'The Absence Of Denial Is Almost An Implicit Admission'

This matter of public interest arises out of two news reports which have recently appeared in different sections of the media.

The first report indicated the specific dates and details that the telephones of four prominent politicians of this country were bugged by a bugging equipment which has been purchased by and is under the control of a very sensitive Department of this Government. The report also indicated that the nature of the equipment is such and the technology is so sophisticated that it can be used on a mobile vehicle and, therefore, when it is used on a mobile vehicle, phones within a radius of 20 kilometres of that vehicle can come within the bugging ambit, as far as this equipment is concerned.

The second report in a daily newspaper yesterday indicated that independently the Government had also, through one of its Departments, bugged the telephones of a certain public relations or lobbying agency in order to keep a vigil on the activities of this agency. The Government has responded to both these reports. In fact, the first response of the Government with regard to the report of the bugging of phones of the four senior politicians came in this House itself in a statement of the Home Minister. In both the responses, Sir, after reading carefully those responses, I have no hesitation in saying that the Government has been extremely economical in the use of its language. And obviously, it has also been very economical with the truth as far as this matter is concerned. 

Responding to the report in a magazine, the Home Minister, in this House on the 26th of April said, 

"I wish to categorically state that no telephone tapping or eavesdropping on political leaders was authorized -- I underline the word 'authorized' -- by the previous UPA Government, nor has the present UPA Government authorized any such activity". 

It is a very carefully worded statement. The Home Minister says, "He has not or his Government has not authorized the tapping of any telephone". He is conspicuously silent on the fact that actually no tapping has taken place. He does not say that tapping has taken place or not taken place. He does not make any comment on that. He does not dispute the fact that none of those four senior politicians, some of whom have made public statements, have actually denied the conversations attributed to them. None of those four have denied that they never participated in the conversations which are attributed to them. None of the conversations are such which, in any way, embarrass those politicians. So the Home Minister says, "The Government did not authorize it". He fails to say that actually no tapping has taken place. 

In fact, with regard to the second report the denial issued yesterday by the Ministry of Finance even makes a very interesting reading. It makes a limited denial that no telephones of influential businessmen, politicians or advertising professionals were tapped. It fails to mention whether the phones of the concerned lobbyist firm or its executives or the PR Agency, were tapped or not, the statement is again silent. It then goes on to say, "It is further clarified that the Income Tax Department does not intercept telephonic conversations except as authorized under law. The provision is used in rare and exceptional cases of suspected tax fraud/evasion involving security of the State".

[Home minister P.Chidambaram intervenes to say: 'It is fraud or invasion']

Let me read it again. It says, 

"The provision is used in rare and exceptional cases of suspected tax fraud/invasion involving security of the State". 

Therefore, the Taxation Department, when it comes to a conclusion that there is a tax fraud which also impinges upon the national security, it is only then that tapping of telephone calls is permitted.

Sir, as I have mentioned, both statements are extremely economical as far as the choice of words is concerned. They make a limited denial and fail to deny what the crux of the allegation is, as far as both the tape recordings are concerned. The first statement of the Home Minister does not deny that the tapping, actually, took place. He merely says, "We did not authorize it." The second statement says, "We did not tape industrialists; we did not tape politicians; we did not tape advertising professionals." 

As for concerned individuals, whose recordings are mentioned, I think, the absence of denial is almost an implicit admission, and perhaps, the Government wants to indicate that the second case was one of an authorized tapping. Sir, this leads to a larger question of what the power of the Government is. I am raising this question squarely because in recent months and years, we have seen how the investigative and intelligence arms of this Government being repeatedly, grossly misused. 

As far as the investigative arm, CBI, of the Central Government is concerned, we have, repeatedly, said that it has become amongst the most abused institution as far as this country is concerned. It follows three sets of standards. If it is the UPA Members or the friends of the UPA, you whitewash the whole case; you cover up the whole case; you close the case. If it is opponents of the UPA, you become vindictive as far as the use of this agency is concerned. And, if it is the third category, -- I need not elaborate on the third category -- you keep the sword hanging and use the sword whenever it is required by you as far as the numbers game is concerned. This has repeatedly happened and that is how you have repeatedly used the investigative arm of this Government. 

