'Can't Reveal If a Phone Is Tapped,' MHA Tells CIC, Says It Defeats Telegraph Act

When an appellant wanted to know if his phones were under “unauthorised interception”, the home ministry said it cannot reveal such information as it will defeat the "lawful interception" provision of the Telegraph Act.

Illustration: The Wire

Gaurav Vivek Bhatnagar | The Wire | 20/AUG/2021 |  New Delhi: A recent order of the Central Information Commission (CIC) has established that ordinary citizens have no right to know if their phones are being subjected to authorised or unauthorised interception.

The home ministry submitted before the Commission that lawful interception is possible under Section 5(2) of the Indian Telegraph Act, and if it is disclosed whether a phone was intercepted or not, it shall defeat the very purpose of the Act.

The complainant, Neelesh Gajanan Marathe, had filed an application under the Right to Information Act in April 2019 with the department of telecommunications under the ministry of communication and IT, the telecom regulatory authority of India (TRAI), and the ministry of home affairs to know if his two mobile phones were under any “unauthorised interception”.

Petitioner raises the issue of privacy threat from non-state actors too

During the hearing before the Commission, Marathe contested the response of the government departments and insisted that interception of phones was illegal.

In her order, the central information commissioner Vanaja N. Sarna recorded how during the hearing, the complainant also cited a September 2018 judgment of the Supreme Court in the case of Justice K.S. Puttaswamy (Retd) vs Union of India, wherein it was held that the claim of protection of privacy can be against both state and non-state actors as the danger in the age of technological development can originate not only from the state but from the non-state entities as well.

Central Information Commission

Sarna also recorded that though Marathe “could not substantiate how he thinks that his phone was intercepted” and that “it appeared that only on the basis of his apprehension he was claiming that his phone was intercepted and there is no material proof to substantiate his claim”.

Only telecom service providers can provide information on interception, says TRAI

On behalf of the government agencies, Ritu Pandey, director (security-II) and CPIO of TRAI, submitted that the Authority does not have any access to such information. “The same has to come from Telecom Service Providers (TSPs).”

To a further query, on whether TSPs can be contacted and information can be collected and given if available, Shailendra Vikram Singh, deputy secretary and CPIO of the ministry of home, submitted that lawful interception is possible under Section 5(2) of the Indian Telegraph Act. However, he added that in case it is disclosed whether phone is intercepted or not, it shall defeat the very purpose of the Act.

Singh also argued that Marathe’s question is hypothetical and the same cannot be asked from TSPs and only such information which is held in material form can be given. He also reiterated his written submissions to state that “lawful interception of communication messages is carried out under Section 5(2) of the Indian Telegraph Act, 1951 read with the Rule 419A of Indian Telegraph Rules 1951 in the interest of public safety, sovereignty and integrity of India, security of the State etc.”

‘Disclosure would defeat objectives of Indian Telegraph Act’

The MHA official also submitted that ‘‘disclosure of information as to whether a particular telephone number is under interception or not is not possible as it would defeat the inherent objectives of Section 5(2) of the Indian Telegraph Act”.

The home ministry also submitted that all the records and correspondence related to interception have been destroyed as per the provisions contained in sub rule-18 of Rule 419(A) of the Indian Telegraph Rules, 1951.

The ministry said Marathe had also sought similar information from M/s. Mahanagar Telephone Nigam Ltd. (MTNL) as well which the corporation had stated that “lawful interception/phone tapping is done by law enforcement agencies, duly authorized by the Central/State Governments under the classified legal regime, and that documents/ information relating to lawful interception are classified as ‘Top Secret’ and cannot be disclosed as they are exempted from disclosure under sections 8(1)(a), 8(1)(g) and 8(1)(h) of the Right to Information Act, 2005 (hereinafter referred to as the “RTI Act”)”.

The MHA official further stated that “information regarding interception can be provided only by the authority empowered under Section 5(2) of the Telegraph Act to direct the interception of messages”. He also charged that the second appeal of the applicant in the matter before the CIC had been disposed of and that by now approaching the TRAI for information, he had thus indulged in “forum shopping”.

CIC had in 2018 ordered TRAI to reveal information in a phone tapping case

The official also claimed that the order of the Commission in the case of Kabir Shankar Bose, which was cited by the appellant, had also been challenged by TRAI before the Delhi high court, which through an order of December 2018 had kept the application of stay pending.

For the record, Bose, a practising advocate, had filed an application under the RTI Act seeking information whether his mobile phone had been placed under surveillance or tracking or tapping by any agency and, if so, at whose direction. On September 12, 2018, the CIC had directed TRAI to collect the information from the service provider and furnish it to Bose.

TRAI had subsequently challenged the CIC order before a single judge bench of Justice Suresh Kumar Kait, who dismissed the petition of the authority on November 20, 2018 while observing that it was a regulatory authority and has the power to call for the said information from the service provider. However, a division bench of Chief Justice D.N. Patel and Justice Jyoti Singh had stayed Justice Kait’s order.

So, the MHA insisted that the order of CIC had not been implemented and the matter was still sub-judice. Therefore, he insisted, the reliance placed on the said order by the complainant was misplaced.

In view of the submissions, the Commission held that “the CPIO, Ministry of Home had provided a suitable explanation”. It, therefore said, there was “no scope for any intervention in the matter”.