Monday, 18 November 2019

Phone Tapping Violation of Fundamental Rights of Privacy and Free Speech

Updated: June 12, 2010 12:25 pm

The recently divisive debate in the Parliament about the latest phone tapping of not only of the opposition but also of some high ups in congress hierarchy has again highlighted the danger of vesting such uncanalised power in the security and intelligence agencies.

            The government has naturally denied to authorised it. But the small writing that it had in fact taken place is left open. The denial by                P Chidambram, the astute lawyer may be technically correct but does not frontally deny the allegation that phone tapping of political leaders did take places. His reply is limited only to assuring that no phone tapping of political leaders was authorised by the government and that nothing was found in the record of NTRO about it. But that is begging the whole question. Report was that conversation of political leaders was tapped and recorded, logged and filed away. Bihar Chief Minister and the Congress leader Digvijay Singh confirm that such a conversation as mentioned in a news magazine did take place. As such recording cannot be denied. It may be that as intelligence official explained that because of the sophistication of the instrument it may pick up conversation not even intended like one would expect in a case like that of Digvijay Singh, the Congress leader. It may also be that after the news story came out in public, the agency has removed the disk. So technically the government’s answer may be correct—but is it morally right, judged by Gandhiji’s public morality principles.

            Regrettably it has to be conceded that phone tapping has been going on under all governments of whatever political hue. There was similar exposure by a news magazine in 1990-91, that persuaded Peoples Union for Civil Liberties (PUCL) to take up the matter to the Supreme Court. There also the wiretapping leaders of all parties, journalists had taken place including that of Chander Shekhar, the former Prime Minister – with the usual slowness of wheel of justice, the matter was heard only in 1996. It is significant that the authenticity of the news report was not questioned by Union of India before the Court. Rather CBI in its reply was frank enough to admit that its enquiries had revealed unjustified interceptions of telephones of a large number of journalists, Members of Parliament, Chief Ministers, and

even some Central Ministers. In fact, the CBI had recommended that with regard to Members of Parliament the proposal should have the approval of the Prime Minister who may consult the Speaker and Chairman of Rajya Sabha.

            The Supreme Court held: “Telephone tapping unless it comes within the grounds of restrictions under Article 19 (2) would in fact violate Article 19 (1) of the Constitution.” It also agreed with USA Supreme Court: “The security of one’s privacy against arbitrary intrusion by the police… is basic to a free society. It is therefore implicit in the concept of ordered liberty” and as such enforceable against the States through the Due Process Clause. But while holding so firmly on the right of citizens, the Court faltered when it came to indicate remedy to stop this violation. It merely directed that interception may be permitted by Home Secretaries, whose orders will be subject to review by a committee consisting of Cabinet Secretary at the Centre, Chief Secretary in States, along with some other secretaries merely an illusory appeal from Caesar to Caesar, all within the intimate obliging circle of the bureaucracy. This touching, though misplaced, faith in the bureaucracy is a serious flaw in the judgment, especially in view of courts’ own finding that several lapses had occurred in the execution of the order passed under the Act.

            Not only that but even the moderate recommendation of the Second Press Commission that the original order should emanate in writing from the minister and that it should come up for approval before a board constituted on the lines prescribed under the Preventive Detention Law, was not accepted.

            While disposing of the matter the Supreme Court has stated that it was laying down the procedure and hoped that the government will lay down a fair and reasonable procedure (emphasis supplied). But alas, inspite of several governments consisting of various political parties (including those who are in the forefront of condemning this practice) none of the governments thought fit to even apply its mind to correct this deficiency in the law—not much of a tribute to the commitment to fundamental rights of citizens sometimes I wonder whether we are still not in the era of feudal lords (the political parties) and serfs (citizens like ourselves). It is only when someone steps on the toes of political leaders that this shout of safeguarding individuals rights are projected around.

            Personally I feel that this issue can be defused by taking the opposition into confidence and framing a legislation that no phone tapping will be done without prior judicial scrutiny this safeguard is essential if the right of privacy, a Fundamental Right is to be protected against the whimsical, ulterior misuse of this power (irrespective of any political colouring of any government as has been shown in the past). The lame excuse, put forward by governments that intricate security matters are too subtle and complex for judicial evaluation was sarcastically rejected by USA Supreme Court thus: “There is no reason to believe that judges will be insensitive to or uncomprehending of the issues involved in domestic security cases. If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance.”

            In the news magazine there is a disturbing mention that latest intelligence gathering is frequently deployed in Muslim dominated areas of cities like Delhi, Lucknow, Hyderabad, and also in Seelampur, Jamia in Delhi. This horrendous, unwarranted targeting of citizens of India, and especially of minorities calls for severest of condemnation. Unfortunately this aspect was not brought out in debate. Even the Home Minister did not deny it. Such attitude in intelligence community is totally impermissible. Why this incursive intelligence gathering in Lucknow area rather than in areas of Banares or Hardwar. I can understand if there is specific information about security danger in certain areas, in that case this may be permissible but without hard evidence, to pick up areas of minority residence is abhorrent and impermissible—the government needs on its own to clarify this aspect—secular India cannot permit communal intelligence gathering machinery.

By Justice (Retd) Rajindar Sachar

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