This being the track record of the UPA, the use of intelligence agencies for the purposes of recording conversations and bugging telephones is a subject which acquires extreme importance. Let us not forget; we are a society governed by the rule of law. And, as a society governed by the rule of law, the Home Minister himself, present here to answer this debate is a very eminent lawyer himself. In our Constitutional scheme, he will appreciate that privacy is now recognized as an integral part of individual liberty. The right to privacy, which is a right to be left alone, which is a right not to be interfered by others by eavesdropping, by bugging, this can only be infringed by a machinery which is provided by law. This cannot be infringed in a manner which is wholly unauthorized. But what appears to be happening now is that in a completely unauthorized manner, there is a system, where an individual's liberty can be eroded, phones can be indefinitely bugged, and the Government can put on an innocent face and say, "Look; I did not authorize it, or, the technology now is such that it starts bugging in spite of my orders." Is that what you are really aiming at? Sir, let us not forget that if privacy, a right not to be bugged, a right not to be eavesdropped, is a part of an individual's Constitutional guarantee, the condition, precedent in our law and in our Constitutional scheme for infringing that right is, we are still governed by the Indian Telegraphs Act of 1885. It is a pre-Constitutional law. But the pre-Constitutional law laid down specific limitation in which you could have interception of messages on telephonic communication.

There is no absolute power with the Government. There is no such power to say that so and so is an offender and, therefore, I am entitled to bug his phone. You cannot even say that somebody is a likely economic offender. You cannot say that somebody is a bad character and, so, you would bug his phone. The condition is, and I am reading just the relevant words from Section 5(2) of the Indian Telegraph Act which says, 

"On the occurrence of any public emergency, or in the interest of public safety, the Central Government or a State Government or an authorized officer can intercept phones." 

And, then, other conditions are mentioned. Your power is limited, your power is not absolute. You cannot infringe upon the liberty of a citizen by saying that my vehicle carrying an equipment was driving fast and I, by mistake, bugged somebody else's phone. Then, the technology you have purchased dismantles the Indian Constitution. The condition precedent is that there must either be a state of public emergency, or, the bugging must be in the interest of public safety. It is only in these two emergency situations that you get any right as far as telephonic bugging is concerned. If these two conditions are not made out, merely because somebody is a suspected offender, or, somebody wants to destabilize the Government, or, somebody wants to have a discussion on the nuclear deal which you may not like, these are not grounds for bugging somebody's telephones. Is it the Government's case that the situation in the country today is such that we are in a state of public emergency? Is it your case that public safety requires that the phones of these four senior politicians should be tape-recorded and bugged? If this is not the condition, then, obviously, you cannot have a situation where telephonic conversations of any politician, or, any other citizen for that matter, even if he is a lesser mortal, can at all be bugged. Now, this issue, 

Sir, is not merely the letter of law. In the early 1990s, a news report appeared in a magazine called the Mainstream giving details of some telephone bugging which had taken place in 1991. This was taken note of. One of our civil liberties bodies, the PUCL, moved the Supreme Court. The Supreme Court, while analyzing this provision, laid a limitation on the powers of the Government and they said that as far as bugging was concerned -- I am just reading one sentence for the Home Minister's advantage; but I am sure he knows it better than me:

"Section 5(2) of the Act permits interception of messages in accordance with the provisions of the said Section. Occurrence of a public emergency, or, the interest of public safety are a sine qua non for the application of this provision". 

If these two conditions are not made out, you cannot bug anybody's phone calls. Now, this seems to be the situation as far as our Constitutional protection is concerned. 

Now, what have we done in the process? In the process, we have now authorized in the Government, seven different agencies for bugging telephones. You have the Intelligence Bureau. You have the Central Economic Intelligence Bureau. You have the DRI. You have the CBI. You have the Narcotics Control Bureau and you have the State Police. In the first six cases, it is the Home Secretary of the Government of India who is the authorizing agency. In the last case, it is the Home Secretary of a State who is the authorizing agency. Now, in this situation, what is it that appears to have taken place? I am afraid, the Government is not being candid; the Government is not being frank about either confessing it or making a denial of this fact. Outside these seven agencies, you have the National Technical Research Organisation, the NTRO. I have not the least hesitation in saying that during UPA-I, Intelligence collection on insurgency was suffering, whether it was Jehadi terrorism or Maoist terrorism. Even today, with regard to Maoist terrorism, the state of our Intelligence is quite poor.

