Most of the criticism of the Jan Lok Pal Bill, 2011 seems to be centered on its disdain for established legal process and the constitutional framework. One such sticking point is the Lokpals powers to intercept phone conversations. This was recently highlighted by Mr. Arun Jaitley during a debate in the Upper House of Parliament. Drawing on his days as a leading member of the Bar, the Leader of the Opposition highlighted the problematic provisions of the Jan Lok Pal Bill which if made into law would bypass safeguards as contained in constitutional law as established by the levers of Supreme Court adjudication.
Now before we proceed to study the objections to the provisions, it will be useful to have a copy of the provisions themselves. The Jan Lok Pal Bill, 2011 as made available on the India Against Corruption Website makes two mentions to telephone tapping, the first of which is contained under Section 8 that defines the powers of the officers in the Lokpal, it states that,
For the purposes of investigation of offences related to acts of corruption, the appropriate Bench of the Lokpal shall be deemed to be designated authority under Section 5 of the Indian Telegraph Act empowered to approve interception and monitoring of messages of data or voice transmitted through telephones, internet or any other medium as covered under the Indian Telegraph Act read with Information and Technology Act 2000 and as per rules and regulations made under the Indian Telegraph Act 1885.
The Second provision is with regard to amendments to existing laws and is contained in Sec. 23(12) and it states that:
(12) The appropriate Bench of the Lokpal shall be deemed to be the designated authority under Section 5 of the Indian Telegraph Act empowered to approve interseption and monitoring of messages or data or voice transmitted through telephones, internet or any other medium as covered under the Indian Telegraph Act read with Information and Technology Act 2000 and as per rules and regulations made under the Indian Telegraph Act 1885.
The objections to these provisions are on the basis of existing framework based on the Supreme Courts, interpretation of Constitutional Provisions through the PUCL Case which was later made into law under Section 5(2) of Indian Telegraph Act, 1885 read with Rule 419(A) of the Indian Telegraph Rules, 1951 as well as Section 69 of the Information Technology Act, 2000 read with Information Technology (Directions for Interception or Monitoring or Decryption of Information) Rules, 2009. The framework for wire-taps in India is produced in a nutshell below:
The right to privacy in respect to telephone tapping is a narrow constricted right where the government is allowed to tap phones subject to broadly a two step safeguard.
- The first step involves a substantive safeguard where conditions have to arise as to the satisfaction of conditions which allow telephone tapping. These conditions appear in our constitution under Article 19(2)and include,
- the interests of the sovereignty and integrity of India,
- the security of the State,
- friendly relations with foreign States,
- public order,
- decency or morality or in relation to contempt of court, defamation or incitement to an offence
On the satisfaction of these conditions the government may order a wire tap.
- Now the second step which safeguards our privacy and limits the power of the government to order en-masse wire taps are documentary procedures which compel the government to demonstrate the need for the wire tap itself. These procedural safeguards commence with an order which records reasons as to why the wire tap has been ordered and how it falls within the mandate of Article 19 (2).
- There are several other procedural safeguards such as automatic expiration of the order of the wire tap after 60 days of it being made, a review of the order by a high level review committee etc.
- The substantive safeguards as well as the procedural safeguards are contained under rules made under the IT Act as well as Telegraph Act. It is to be noted that these procedural safeguards function as an important barriers to unlimited and unhindered wiretaps by the state.
Based on a review of the above it is quite clear that the provisions of the Jan Lok Pal completely bypass these safeguards when setting themselves up as an authority to pass orders for wire taps. This is not without some justification and suspicion of the prevalent system.
One of the undercurrents to this entire anticorruption campaign has been the unauthorized release of the Radia Tapes which demonstrated a thick nexus between corporate india, the mainstream media and the ruling political class. According to documents in the public domain, the Radia Tapes were a product of an investigation of the Central Board of Direct Taxes which was concerned that Niira Radia was evading taxes. Well, what started as a regular tax evasion investigation sprang up a Pandora’s box.
After the Radia Tapes were published by some magazines and portions of it were also out online, a curious press release was put out by the Cabinet Secretariat on 25th April, 2011 which noted that,
It was also recommended to either remove the CBDT from the list of authorized agencies in respect of telephone interception as the income tax laws fall within civil jurisdiction and do not always impinge on the public safety or to specify stipulations regarding the extent of surveillance allowed to the agency, including the level at which requests are to be made for authorization by the Home Secretary. It is clarified that the law does not permit use of telephone tapping and monitoring of conversations to merely detect tax evasion. There are specific laws and rules that contain provisions for detection of unaccounted wealth and evasion of taxes, and interception of telephones without ‘public emergency’ or ‘public safety’ being at stake is not in accordance with the law, as exhaustively interpreted by the Hon’ble Supreme Court.
Now going with the present system it can be easily argued that corruption by public servants also does not fall within the grounds as mentioned under Article 19(2) and hence a wire tap on such erring officials cannot be ordered. However, as experience and the recent protests in the Capital have shown corruption is an evocative issue which directly touches upon public order. Infact previously wiretaps have been made pursuant to investigations under the Prevention of Corruption Act. Now to go back to on established precedent would be step which would be regressive. In my opinion a good way to go forward would be to allow wire taps but incorporate the existing safeguards. It will also be useful to carve out an express ground for allowing wire taps in reported cases of corruption.
- Analysis of the Privacy Bill, 2011 (iltb.net)
- Comments on the Privacy Bill, 2011 (iltb.net)
- who takes the blame for a forged tap order ? (iltb.net)