Tuesday, April 19, 2011

CBDT Phone Tapping Powers Under Fire

Phone tapping is a very controversial and serious issue. If phone tapping is not supported by a constitutionally sound law, it amount to gross violation of basic human rights. A very common requirement for engaging in phone tapping is taking the prior permission form a court in this regard.

Although we have laws for phone tapping and e-surveillance in India yet according to techno legal experts of India none of them are constitutionally sound. Similarly, we have no constitutionally sound lawful interception law in India.

In the past the phone tapping powers have been abused in India by both Indian Government and private individuals alike. Even the contents obtained from such phone taps have been circulated in public with great disregard to the privacy rights of various individuals. The matter has been pending before the Supreme Court of India. The Supreme Court has even admitted that with the technological advancement, privacy is virtually disappearing.

There is an urgent need to formulate effective and constitutional lawful interception law in India. Lawful Interception is a process that “Reconciles” the Law Enforcement requirements and Civil Liberties of a Nation. In the Indian context, we have no Lawful Interception Law in India. By Lawful Interception Law I mean a “Constitutionally Sound” Lawful Interception Law and not the present “Self Serving Laws” of India, says Praveen Dalal, managing partner of New Delhi based Law Firm Perry4Law and leading cyber law expert of India.

The Home Ministry of India is mulling a law on lawful interception in India. Even the Telecom Policy of India 2011 may have some provisions regarding the same. In a recent development in this regard, the Prime Minister’s Office (PMO) has authorised the Home Ministry to take the final call on the contentious issue of withdrawing the CBDT’s powers of phone-tapping.

A committee headed by the Cabinet Secretary, with Secretaries of ministries concerned as members, had unanimously recommended that the CBDT be taken off the list of agencies which can file phone-tapping requests. The committee had then sent its recommendations to the PMO, which recently finalised them and routed them to the Home Ministry, the nodal ministry for authorising telephone interception.

However, these initiatives of Home Ministry may not be sufficient. 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, says Praveen Dalal. 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.

It is clear that without a constitutionally sound lawful interception law of India, things are not going to improve in India. The earlier it is done the better it would be for the national interest of India.