And the entire concentration was on what is called political espionage. This agency, the National Technical Research Organisation has purchased amongst the most sophisticated equipment. The character and nature of this equipment is, it is a mobile equipment; the equipment can be carried, depending on the two different kinds of technologies, whether it is applicable to a GSM technology, then it is an equipment which can fit into a briefcase. If it is a CDMA technology, it is a slightly larger equipment. This equipment is a mobile equipment which can go on a vehicle. And while it travels in a vehicle, it can make a clean sweep within a radius of two kilometres bugging everybody's telephone. Now, the Act says, the Constitution says, the Supreme Court says, it is only when there is a consideration of public safety or public emergency, a national security consideration that you can tape somebody's phone. The Home Secretary must make an authorization recording reasons why this phone is to be tapped. The Home Secretary will then specify the one particular number which has to be tapped. That is the constitutional provision. And you are now going in for a technology which has a complete mismatch to this entire constitutional scheme and guarantee. And the mismatch is, well I have got a technology which does not respect India's Constitution, which defies the entire constitutional protection that I have, and that technology, when it drives around the country is in a position to bug everybody else's telephone. And, therefore, while these mobile vehicles were going around, Mr. Nitish Kumar got bugged, Mr. Prakash Karat's phone got bugged, Mr. Sharad Pawar got bugged. This is what appears to me the Government's careful denial, where the Government says, "I did not authorize it". There are several questions, Sir, which will arise, and the first question is, when your agencies set this activity into motion, do they give a specific number which is required to be bugged? What is the kind of exercise they are indulging in?

Therefore, please consider this fact, Sir. When you say on this telephone tapping issue a JPC is required, you call it a JPC, you call it a Select Committee, you call any Parliamentary body is required, is this House, is Parliament entitled to re-examine this issue as to what constitutional order we are today living in? The Government of India has decided to buy a technology which does not respect the entire constitutional guarantee, which is capable of violating it. These intelligence agencies work under the cover of secrecy. Under the cover of secrecy, these intelligence agencies are not accountable to any Parliamentary institution. Recently, one of the leading Members of your Party belonging to the other House, in fact, wrote an article saying that a large number of these intelligence agencies are not a creation of the statute, and since they are not a creation of the statute, their accountability to Parliament is limited. Therefore, we don't know who else's telephones are being tapped and recorded in this whole process.

Sir, my point really is, today we reached a situation where on the one hand, you have a constitutional scheme or guarantee, which is a part of our basic Republican order where a person has a right not to be used upon or the person has a right not to be bugged. It can only be infringed on public safety or national security considerations. If that is the accepted position, then, will the Government come out with a candid response that does it have technology which does not respect this right and, therefore, this technology which it is going in for has started breaching this right in-toto?

It is not only this that has happened. A lot of it is conscious. If you look at the kind of conversation of the senior leaders which has been bugged, in some of the cases it is too much in the 'coincidence' that it is somebody's conversation on the nuclear deal, somebody else's conversation with his cricket friend, which by curious 'coincidence' got bugged! These were the conversations the Government was vitally interested. How is it that these mobile vehicles only picked up these sensitive conversations in which the Government at that particular time was keen on picking up? Was it just a coincidence? Was it the voice absorption which these machines have a capacity to do? Or, was it being consciously and deliberately done?

Let us just forget this article for a moment. What is it that is there to ensure and guarantee that if you have equipment of this kind which makes it so easy to put us all under a scanner that there is a possibility of its misuse or excessive use being eliminated? There is no presumption that the executive or the intelligence agencies at all points of time will be responsible agencies. If that is not so, let me assume, for a moment, that the Government wants a benefit of the doubt to say what the Home Minister said is correct, 'I did not authorize it, but I cannot say whether it took place or not', join the two sentences together. If the Government cannot tell us that it did not take place at all, then the next question is, who did it and how did it happen? Therefore, Sir, I think, this entire mismatch--between the kind of technology which is now evolving and our Constitutional guarantee--needs to be corrected. Is this country willing to forego its Constitutional guarantees of liberty and privacy? We all know that the answer is no, this country is not willing. Therefore, then, must there be a restraint or a regulation on the kind of technologies which is required? If such an arrangement has to be worked out, then obviously such an arrangement will have to be discussed by some expert body of Parliament-- you call it JPC, you call it Select Committee--as to how this mismatch really requires to be corrected.

