“Gentlemen do not read each other’s mail,” said Henry L. Stimson. The ruling United Progressive Alliance (UPA) Government apparently feels otherwise. As allegations of illegal phone tapping by the Central Government reaches a crescendo, the Manmohan Singh Government faces an Opposition baying for blood. The opposition has made it clear that only a thorough explanation from the Prime Minister himself will satisfy them.

An Outlook expose earlier this month has accused the government of tapping phones and taping conversations of several political leaders including the Congress party’s own General Secretary, Digvijay Singh, the Bihar Chief Minister, Nitish Kumar, Union Agriculture Minister Sharad Pawar and Communist Party of India (Marxist) General Secretary, Prakash Karat.

The expose alleges that the government used devices developed by the National Technical Research Organisation (NTRO), an organisation created after the Kargil war, to facilitate intelligence gathering for the government. The phone tapping has already led to the biggest scandal to hit the country this year, the IPL fiasco where alleged recorded conversations between Union Minister and BCCI President, Sharad Pawar and IPL Commissioner, Lalit Modi, have opened a Pandora’s Box of bribes, murky deals, forgery and underworld links, among others.

Despite the outcome of this incident, some hard questions need to be asked regarding the existing laws that govern the telecommunication industry especially the Telegraph Act, 1885 (“Act”). Section 5 (2) of the Act states, that on the occurrence of any public emergency or in the interest of public safety, the government by an order can direct that any message relating to any subject to or from any person or class of person can be intercepted.

The Act, which was amended in 2003, did not take into account the guidelines laid down by the Supreme Court in the 1997 People’s Union for Civil Liberties vs. Union of India case.

The Supreme Court  had laid down the following guidelines regarding phone tapping; (a) If a telephone needs to be tapped, then the home secretary of the Union Government or the respective State Government can issue an order to this effect; (b) Strong reasons have to be specified in order to issue such a directive; and (c) Such an order shall be in force only for two months unless there is another order, which will give the Home Secretary the right to extend it by another six months only.

Further, the Supreme Court, did not grant the Home Secretary any decisive powers, and in its judgment stated clearly that such an order shall be subject to review by the Cabinet, law and telecommunication secretary within 2 months from the date the order.

Leader of the opposition, L.K. Advani on a blog post titled “Is the Emergency Back?” has alleged that he and his colleagues including former Prime Minister Atal Bihari Vajpayee, were aware that their phones were being tapped and calls between them were being recorded. He has called for a parliamentary committee on the lines of the Birkett Committee set up in 1957 in the U.K. which examined the wire-tapping laws in the country. The committee had concluded that whilst tapping is objectionable, it maybe allowed under strict guidelines for the purposes of safety or espionage activity.

In the present case, the government might be hard pressed to find appropriate reasons to justify its actions if it is found guilty of violating the fundamental rights of its citizens. It has been alleged that none of the procedures laid down by the Supreme Court or the Indian Telegraph Act have been followed by the government. Hence, if proved that the government was guilty of violating the fundamental rights of its citizens under Article 21 of the Constitution which calls for protection of life and personal liberty of every citizen of India.

This is not the first instance in India that a government has faced allegations of illegal phone tapping. In 1988, the Karnataka Government led by Ramakrishna Hedge was accused of tapping the phones of its opponents, resulting in the government losing power. Earlier, the then President, Zail Singh had accused the Rajiv Gandhi Government of bugging the Rashtrapathi Bhavan.

However, there is an urgent need for the Act to be amended to incorporate the guidelines laid down by the Supreme Court. It is imperative that prior judicial approval must be sought for by the government to tap the phones of its citizens.