'Committed To The Right To Privacy And The Right To Liberty'

What provoked this debate was an article in a magazine, followed by an article in a newspaper. And, from that, the Leader of the Opposition and some other Members have abstracted an issue and have raised this debate; I welcome the debate. In fact, my desire is that the debate should have been kept at that abstract level on the issues involved rather than get bogged down into the facts relating to a particular case or a particular person or a particular occasion. Because, I think, what is involved here is a grave principle that can well demolish many pillars of our democracy if we do not collectively address it with the seriousness with which it should be addressed. 

Sir, Article 21 of the Constitution in my view is the bedrock on which the democratic structure of India has been erected. It is to secure the life and personal liberty of every citizen for which Mahatma Gandhi and other freedom fighters led this country in the great struggle against British colonialism. Let us remember there are many other countries which acquired freedom or achieved freedom without the guarantee of Article 21. India is among the few countries which enshrined Article 21 as a fundamental right to every citizen. Over the years, this article has been given contempt. 

In fact, if you go back to A.K. Gopalan's case, the law that was declared then was, liberty can be deprived as long as it is a procedure established by law. But, today, that procedure must be a reasonable procedure. Article 21 has been expanded by a series of judgements reflecting the aspirations of the people. One among them was the right to privacy. Many other rights have been now discovered in the words that are contained in Article 21. The clean environment is part of Article 21; the right to food that we are debating is a part of Article 21; the right to information is a part of Article 21; the right to clean drinking water is a part of Article 21 and the right to sanitation is part of Article 21. The right to privacy is an important right. As, I think, one of the hon. Members said, it is a right to be left alone. The State should not interfere in the lives of its citizens unless it is, absolutely, necessary. 

So, although this is an old Act, the Indian Telegraph Act, 1885, I do not think we need to rubbish this Act because it is of 1885 vintage. The Indian Penal Code is older than this Act; we do not rubbish the Indian Penal Code. The Indian Evidence Act is older than this Act; we do not rubbish the Indian Evidence Act. We read into it contemporary values, contemporary needs, contemporary norms, and, that is how we breathe life into our old Act. 

Now, the Supreme Court in the PUCL case to which the Leader of the Opposition referred, read that into section 5, sub-section 2 and set out the principles that should govern before a Government invokes the power to intercept telephone conversations what are otherwise "eavesdrop" on private conversation. Let me make it very clear the Government totally supports and underscores the principles laid down in section 5 (2) and it will be our endeavour to ensure that the procedural safeguards suggested by the Supreme Court and which we have incorporated in rules made in 2007 are further strengthened.

In fact, it will be our endeavour to add to the rules already made under Section 7 in order to strengthen the safeguards embodied in Section 5, sub-Section (2). So, rules were made in 2007 under Section 7. If those rules are inadequate and have not kept pace with the changing technology, we will amend those rules, we will add to those rules, we will bring in more procedural safeguards to take care of advanced technology. Let there be no doubt in anyone's mind that this Government is committed to the right to privacy and the right to liberty. 

Having said that, let us not understate the grave threats that this country faces. We have the threat of terrorism, cross-border terrorism; we have cyber crime. Our adversaries or those who do not have the interest of this country at heart are equally adept in employing technology. If they are adept in employing technology, the State should be equally adept in mastering the technology in order to be able to counter it. Intelligence gathering is an important part of any Government's functioning. No Government can function without gathering intelligence. There are many kinds of intelligence, one of which is well known and that is the human intelligence. Another is, signal intelligence, and gathering signal intelligence is a part of the duties of Government. That is why in 2001, a Group of Ministers recommended the setting up of the NTRO, and, I am sure, the Leader of the Opposition is familiar with the background under which the NTRO was set up. 

The NTRO was set up by a Group of Ministers constituted by the NDA Government. The recommendation of the Group of Ministers was accepted by the Cabinet of the NDA Government and the NTRO itself was notified on the 15th of April, 2004 when the NDA Government was in office. So, the NTRO is not an invention of the UPA Government. The NTRO was in place when the UPA Government assumed office and for whatever reason, the NTRO was placed not under any Ministry. The NTRO was placed under the National Security Advisor who reports to the Prime Minister. I think it has become necessary to review the position. I have had a word with the Prime Minister. The Government is examining whether the NTRO should now be placed under a Ministry so that a Minister will be accountable to Parliament for the functioning of the NTRO. The NTRO itself has no authority to gather intelligence. The NTRO is a facilitating organization; the NTRO is a technical organization. The right to gather intelligence is vested in specified agencies listed in the Supreme Court judgment and referred to by the hon. Leader of the Opposition. The NTRO simply provides the technical capability. 

