Should violations of tax, anti-corruption laws be subject to surveillance?

A recent Bombay High Court order (October 22) brings a renewed focus on a telephonic interception in the interest of public safety in the post Puttuswamy era. The court ruled that surveillance carried out under the Telegraph Act by the Central Bureau of Investigation (CBI) against a Mumbai-based businessman accused of paying a bribe to a bank official was illegal and ordered for the destruction of three impugned interceptions. Though the interceptions were duly approved by the home secretary, the court strongly came down upon the CBI for the diverse stand taken regarding the compliance of rules for using these interceptions as evidence in prosecution proceedings before the trial court from time to time. 

Based on the facts, affidavits, and charge-sheet filed, the court found no threat to public safety and ruled that “it was impermissible to take resort to telephone tapping”. The Puttuswamy order laid down the proposition that illegal tapping of telephonic conversation violates right to privacy and this order has put to practice the said mandate.

Interceptions in India today are authorised by eight central enforcement agencies for a spectrum of issues, ranging from terrorism to money laundering, corruption to drug trafficking, smuggling to tax evasion, and terror financing to internal security, and is a complex area that deserves delicate balancing between individual rights and public interest. This case reignites the need for surveillance reforms and the necessity to focus on three pivotal issues: Is it time to revisit the colonial-era Telegraph Act, 1885, and legislate afresh to accommodate the changing nature of technological modalities? Should there be a uniform mechanism across India by way delegated legislation to streamline surveillance procedures to avoid any misuse? Should violations of tax and anti-corruption laws be subject to surveillance? 

The Telegraph Act, starting with the definitions prescribed in it, represents the relics of a bygone era and have not been amended to represent the digital age of encryption. Undisputably, new legislation with an adequately sophisticated system to carry out uniform surveillance across India on matters of intelligence and investigation is inevitable. 

At the heart of this surveillance on tax evasion and corruption debate are two fundamental questions: Do these acts constitute a threat to public safety to warrant the infringement of right of individuals to privately indulge in telephonic conversations? Do they pose an inherent danger or risk for the people at large to necessitate scanning under authorized tapping? 

The Bombay bomb blasts of 1993, the scars of which are evident even today in the psyche of our maximum city, is a testimony to how corruption leads to a complete collapse of our system. The apex court held that public officials -- police, customs and coast guard -- in pursuit of personal gratification, subdued public interest. The frightening ramifications on public safety, in this case, cannot be undermined as the blasts could have otherwise definitely been averted. The fact is none of the public officials probably knew the nefarious designs of the smugglers and terrorists, but that is not an excuse for condoning their act of corruption. The moot question is – where do you draw the line and do we treat all acts of bribery with the same yardstick? Is it possible to evolve gradations in the corruption index to categorize them accordingly? These are difficult questions, especially when what is at stake are the security concerns of our society.   

The leak of the Radia tapes, interceptions by income tax authorities in 2010, rocked the political landscape and the collective conscience of our democracy exposing the deep-rooted entrenchments between the political-judicial-bureaucratic-corporate-media networks. Radia tapes converted the subdued whispers in the power corridors into a nationwide debate on probity in public life versus privacy of certain individuals. Petitions demanding disclosure of the 5000-odd conversations in public interest is presently pending adjudication before the apex court. Furthermore, is there a stark distinction between an individual tax violation and an organised loot of public money which gravely impacts common interest?

Indian courts have generally exercised restraint on matters concerning surveillance squaring the onus on the executive to initiate surveillance reforms. While the romanticism with civil rights jurisprudence in the context of the right to privacy is understandable, a robust surveillance system strongly grounded in the constitutional scheme is very necessary now. PUCL case that emanated from the misuse of surveillance on politicians led to the apex court laying guidelines in this regard and Puttuswamy traversed the path on the fundamental right to privacy on surveillance matters. Post Puttuswamy, India needs a primarily structural debate on the nature, scope and extent of surveillance, the responsibility of law enforcement agencies and lastly, the issue of whether these agencies empowered to indulge in surveillance must be made accountable to Parliament? 

“Intelligence”, Sun Tzu wrote, is “the reason for the enlightened prince and wise general to conquer the enemy”. There is a storm in the surveillance institution of India. There is a need to fix it before the foundation trembles and the structure falls. 

The writer is a Delhi-based lawyer who previously worked for the Government of India. Views are personal.