Revised SOP issued for Lawful Interception of Communication

The Central Government, with regard to Central Intelligence and Security Agencies, keeps updating the internal SOPs/instructions for processing, executing and conducting oversight of interceptions of telephones. The Government constituted an Inter-Ministerial Group headed by Home Secretary to consider issues relating to institutional frame work of Government for interception of messages/tapping of telephones, e-mail etc. As a result, on 19th May 2011, revised/updated SOPs to deal both with changing technology and ensuring a strict compliance of Rule 419-A were issued. The procedure to be followed for lawful interception of telephones permissible under Section 5(2) of the Indian Telegraph Act 1885 is governed by Rule 419-A of the Indian Telegraph (Amendment) Rules, 2007.

Section 5(2) of the Indian Telegraph Act, 1885 provides for lawful interception in the interests of the sovereignty, and integrity of India, the security of the State, friendly relations with Foreign States or public order or for preventing incitement to the commission of an offence. This Section read with Rule 419(A) of the Indian Telegraph (Amendment) Rules, 2007 imply statutory requirement that specific order/authorization of the Government is required for any lawful interception of communications.

Therefore, the Agencies have to statutorily obtain specific authorization from the Competent Authority (Union Home Secretary in the Central Government and the State Home Secretary for the States) for each case of lawful interception in accordance with provisions of Section 5(2) of the Indian Telegraph Act 1885 and Rule 419(A) of the Indian Telegraph (Amendment) Rules, 2007. Accordingly, it would be inaccurate to state that any Agency of the Centre or State Government, per se, is given a general authorization to undertake Lawful Interception. However, the Central Government from time to time lists some agencies which may make such requests for authorization in specific cases. The issue of listing NTRO can be considered & decided as per the national security imperatives, whenever required.

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Report on Tapping of Telephones – Govt of India Clarifies

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There have been a number of articles on the Cabinet Secretary’s report regarding tapping of telephones which appeared in some section of the media. It is important that the correct factual position is presented to the media. The provisions for authorization of interception are contained in 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 Hon’ble Supreme Court has upheld the constitutional validity of interceptions and monitoring under Section 5(2) of the Act through its order dated 18.12.1996 in Writ Petition (C) No.256/1991 by People’s Union for Civil Liberties (PUCL) Vs. Union of India. It has also observed that the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as “Right to Privacy”, and accordingly, held that telephone tapping would infringe the Right to Life and Right to Freedom of Speech & Expression enshrined in Articles 21 and 19(1)(a) respectively of the Constitution of India, unless it is permitted under the procedure established by law. The Hon’ble Court further observed that Section 5(2) of the Act clearly provides that ‘occurrence of any public emergency’ or ‘interest of public safety’ is a sine qua non for the application of these provisions. Neither of these are secretive conditions or situations. Either of the situations would be apparent to a reasonable person.

In this regard, the Hon’ble Court has recalled its observations in the case of Hukum Chand Shyamlal Vs. Union of India and others, 1976 stating that ‘economic emergency’ is not one of those matters expressly mentioned in the statute, and further that mere ‘economic emergency’ may not necessarily amount to a ‘public emergency’ and justify action under Section 5(2) of the Act, unless it raises problems relating to the matters indicated in the section. ‘Public emergency’ would mean the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action. It is one which raises problems concerning the interest of public safety, the sovereignty and integrity of India, the security of the State, friendly relations with sovereign States or public order or the prevention of incitement to the commission of an offence. ‘Public Safety’ means the state of condition of freedom from danger or risk for the people at large. It has been stated further that when either of these two conditions are not in existence, authorities cannot resort to telephone tapping, even though there is satisfaction that it is necessary or expedient to do so in the interests of sovereignty and integrity of India, security of the State, friendly relations with sovereign States, public order or for preventing incitement to the commission of an offence.

In the light of the above, the Hon’ble Supreme Court gave directions covering the issue of institutional safeguards to be put in place in respect of interception under Section 5(2) of the Indian Telegraph Act, which was incorporated in terms of Rule 419(A) of the Indian Telegraph Rule, 1951.

In the light of recent controversies on account of interception of certain telephone numbers by a designated authorized agency, which were extensively reported by media, the Hon’ble Prime Minister directed the Cabinet Secretary to look into the Rules, Procedures and Mechanism to avoid their misuse. After examining all the relevant issues, Cabinet Secretary recommended further comprehensive refinement of Rules and Procedures, in addition to providing for stronger penal provisions for violations by amending the law. 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. The recommendations made by the Cabinet Secretary reiterate this established legal position, which should not be seen in terms of conflicts between individuals or interest groups.