On the evening of Friday 2 October, a phone conversation between India Today journalist Tanushree Pandey and a relative of Hathras’s alleged gang rape and murder victim girl was ‘leaked’ on social media.
Following a report by the right-wing digital portal Opindia on the matter, Times Now ran a show on a number of ‘leaked’ phone calls involving the villagers, including the victim’s family.
At this time, it is unclear how the conversation was recorded in this case, and how it reached social media and parts of the media. It is possible that someone from both the parties has recorded the conversation on their phone, and then finally it has come into the public domain.
However, given the claims of the family that they are under surveillance and their phones were also snatched away by the police at one point, concerns are being raised about phone-tapping in this case.
In fact, when asked about this in an India Today show, BJP IT Cell chief Amit Malviya did not deny the allegation that the phone tapping process was going on.
India Today contended that the phone of either their journalist or the victim’s family was tapped, and telephone calls were issued “illegally” to the public with “wrong intentions”, as such, he asked That is why either of the two phones was being tapped – and then how the recording was ‘leaked’ by the officers who had access to it.
In such a situation, the question arises that according to the law, when can someone’s phone be tapped? Would it be illegal to tap the phone of Tanushree Pandey or the victim’s family? For this, what procedure is necessary to be followed while following the law?
1997 PUCL Case: Supreme Court upholds phone-tapping
The People’s Union for Civil Liberties filed a PIL in the Supreme Court in the 1990s following reports of increased phone tapping on behalf of investigative agencies, including a 1991 journal ‘Mainstream’, which stated that How the CBI was tapping the phones of politicians.
In that report, it was found that without proper permission, the phone was being tapped at the verbal request of the authorities, for which no paper record was being kept.
The right to tap phones derives from Section 5 (2) of the Indian Telegraph Act 1885, which allows any public emergency or in the interest of public safety, to block and intercept transmissions between individuals, for which Certain conditions must be met.
The central government has the power to make special rules related to interception or blocking, such as suspending the Internet. However, the government has never made any rules on phone-tapping.
During the hearing in the court, the petitioner argued that the right to privacy is a fundamental right under Articles 19 and 21 of the Constitution. He said that phone-tapping is obviously an intrusion into the right to privacy and therefore section 5 (2) of the Telegraph Act would be unconstitutional unless it has been read with prior judicial approval.
In a way, he said that no authority should have the power to tap the phone until the court has approved it.
The court listened to senior counsel Kapil Sibal and Rajiv Dhawan in the case. Both the lawyers spoke to the court as responsible members of the bar and argued that a procedural safeguards system could be made for it, not requiring prior approval of the court. Sibal argued that prior approval of the court would not be possible in the current framing of the Telegraph Act and for that changes would have to be made in the Act.
The Supreme Court had accepted that phone tapping is a case of ‘serious intrusion in privacy’. This was 20 years before the right to privacy case. Even then, the court said that there is no hesitation in considering the right to privacy as part of the fundamental right to life and personal liberty.
It was also said that ‘some people feel this and not without reasons, that the press will have to face phone tapping’.
However, it was said that the power to intercept communication under section 5 (2) will be used only under special circumstances. Such as in the interest of public emergency or public safety. In both these situations the fundamental rights are limited to some extent.
If these requirements are there
The court had clearly said that under Section 5 of the Telegraph Act, public emergency or public safety interest cannot be questioned in ‘intelligence situation’.
Once it is established that there is a public emergency or to be done in the interest of public safety, phone-tapping can be ordered only after recording the reasons in writing as to why it was necessary or it was issued in these interests:
- Sovereignty and integrity of india
- State protection
- For friendly relations with foreign states
- Public order
- To prevent the promotion of crime
After seeing these, it is difficult to find out what could be the possible reason behind tapping the phone of Tanushree Pandey or the victim’s family. There may be legitimate public safety concerns about the incident, but why was it necessary for them to tap their phones?
According to the law, the UP government has to give this reason in writing. If this matter goes to court then it will be interesting to see the reasons.