Lines of Listening: Navigating the Legal Labyrinth and Ethical Paradox of Telephonic Surveillance

The modern concept of surveillance encompasses a bundle of rights, including individual liberty, freedoms of speech and expression, and, most significantly, our right to privacy, as explicitly recognized by the 9 bench Puttaswamy judgment.

This pivotal legal ruling firmly established right to privacy, recognizing its crucial role in protecting the dignity and autonomy of individuals in the digital age. As a result, any form of surveillance must be balanced and constrained within the bounds of these fundamental rights to ensure a just and democratic society. Therefore, it becomes crucial to explore the reasonable restrictions the State can place and the manner in which they are executed.

Telephonic surveillance, often referred to as wiretapping or phone tapping, is the practice of monitoring telephone conversations, either in real-time or recording them for later analysis. It involves intercepting and listening to conversations conducted over telephone lines or other communication networks without the knowledge or consent of the individuals being monitored.

Telephonic surveillance has been used for various purposes, including law enforcement and intelligence gathering. Here are a few key points about telephonic surveillance:

Investigations by law enforcement agencies Intelligence Gathering: Telephonic surveillance is frequently used by law enforcement agencies and by Intelligence agencies as a tool to investigate criminal activities and to gather information related to national security threats, espionage, and other sensitive matters respectively. This can include activities related to organized crime, terrorism, drug trafficking, financial fraud, and more. Law enforcement agencies typically obtain legal authorization, such as a Ministry approval, before conducting wiretaps. These agencies may operate under specific legal frameworks and oversight to ensure that the surveillance is carried out within the bounds of the law.

Legal Framework and Ethical and Privacy Concerns: In many countries, telephonic surveillance is subject to legal regulations and oversight. These regulations are designed to balance the need for surveillance with individual privacy rights. Law enforcement agencies typically need to provide evidence and obtain approval from a court before conducting wiretaps. Telephonic surveillance raises ethical and privacy concerns, as it involves the potential invasion of individuals' private communications. Striking a balance between the legitimate need for surveillance and protecting individual rights is an ongoing challenge.

It's important to note that advances in technology and changes in communication methods continue to shape the way surveillance is conducted and regulated.

In India, a delicate balance between surveillance and individual rights is depicted in the Indian Telegraph Act, 1885 (“ITA” hereinafter), which, despite its antiquity, continues to govern telephonic surveillance conducted by the State.

This balance is essential as it must uphold both reasonability and public safety. Section 5 of ITA, empowers the Central Government, State Government, or any authorized officer to issue interception orders for the purpose of telephone-tapping. However, such orders are subject to specific conditions, such as a public emergency or when it is in the interest of public safety, and is aimed at protecting the sovereignty, integrity, and security of the State.

The aforesaid balance is further fortified by the Indian Telegraph Rules 2007, Rule 419-A which governs the administrative procedure of such interception. The Review Committee under rule 419-A(16) examines the interception orders passed to initiate surveillance and further assesses if the continued interception is necessary or not through Sub-rule 17.

Precedential Law plays a vital role in further strengthening the legal boundaries. In a recent judgment titled Jatinder Pal Singh v. CBI (2022), the Delhi High Court examined the procedure for interception and recognised the same in light of the PUCL judgement and found that due process had not been followed, rendering intercepted call records inadmissible by observing that,

“(…)tape records of the calls intercepted in the instant case are not admissible since the due procedure for such interception as mandated by the Telegraph Act and the Rules framed thereunder has not been followed”. Similarly, the Court in Vinit Kumar v. CBI, (2019), stressed that exercise of restrictions on the fundamental right of privacy must take place within the ‘regime of law’. The Court explained the term ‘Public Safety’ as a state or condition of freedom from danger or risk for the people at large. The court further held, “Neither the occurrence of public emergency nor the interest of public safety are secretive conditions or situations. Either of the situation would be apparent to a reasonable person.”

In light of the aforementioned legal paradigm, a three-fold argument emerges against illegal telephone tapping.

Firstly, the initial order must be well-reasoned, avoiding mechanistic issuance and instead rooted in a proper case assessment. Secondly, the competent authority must promptly forward the same to the relevant Review Committee within 7 working days. And thirdly, the concerned Review Committee must scrutinize the order to ascertain whether it aligns with the provisions of the law and satisfies the necessity for such phone tapping.

Recently, Rajasthan High Court, in Shashikant Joshi v State of Rajasthan (2023) observed that an interception order which is not submitted to the review committee within the statutory period for its validation cannot be considered as valid evidence and, in doing so, would be in violation of mandatory provisions of the law. The Court stressed the importance of a well-reasoned order, which should not only guide the review committee orders when validating interception orders but must also, in accordance with Rule 419-A(3), provide reasons as to why obtaining the necessary information through other means was not feasible and thus ensuring that interception orders are not casually issued.

In as much as the reasons are well defined, that is, sovereignty, integrity, security, friendly relations with foreign states, public order, and preventing incitement to offense (K.L.D. Nagasree v. Govt. of India, MHA, N.D. & Ors 2007); establishing a robust and accountable framework for telephone-tapping is the need of the hour. Due process and oversight in the implementation of interception orders must strike a balance and when this balance falters, safeguarding individual liberty becomes paramount.

The comprehensiveness of the interception order was discussed in Santosh Kumar v. Union of India, and the surveillance order therein were upheld. Since the minutes of the meeting of the review committee did not have any ‘functional requirement’, it was therefore observed that its destruction as under Rule 18 was justified. Moreover, ‘disclosure of elaborate reasons’ would be against the public safety mechanism followed by State machinery which intends to maintain ‘secrecy, the utmost care, and precaution’.

In the aforesaid case, this interpretation, as evident from the affidavit filed by the Ministry of Home Affairs as well as the observation of Delhi High Court, aligns to mean that such destruction is permissible if the same is no longer required by the authorized agency, that is, the Review Committee.

However, this interpretation leaves room for disparity when ongoing cases against accused individuals exist. Whether pending litigation falls within the ambit of a functional requirement or not is a point that warrants clarification.  The concomitant administrative action emanating from such surveillance order is subject to scrutiny by various courts of the country and a broader conception on the subject can only be expected.

The landscape of telephonic surveillance reflects the ongoing challenge of balancing security needs with individual rights. Evolving legal frameworks attempt to keep pace with technological advancements while protecting privacy and due process. Ethical concerns highlight the importance of transparency and safeguards against misuse. Achieving the right equilibrium requires collaboration among policymakers, legal experts, technologists, and advocates. The intricate nature of telephonic surveillance calls for thoughtful decision-making to ensure a future where security and privacy coexist.

As we contemplate the intricate tapestry of telephonic surveillance—a weave of legal, ethical, and privacy dimensions—we must recognize that the choices we make today will reverberate through the archives of history. Only by acknowledging the multifaceted nature of this issue can we endeavor to design a future where security and liberty harmonize, fostering a society that thrives on both protection and the inherent rights of its members.

About the authors: Harsh K. Sharma is the Founder & Head of Prosoll Law. Vaibhavi Sharma is an Associate Partner and Bhumika Yadav is a Senior Associate at the Firm.