Now, it is true that technology has moved much beyond what was perhaps envisaged when the Group of Ministers met in 2001 or when the NTRO was set up in 2004. Now, when the technology moves forward very fast, we cannot lag behind; we have to acquire the technology. In fact, let me assure the hon. Members, the technology that the NTRO has is not as sophisticated as it is made out. In fact, I am privy to knowledge which I acquired recently that there are other organizations in the world which have technology far superior and many, many years ahead of the technology the NTRO has today. In fact, when I visited one of the countries, I was one of the few who was allowed full access to what they have and what I saw amazed me on the one hand, and, to some extent, frightened me on the other. That kind of technology is available among a few countries in the world. We do not have that kind of technology. The NTRO has acquired the technology. That technology must be put to use and that technology must be put to use subject to very stringent safeguards. The Leader of the Opposition said, technology bugs. Technology does not bug. It is the use of technology and the user of technology who bugs. Technology by itself does not bug anything. We have a machine. The machine does not do anything. It is how the machine is employed, where it is employed, who uses the machine and under what conditions the machine is used. We are, therefore, as I said, in the process of reviewing the entire functioning of the NTRO and putting in place safeguards that will keep pace with the technology that NTRO has acquired and, if I may say, that NTRO will acquire in the future. I cannot say that NTRO will not acquire new technology; it will acquire and it must acquire. But we must put in place safeguards that will keep pace with the technology that we may acquire in the future.

Now, Sir, coming to the question of balancing the right to privacy and the right and duty of the Government to gather intelligence and the safeguards, I completely endorse what hon. Members said. There is no partisan view here. I endorse what the Leader of the Opposition said and I endorse what other Members said. We have to constantly be on the vigil, constantly review the safeguards and procedures in place and update them so that they keep pace with the technology that we have to acquire.

Sir, an impression was created as though telephones are being tapped only in the UPA Government. I think anyone who has been in the Government knows that it is not correct. All authorized tapping -- and I can say this with complete conviction -- is authorized for no more than 60 days. Telephone interceptions can be extended again for another period of sixty days and again for another period of sixty days by the Home Secretary, who is the sole authorized officer in the Government of India for reasons to be recorded in writing on requests made by the agencies concerned. Let me also take you into confidence that the decision does not go beyond the Home Secretary. He is the sole person to take this decision. No Minister is involved in this decision. Please remember, the same power is available to the Home Secretary in the State. The discussion here seems to point a finger only at the Home Secretary in the Government of India. There are thirty other Home Secretaries in the States who have the same power. So, as you have said, and I take it in good spirit, the safeguards must be applied to the Government of India. Please remember, the same safeguards, if not stricter safeguards, must be applied to the States too. Therefore, each one of you who represents a State -- and this is the Council of States-- must carry the same message to your States to ensure that the Home Secretary in the State also abides by the same strict safeguards before he or she authorizes any telephone interception. There is no other way we can function. We have to entrust this power to someone. This power is entrusted to a high Government official and, at the State level, I believe it is entrusted to a high Government official, and the fact that they have to record reasons, maintain the records for a certain period of time, is the only safeguard that we can think of. But we are working on further safeguards. We will amend the rules. We will write further safeguards as and when the situation requires, and I think the situation does require that we must take into account changing technology.

Sir, a number of broadsides were made during the debate. I accept that without broadsides the debate can be dreary and dull. Someone said Cabinets are made by lobbyists.

I don't know. I thought sometimes in 1998 or so, if someone is appointed Finance Minister, somebody outside the Government objected to his being made Finance Minister. I think that is the biggest lobbyist I came across in 1998. The point is many things will be written and many things will be said, but one does not have to believe everything that is said and everything that is written. There is Prime Minister who makes the Cabinet. Simply because two people are reported to have discussed who should be a Minister and who should not be a Minister does not mean that the Prime Minister does not make the Cabinet. But the larger point that the Leader of the Opposition made is valid. What is the place of lobbyists in Indian democracy? In the US, lobbyists are registered. I know former Secretary of State is a registered lobbyist, former Secretary of Defence is a registered lobbyist. We did not encourage lobbyists. In fact, we ruled out middlemen even in our Defence purchases and other purchases because we are frightened by these middlemen. What do we do with lobbyists? What do we do with people who lobby for contracts, lobby for commercial deeds? We have to consider that. In fact, as our economy grows, larger and larger commercial transactions run into thousands and thousands of crores, it is necessary to look into the issue. What do we do with lobbyists, people who lobby? These are grave issues which have to be addressed. But I take the point. It is not as though we are not exercised by the point and we are not concerned with the point. We take the point and we will address these issues. Let us not assume that the whole Government is run by lobbyists or run by middlemen. That is completely untrue. Sir, I agree that this is not an adversarial issue; this is an important issue. 

