had been more explanatory in nature it would have helped the jurists to pronounce the judgements in a well organized manner. Further it would have also helped the common people to understand the law and the rights in an efficient manner. Moreover the victims of the invasion of privacy are mostly the famous and well known dignitaries whose rights are curtailed. Although there are laws regarding phone tapping in India but these are not under lawful interception leading to a disharmonious situation. The violations of these laws are not taken as a grievous nature due to which the crime in the phone tapping world has increased to a great extent. With the technological advancement the access to acquire certain information has also become very easy. Lacunas in the laws can prove to be very harmful for the peace of the society as it can be taken as of the major causes of the criminal activities. For instance if a murderer wants to know the whereabouts of someone he can easily install certain devices and tap the phone of the victim to trace his exact location. Further it is also adversely affecting the national security to a great extent as the terrorists in the present day are well equipped to hack the confidential information in every way possible. Thus there is a great need to incorporate the Information Technology sector with the legal sector particular in this sector for the better technical support. To quote Michelle Pfeiffer would prove to be apt for the conflicting situation, “For me, getting comfortable with being famous was hard – that whole side of it, the loss of anonymity, the loss of privacy. Giving up that part of your life and not having control of it.”[6]
[1] http://www.constitution.org/cons/india/p03021.html
[2] http://cis-india.org/internet-governance/blog/privacy/privacy-telecommunications
[3]http://www.trai.gov.in/WriteReadData/Recommendation/Documents/Recommendations%20on%20Media%20Ownership.pdf
[4] http://cis-india.org/internet-governance/blog/privacy/privacy-telecommunications
[5] http://www.dnaindia.com/india/report-government-issues-standard-operating-procedures-for-phone-tapping-in-india-1948730
[6] http://www.brainyquote.com/quotes/keywords/privacy.html#PRXChlPwYmEviR1e.99