Worried that your phone might be tracked? Here's what Trai has to say

When the spectre of dragnet online surveillance and grave violations of privacy looms large over India’s citizens, here is some news for cheer for those opposed to government surveillance.

In a decision which was recently uploaded, the Delhi high court held that the Telecom Regulatory Authority of India (TRAI) has to disclose, under the provisions of the RTI Act, information to a citizen whether his phone was under surveillance mounted by Vodafone – a private telephone services provider – on orders of the government.

Justice Suresh Kait held on 20 November that TRAI, being the regulatory authority of telecom service providers and a public authority under the RTI Act, could not prohibit the disclosure of such information.

This ruling is a victory for the RTI Act, and safeguards citizens’ privacy from the depredations of private sector organisations who try to obfuscate the release of sensitive information.

Facts of the case

Kabir Shankar Bose, a barrister practising in the Supreme Court, approached Vodafone with a specific query: Whether his phone was being tapped or placed under surveillance. Vodafone refused to disclose the information, saying it was not a public authority under Section 2(h) of the RTI Act,  upon which the petitioner approached TRAI.

He contended that that as per Section 12 of the TRAI Act, it can call upon any service provider at any time to furnish in writing such information or explanation relating to its affairs as the Authority may require. TRAI also has the power to issue such directions to service providers as it may consider necessary for proper functioning of service providers.

TRAI refused to provide this information, and having exhausted his chain of appeals, Bose approached the Central Information Commission (CIC), which by an order dated 12 September 2018, directed TRAI to obtain the information from the service provider and furnish it to him.

Dissatisfied with this ruling, TRAI approached the Single Bench of the Delhi high court.

The court’s reasoning

Before Justice Kait’s bench, TRAI contended that although it was a public authority according to the definition in Section 2(h) of the RTI Act, Bose ought to have approached the authority provided under Telecom Consumer Complaint Redressal Regulations, 2012 for information on whether his phone had been placed under surveillance and on the orders of which agency, as it itself doesn’t maintain records of such information.

The court framed the issue like this:

“Whether information which is not available with the public authority can be provided as per the [RTI] Act and as per the settled law if the information is not with the Public Authority, the said authority is not obliged to provide the information.”

In its response, TRAI cited the case of CBSE v Aditya Bandyopadhay, particularly paragraph 63 to argue against the furnishing of information to Bose. In that case, the Supreme Court held:

“But where the information sought is not a part of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non- available information and then furnish it to an applicant.”

Going further, in paragraph 67 the court commented:

“Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counterproductive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non-productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility and  harmony among its citizens.

Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritising 'information furnishing’, at the cost of their normal and regular duties.”

However, TRAI did not mention that this ruling of the Supreme Court which mandated that CBSE was not obliged to provide information about answer sheets of candidates, had been overturned in a subsequent decision of the same court in 2016.

Disregarding the arguments of TRAI, the high court relied on its own reported decision in Poorna Prajna Public School Vs. Central Information Commission & Ors. [ WP(C). No. 7265/2018 decided on 25.09.2018] to hold that:

“The RTI Act includes in its ambit, the information relating to any private body which can be accessed by public authority under any law for the time being in force. Therefore, if a public authority has a right and is entitled to access information from a private body, under any other law, it is ‘information’ as defined in Section 2(f) of the RTI Act.

The term ‘held by the or under the control of the public authority’ used in Section 2(j) of the RTI Act will include information which the public authority is entitled to access under any other law from a private body.” (emphasis supplied)

The court further held that since TRAI is regulating the services of Vodafone and other telecom service providers in India, under Section 12 of the TRAI Act, 1997, it has the power to call for any information, conduct investigations, etc., where, it, as the regulating authority considers it expedient so to do, it may by order in writing.

Thus, it is clear that Justice Kait of the high court did not allow TRAI to get away with the flimsy excuse that it does not maintain records of the surveillance activities of telecom service providers, or that it lacks the wherewithal to summon such information if required.

The national security argument, TRAI’s responsibility

As reported, on December 19, TRAI has challenged the single bench ruling before a division bench of Chief Justice Rajendra Menon and Justice V.K. Rao that phone tapping was carried out by law enforcement agencies and this information cannot be accessed by it from the service providers.

Moreover, accessing such information and then disclosing it to the public would imperil national security, the regulatory body has contended.

For his part, Bose has agreed not to prosecute TRAI for contempt for not following the single bench’s directive, and has said he will provide his response on January 16, 2019 – the next date of hearing.

However, at this juncture one needs to question the national security shibboleth which is used to impinge upon a citizen’s privacy, especially after the Puttuswamy ruling of the Supreme Court, which although does not explicitly extend the horizontal responsibility for breaching privacy on to non-state actors, makes out a case for doing so if it is ruled in subsequent decisions of the apex court, or if the government brings in an appropriate data protection law which guards against dragnet surveillance without citizens getting any wind of it, or sans any accountability.

It also needs to be noted that TRAI, which is the regulating authority for telecom service providers, should not be squeamish about cracking the whip against such entities, especially when such a key fundamental right as privacy is concerned.

Now it is up to the Delhi high court’s division bench to decide whether it would fall for TRAI’s pusillanimity or protect citizens’ privacy.

Saurav Datta divides his time between legal education and journalism and between Bombay and Delhi.

Published in arrangement with The Wire