How have we addressed the problem so far? I am afraid the Leader of the Opposition was being economical with justice and fairplay towards me if he did not read the last paragraph of my statement which my friend, Sitaram Yechury, read out possibly because of his association with us for four years in the Government.

How did we deal with this problem? I said categorically that there was no authorized tapping of any politician's telephone. I stand by that statement. I have asked the Home Secretary, "You tell me after looking at all the records whether any politician's telephone is tapped." He has told me and I accept his statement that no politician's telephone was authorized to be tapped. However, there are reports that some politicians' telephones were tapped. There are reports of alleged conversations. I don't know whether that is right or wrong and, therefore, I said in my statement, "Further enquiries are being made into the allegations in magazine." That is correct. Further enquiries are being made. Even as I speak, enquiries are being made. If any evidence is forthcoming or discovered -- people can give us evidence, the magazine can give us evidence or our enquiries will discover evidence -- the matter will be thoroughly investigated by the appropriate agency. So, I can tell this House that Prime Minister has directed that we must go to the bottom of the truth and find out whether the statements made in the magazine is correct or not. If the allegations made in the magazine are right, we will certainly find out who did the unauthorized tapping and the circumstances under which the alleged unauthorized tapping was done and we will take action against them. As far as what appeared two or three days later in the newspaper, I am afraid we must keep the distinction in this debate between allegations made in the particular case and the larger issue of interceptions and telephone tapping.

If we allow our personal views on what we may think is right or wrong about a particular transaction to colour this debate, I am afraid, we will miss the wood for the trees. Again, what does that newspaper say? It says that there were telephone conversations. Now, the CBDT has come out with a statement. The CBDT has categorically said that a section of the media has reported communication between the Income Tax Department and the CBI regarding records of telephonic conversations between a person by the name 'so and so' and others. The CBDT says, "It is clarified that the Income Tax Department has not recorded any telephone conversations of influential businessmen, politicians and advertising professionals as alleged. It is further clarified that the Income Tax Department does not intercept telephonic conversations except as authorised under the law." Sir, if a particular person's telephone conversation has been intercepted by the Income Tax Department, I state with authority, it has been done only under proper authorisation. No conversation has been intercepted without authorisation, and I say, "We are entitled to intercept such conversations if they relate to tax evasion, or if they relate to any commercial transactions which deserve to be investigated." 

The Leader of the Opposition was reading the phrase 'tax breaks/evasion affecting national security'. 'Tax break' is one compartment; there is a stroke, and then 'evasion affecting national security'. 'Tax break' is two words. You don't read 'break' versus 'evasion'. You read 'tax break' as one and then read 'evasion affecting national security' as other. So, both situations allow us to intercept conversations, and the CBDT has, for many, many years, used the power to intercept conversations wherever there is a case registered of tax evasion, or any other evasion affecting national security. Sir, I do not wish to dwell on the individual cases. Much has been said, but I think it would be unfair or completely improper for me to dwell on any cases. If cases are under investigation, they will be investigated. No one has stopped investigation of any case. The cases being investigated will continue to be investigated to a logical conclusion, and if any evasion is found, any violation of law is found, whatever the law provides, we will follow.

On the issues raised by many of the Members, particularly Mr. Sitaram Yechury and others, I am glad that it is recognised that there are legal and authorised interceptions and there may be -- I am not saying 'is' -- unauthorised, illegal interceptions. I speak for the Government when I say that every interception authorised by the Government is perfectly legal, like it has been in the past, like it has been between 1999 and 2004, like it has been before 1999 too. If there has been illegal or unauthorised interception, if our inquiries reveal that there has been any illegal or unauthorised interception, we will go to the bottom of the matter; we will find out who is responsible; and, we will take action against those who are responsible.

