Despite being a democracy, we do not have a lawful interception law in India. Despite being a democratic country, our Parliamentary democracy is in serious jeopardy. Despite having separation of powers under the Constitution of India, the same has faded away and lost its significance these days. It is very difficult to accept that we have separation of powers in India any more. This is so because the legislative function of Parliament of India has almost lost its purpose and significance these days.According to Praveen Dalal, a Supreme Court Lawyer and leading Techno Legal Expert of India, India is the only country of the World where phone tapping is done without a Court Warrant and by Executive Branch of the Constitution of India. Phone tapping in India is “Unconstitutional” and the Parliament of India has not thought it fit to enact a “Constitutionally Sound Law” in this regard. Even the Supreme Court’s directions in PUCL case have proved futile and presently the Court is dealing with the issue once more, informs Dalal.
In the meantime, department of telecommunications (DoT) India seems to have accepted some of the suggestions of Praveen Dalal. DoT has proposed a penalty of up to Rs. 2 crore on unlawful tapping, as against just Rs. 500 at present, under different sections of the Indian Telegraph Act, 1885. For breach of Section 26 of the Act, which prohibits telegraph officers or other officials from making away with or altering, unlawfully intercepting or disclosing messages, or divulging the purport of signals, the maximum penalty has been proposed.
The proposed amendment to the Indian Telegraph Act is likely to be tabled in Parliament soon. Amendments to the Indian Telegraph Rules for electronic surveillance and collection of call data records (CDRs) have also been proposed. A decision is likely to be taken on these amendments very soon.
Although this is a welcome step in the right direction yet it is more like a “Knee Jerk Reaction” and a “Piecemeal Work” on the part of DOT. We do not need piecemeal acts at this stage but a “Comprehensive Lawful Interception Law” in India, suggest Praveen Dalal. Presently, DOT decision is Piecemeal as has been done in case of other technology laws like Cyber Law of India that made it a Cyber Criminal’s Friendly Legislation.
A similar exercise was undertaken in the year 2008 regarding information technology act, 2000. With the passing of the information technology amendment act 2008, India became a safe heaven for cyber criminals. Even now DoT is planning rules under the IT Act 2000 that is again a piecemeal effort.
India needs a comprehensive lawful interception law, effective and strong cyber law, better telecom policies, good legal framework for law enforcement and intelligence agencies and many more crucial legislations. India in general and DoT India in particular should at all cost avoid knee jerk and piece meal efforts that it/they is presently engaging in.
