The Department of Personnel and Training (DoPT) has proposed bringing intelligence and law enforcement agencies under the ambit of the Privacy Bill, much against their wishes. The Bill, if cleared, would make these agencies accountable in case of unauthorised phone tapping and its subsequent leakage.
For instance, government spies may face criminal charges or even jail terms, if there is a repetition of an event similar to the broadcast of the infamous Niira Radia tapes.
However, the move has a flip side - the person offended has to establish himself of impeccable repute and identity the culprit, before pressing criminal and defamation charges. Given the clandestine world in which intelligence and law enforcement agencies operate, it is nearly impossible to identify a rogue sleuth or agency; so far, the government has failed to identify the source behind the leakage of the Radia tapes.
Private persons are barred from intercepting and recording telephone calls.
The DoPT, which works under the Prime Minister's Office, has also sought to put an end to the practice of intrusive surveillance or covert human intelligence by private detective agencies and individuals. This means eavesdropping and capturing someone on camera without his/her consent and knowledge would become a criminal offence.
After due deliberations with various stakeholders for about two years, the department has submitted a revised draft to the Union law ministry. Though the move may bring a sense of relief to the champions of privacy, it is likely to face severe opposition from security agencies and private sleuths, who currently escape all legal dragnets, as the Private Detective Agency (Regulation) Bill, 2007, is pending in the Rajya Sabha.
Once the law ministry is through with it, the Privacy Bill would be sent to the Union cabinet.
"At this stage, we are expecting bitter opposition from law enforcement agencies," a senior government official involved with the Bill said, adding, "Everyone acknowledges the need for lawful interception. So, we have allowed it in the Privacy Bill, subject to greater accountability."
The official claimed the DoPT had tried to strike a fine balance between the needs of security agencies and privacy concerns of citizens. Currently, the power to legally intercept telephone calls, emails and messages vests under the various provisions of the Telegraph and Wireless Act and the Information Technology Act. The Union home secretary (in the case of central agencies) and state home secretaries (for respective police forces) grants the permission to intercept.
What has led to apprehension is the fact that once the privacy Bill is cleared, it is expected to override the existing Acts. "Everyone is worried about the legal complications arising out of it. There should be enough safeguards for those authorised to collect intelligence," said D C Pathak, former director of the Intelligence Bureau.
The agencies had favoured continuing with the old system, riddled with loopholes, and had suggested a waiver similar to the one on the Right to Information (RTI) Act, arguing even the Constitution provided scope of lawful interception, for which the Supreme Court had spelt out guidelines.
Intelligence agencies such as the Intelligence Bureau, the Research and Analysis Wing, the Central Bureau of Investigation, the National Investigation Agency, the National Intelligence Grid and the National Technical Research Organisation are exempted from sharing information under the RTI Act. These agencies fear under the Privacy Act, they would become the targets of activists, as well as those with ulterior motives.
Senior home ministry officials believe once the Central Monitoring System (CMS) is operational, chances of leakages would be close to nil. The new system is expected to generate electronic records of each intercepted call, plug all existing loopholes and reduce human interface drastically.
The senior official quoted earlier said interception wasn't the bone of contention. "There is still room to accommodate their concerns. The final decision rests with the prime minister. The real problem is of surveillance."
The Bill prohibits intrusive, direct or covert human intelligence surveillance. It means an offence would be construed if a person, on residential premises or in private vehicles, is put under surveillance through devices. Residential premises could be flats, hotel bedrooms or suites. However, this wouldn't be applicable to areas such as hotel lobbies, common stairways, dining rooms and reception areas.
As intrusive surveillance is carried out by both government and private agencies, the Bill has a few grey areas, in terms of implementation. While the government is forced to walk a tightrope on addressing the concerns of its agencies and, at the same time, protecting an individual's privacy, the decision is likely to serve a blow to private detective agencies.
"It will adversely impact private detective agencies and society at large. With a ban on covert intelligence, it will become difficult to carry out background checks of potential employees and couples tying nuptials. On the other side, such work will become more secretive," said Kunwar Vikram Singh, chairman of the All India Private Detectives Association. About five thousand agencies operated in the country, he said. "The annual business of these agencies could be worth a couple of thousand crores, and these will suffer loses."
The DoPT intends to solicit public comments before introducing the Bill in Parliament. "The Bill still needed to be fine-tuned. We have already accepted most of the recommendations of the A P Shah committee."
The panel, which comprised members of the private industry, was set up in the wake of the government's move to set up new agencies such as the National Intelligence Grid, the Unique Identification Authority of India and the CMS. The committee had suggested guidelines for collecting, processing and safeguarding data.