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| NC man cries foul, complains CM of phone tapping by police | | *Privacy being invaded without Home deptt order | |
SUMIT SHARMA
JAMMU, Apr 19: In a spine chilling revelation, a senior leader of National Conference has accused Jammu and Kashmir police of brazenly invading his privacy and putting his telephone connection under surveillance since the last many months without seeking mandated permission form the home ministry which is presently being headed by Chief Minister Omar Abdullah.
Sources said that on finding himself under surveillance, the said NC leader complained to Chief Minister Omar Abdullah who in turn reportedly rang-up Director General of Police (DGP) Kuldeep Khoda and sought an explanation of the same. They added that the matter was brought into the notice of Chief Minister a few days before the legislative council elections.
Informed sources said that DGP expressed ignorance about the phone taping of a senior politician. However, on the directions of Chief Minister Omar Abdullah, sources said that Khoda rang up the concerned head and directed him to clear the position of phone taping of a senior leader and report him accordingly. They added that investigations revealed that not only senior leader of National Conference but telephones of four other leaders –cum-businessmen were being taped for the last five months.
Sources confirmed that it is yet to be ascertained who had issued orders for tapping the phone calls of five people. Legal experts maintain that everyone has the right to privacy and phone tapping invades that right; in fact, it violates the constitutional and human rights of an individual. Indian constitution lists freedom of speech and expression as fundamental rights of every Indian citizen and the act of phone tapping affects these rights.
As per the clause (5) of the Indian Telegraph Act 1885, the power of interception of communication can be used only when it is necessary or expedient to do in the interest of the sovereignty and integrity of India, security of the country, and for friendly relations with a foreign state. Maintenance of public order and prevention of incitement for the commission of an offence also justify the use of phone tapping and other means of communication interception.
he Indian law also mentions that even if the above conditions exist, the procedure of phone tapping is permissible only if carried out in a fair and reasonable manner. The law also calls for formulation of precautions to be taken for preventing improper interception or disclosure of messages. However, Section 69 of the Indian Technology (Amendment) Act, 2008 allows any government official or policemen to listen to calls, read SMSs and emails and monitor websites visited by any person, if essential, in the interests of the country.
As per the amended act, no warrant is required from a magistrate to do so. The amended law has expanded the powers of the government to authorize phone tapping by dropping all references to public safety or emergencies. The section allows for decryption, encryption and monitoring of communication to investigate any offence, cognizable or not.
Supreme Court of India in a 1997 decision had ruled that the “right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as the right to privacy.” So any instance of phone tapping, unless carried out through a lawful procedure is unconstitutional. The court laid down certain procedures for carrying out phone tapping:
The orders for phone tapping can be issued only by the home secretary of the government of India and the home secretaries of state governments. In urgent cases, the power of issuance can be delegated to an officer below the rank of joint secretary. Each order should mention the reasons for phone tapping and is applicable for only two months
The orders should be specific with regard to names, persons and places. Although the order for phone tapping can be extended, it should not be done for more than six months. Each order is subject to examination by review committee, consisting of Cabinet secretary, law secretary and telecommunication secretary. Review should be done within two months of the order of interception
It should justify that it is not possible to collect the required information through other means. Authorities need to keep a record of the phone tapping and destroy them once their retention is found to be unnecessary.
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