No Legal Sanction For Phone Tapping

Bombay Dyeing chairman Nusli Wadia can sue the government for violation of privacy if the enquiry sought by the home ministry reveals that his phone was tapped without proper government clearance.

Disciplinary action can also be taken against any department of telecom officials who may have connived with the agency which sought the telephone tap. The identity of the person behind the telephone tapping episode is not yet clear, with home secretary K Padmanabhaiah denying involvement.

Law enforcement officials said under existing norms, a telephone tap can be ordered only on personal request by the phones owner. In cases where national security is at stake, a telephone tap can be ordered only by the home secretary. Alternatively, at the home secretarys instance, the power can be delegated to another home ministry official, who must hold the rank of at least joint secretary.

These norms are drawn from a December 1996 Supreme Court judgement. A division bench consisting of Justice Kuldip Singh and Justice S Saghir Ahmed had ruled that telephone tapping is a serious invasion of an individuals privacy. The bench had ruled that an order for telephone tapping under section 5 (2) of the Indian Telegraph Act, 1885, can be issued only by the Union home secretary or his state counterparts. In urgent cases, the power may be delegated to an officer in the home department not below the rank of joint secretary.

The apex court had also ruled that if a telephone tap is ordered, the copy of such an order should be forwarded to a committee constituted primarily to review the validity of such taps. The review committee is constituted under the chairmanship of the cabinet secretary and includes two other members, namely the law secretary and the secretary, department of telecom (DoT). If this committee finds that the justification for the telephone tap is insufficient, it can intercept and destroy the original and copies of the tapes made by the investigating agency.

The court had also categorically stated that these guidelines were an interim arrangement and would exist only till the Centre formulated regulations for telephone tapping under section 5 (2) of the Telegraph Act. Though the Act provides for wire tapping, rules for telephone tapping have never been formulated by the government.

The status of the review committee is not known at present. While cabinet secretary T S R Subramanian is on tour, law secretary V K Agarwal was unavailable for comment since he had returned from a tour to Vienna only yesterday.