The second question, Sir, which arises from the second article is really in the context of the kind of recordings which would be referred to in the article which appeared in the newspaper yesterday. Sir, I am not so sure, there are two different issues. The first issue is the kind of threat which structured lobbyists can inflict upon an honest system of governance. That is a separate independent question. The alternative question is, under your present Constitutional scheme, can even those phones be tapped on commercial considerations particularly if no threat of national security is there? I am sure, the Government has the facts. If there is a threat of national security emanating from those conversations, if there are considerations of public safety, you may well be within your rights and we need a response from the Government to this effect whether public safety considerations were there which required these phones to be bugged.

But, the second question which seems to be extremely important is, Sir, what is the willingness of Indian democracy and collectively the Indian political process for allowing these kind of structured lobbyists to influence Government politics in decision-making? Lobbying is the art of persuading a Government to come to a particular decision. Persuasion is possible on the strength of arguments, persuasion is also possible through collateral considerations. Once persuasion takes place through collateral considerations, it completely pollutes the scheme of administration.

Then, Sir, I do not know the authenticity of these reports. But even if they are somewhat authentic, and not entirely authentic, one of the conclusions I draw out of this is--I am not getting into individual Ministers, individual agencies, individual incidents-- I think, it is a system which we need to look at because if we do not look at the system, we will end in a far worse situation where some of the more developed democracies are, because they allow this system to remain unchecked. It is true if these reports are even somewhat accurate that you have lobbyists and public relation agencies working now in a structured manner with large resources. You have very senior former civil servants employed by them. You have newspapers and TV channels controlled by them and some which either directly or through their client are partly funded by them. Your bureaucrats, Ministers, politicians, MPs, editors, journalists are among those who are used by them as their instruments for this persuading activity for the Government to come to a particular decision. 

Then, Sir, I do not know the veracity, but if the veracity is accurate, schemes are being planned how a particular portfolio should be given to a particular gentleman. I thought Cabinet formation or allocation of the portfolios is the sole prerogative of the Prime Minister. In this country I can understand the limitation of alliance politics but if you have lobbyists and agencies getting into this exercise, then, probably, that is one of the worst situations that we can face as far challenge to Indian democracy is concerned. Spectrum allocation, conversation between Ministers and lobbies as to how it is to be done, are all these reports true? If they are true, then they are hugely frightening. Look at this US body where they permitted this to happen. When they permitted this to happen, I read a report in the Washington Post, 43 per cent of former Congressmen since 1998 preferred lobbying to be a more lucrative profession. I am talking of US Congressmen. Not the 'Congressmen' here. I was referring to the Congressmen that is why I said 'former' Congressmen. There are 17000 registered lobbies in one city. Then they take over the entire system. These are very serious reports, Sir, which impinge upon public life. We need a response. 

It is not an adversarial issue; it is squarely an issue which deals with governance. Sir, I have only on the basis of this, two requests to the Government. On the second issue my request is that please do not treat this as an adversarial issue. It is a threat to the Indian political system. It has lowered the legitimacy of parliamentary democracy of India and decision-making if this tendency goes on. We need a response from the Government to satisfy the public opinion in India that this situation is not going out of control, the Government will act and take appropriate measures. But on the first issue, I think, you require it not because an individual instance has to be investigated. The new horizons of technology on telephone bugging, the functioning of our intelligence agencies, their ability to use and misuse the investigative and intelligence process for intelligence collection and that may completely violate the basic tenets of our Constitution and law and deprive individuals of their privacy, their liberty, the mismatch of this has to be resolved and that can only be resolved by the Parliament looking into it. Therefore, a Joint Parliamentary Committee or a Select Committee, whichever name you call it, any parliamentary body, with a sense of responsibility goes into the situation so that-- this Government or any successive Government-- our house is put in order and this kind of a misuse does not take place.

I appeal to the Government not to treat this purely as an adversarial issue. This is an issue which relates to the system of our Parliamentary democracy and the freedom of our citizens and the Government should seriously consider this in the light of the present situation which throws up somewhat frightening consequences.