D. Raja: Even legal interceptions, how can you do that for political leaders...

P. Chidambaram: I have categorically said that no authority has been given to intercept the conversations of any political leader. That is there in my statement, and unless somebody proves that statement to the contrary, the convention of this House is that the Minister's statement must be accepted.

Arun Jaitley:  Sir, I have just two submissions. First, of course, the Minister has said that even though there has been no authorisation to tap phones of political leaders, the possibility of the phones actually have been tapped may or may not have existed. And, therefore, the enquiry will reveal whether it actually did happen. Do we have the Minister's assurance that he will report back to this House as to what really the findings of this enquiry are, and, the matter will not be left pending.

Secondly, and, it is more important, I urge the Minister to have a relook at the position which he has stated. I made a comment earlier, and, now, I reiterate a strong comment against the existence of lobbies, the encouragement of lobbies, and, the need to almost eliminate them, if not discourage them, from the system. Despite that, as a student of Constitutional law, he must also consider the exact language of Section 5(2) and the judgement of the Supreme Court in the PUCL case on whether tax evasion alone can be a ground or conditions of public emergency and public safety are a necessary pre-requisite. Please reconsider that provision. Otherwise, if tax evasion alone is a ground, you are again empowering the authorities on vague suspicions to bug phones of all and sundry.

Sitaram Yechury: Sir, I just want to make a submission. Sir, I had said that this Act of 1882 is anachronistic. With the development of technologies, today, the fundamental and the most important issue is of maintaining the privacy and liberty of an individual as enshrined in Article 21 of the Constitution. With the growth of technology, we need to modernize that law upholding the right to privacy.

P. Chidambaram: Enquiries are being made and if the enquiries reveal any illegal or unauthorized tapping, surely, we will share it with the hon. Members. On the second point, I do not wish to enter into a debate with my learned friend; it is likely that I may lose the debate. But please remember that the Supreme Court laid down the guidelines with the full knowledge that when the judgement was delivered, the Intelligence Bureau, the Director General- Narcotics, the Revenue Intelligence, the Central Economic Intelligence Bureau and the Enforcement Directorate were authorized by the Central Government to do interception. Having noted that, the Supreme Court when these agencies do the interception, these are the guidelines to be followed. The Supreme Court is fully aware that the tax authorities were also intercepting and the guidelines apply to them. Therefore, to say, simply for tax evasion, you can't intercept, I do not agree with that position.

Arun Jaitley: No, that is the language of the law. That is a judgement. It is a sine qua non. That is what the Supreme Court says. It says that there must be a public emergency or public safety. Tax evasion alone is not enough; it must be linked to either of the two. (Interruptions) Then, please amend the law.

P. Chidambaram: In this day and age to say that anyone doing an act, which threatens the financial stability of India, threatens financial institutions of India, threatens the revenues of the country, is doing something which cannot be discovered through gathering intelligence, I think, is very naïve, and, it portrays a certain childlike innocence on the part of the Leader of the Opposition.

The point is that the Supreme Court, when it laid down the guidelines, was fully aware that these authorities were authorized to intercept communications, and, said, when you intercept communications, please follow the following guidelines. Now, what does the Enforcement Directorate do? What does the Central Economic Intelligence Bureau do? What does the CBDT do? They are only there to collect taxes and to prevent violation of tax laws, and, to ensure that the financial rules and laws are not violated. I think, this is a judgement of 18th December, 1996, reported in 1997. We had the NDA Government for six years, and, during that period also -- I am not sharing any great secret, I don't want to give any numbers -- the CBDT or the CBEC were authorized to intercept conversations for the purpose of ensuring that there is no tax evasion.

Arun Jaitley:  You may call it childlike, but please have a Minister-like reading of the judgment. It says that economic emergency is not public emergency. What you are saying is directly raised and not accepted.. Please reconsider the matter. If on mere suspicion of tax evasion tax authorities are told to go ahead and bug phones, then this is going to lead to a gross misuse. This power is only given for specific

P. Chidambaram: There is the Leader of the Opposition saying that between 1999 and 2004 all the authorizations given by his government ...(Interruptions)... Arun Jaitley: This law the Minister must ...(Interruptions)...

P. Chidambaram: I take note of the point he made. But I also want my reply to be on record. I do not have a closed mind. We will take a look at it and if necessary we will amend the law. But this is the practice which is being followed.