India: Notice Issued On Pil Seeking Guidelines On Tracing, Tapping And Surveillance Of Phone Calls – Delhi High Court

Last Updated: 26 March 2019
Article by S.S. Rana & Co. Advocates

A petition was filed by Advocate Sarthak Chaturvedi before the Delhi High Court against Union of India & Ors., whereby a direction was sought to the Central Bureau of Investigation (CBI) for framing comprehensive guidelines regarding tracing, tapping and surveillance of phone calls along with preparation of stocks and accountability of officials and setting up of a Special Investigation Team (SIT). The petition alleged that the illegal act of "abuse of power" was committed by some public servants working in the agency "for their ulterior motive".

In the said petition, a bench of Chief Justice Rajendra Menon and Justice V K Rao issued notice to CBI and sought response from the Centre on a plea seeking setting up of an Special Investigation Team (SIT) to investigate alleged illegal phone tapping of National Security Advisor (NSA) Ajit Doval by the Central Bureau of Investigation (CBI). Union of India (hereinafter referred to as 'Respondent No.1') is, responsible for the safety, security and welfare of nation and its citizen and CBI (hereinafter referred to as 'Respondent No. 2') is a premier investigative agency of the Country.

The unit involved in phone tapping and technical surveillance in the Central Bureau for Investigation (CBI) is known as the Special Unit and is headed by DIG rank official. In the Public Interest Litigation petition, it was alleged that some CBI officials had abused their powers by violating the existing guidelines on phone tapping and surveillance. It was alleged that phone numbers of several CBI officials were tapped under technical surveillance.

The first question which was raised in the petition was that whether any permission was obtained as per rules for such surveillance? It was alleged that Special Unit had time and again placed several numbers on technical surveillance and was also analyzing call data records. As per the petition it had been perused that "On October 17, 2018 the Director CBI briefed Sh. Ajit Doval, NSA and informed him that Sh. Rakesh Asthana's name is cited in the FIR. Subsequently on the same night, it was informed by Special Unit to Sh. Manish Sinha that NSA has informed Sh. Rakesh Asthana about registration of FIR. It was informed that Sh. Rakesh Asthana reportedly made a request to NSA that he should not be arrested." To the said statement, it was questioned from the Court that how did the SU learnt about it? It was questioned whether did they illegally intercept calls of NSA and Sh. Rakesh Asthana?

It was stated in the petition that such an act was violative of Section 5(2) of The Indian Telegraph Act, 1885, which lays down the circumstances under which the tracing, tapping and surveillance of phone calls and messages are governed in India. The law is amply clear that a message or phone call should be put on surveillance or interception only in case of public emergency or in the interest of public safety with prior sanction of Government. It was alleged in the petition that the right to hold a telephone conversation in the privacy of one's home or office without interference was "right to privacy". Telephone-tapping would infract Article 21 of the Constitution of India unless it was permitted under the procedure established by law. It was contended that various series of events disclosed in the Petition would make it apparent that UOI having capacity of framing polices and guidelines, have not formulated stringent policy or action plan or guidelines to deal with the menace of tracing, tapping and surveillance of phone calls being done by CBI or any such other public offices, which directly and indirectly effects the national security and intelligence which in turn was going to put the lives and security of nation and it's citizen thereto at peril.

On the rummaging the entire petition, the Division Bench of the Delhi High Court had issued notice to the CBI and the Centre and sought their reply against the allegations with regard to the abuse of power by CBI by illegally tapping the phone of high rank officials.

The court listed the matter for further hearing on March 26. It would be interesting to see what happens next in the case.

For further information please contact at S.S Rana & Co. email: info@ssrana.in or call at (+91- 11 4012 3000). Our website can be accessed at www.ssrana.in

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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