The May 3, 2010 issue of the weekly magazine Outlook made a sensational disclosure that telephones of four senior politicians of the country belonging to different parties have been bugged. It further mentioned that the nature of technology obtained by the government agencies is such that the equipment carried in a mobile vehicle is capable of bugging phones unauthorizedly within a radius of two kilometers. The second report carried in April 28, 2010 issue of daily newspaper The Pioneer gave details of the bugging of the phones of public relations/lobbyists firms and its CEO. The contents of the documents reproduced in the newspaper indicated that the firm influenced the decision making process of the country, particularly in relation to the department of the telecommunications and the allocation of 2G spectrum.
The Government responded to both the news stories. In both cases, it was economical with the words as also economical with the truth. To the Outlook story it responded that the government had not authorized any phone tapping. The government did not say that no tapping had taken place. It only gave a careful denial that it had not authorized the telephone tapping. The subtext of the government’s statement was clear. The equipment available with the government is such that it taps phones even without authorization.
To The Pioneer story the CBDT has responded by saying that it did not tap the phones of businessmen, politicians and advertising professionals. However, there was a absence of denial that the phones of the Public Relation/Lobbyists firm were not tapped. The statement implicitly confirmed this. It further mentioned that, on account of tax evasion/fraud impinging on national security, phones of certain persons are tapped by authorized agencies.
The Legal Regime
Section 5 (2) of the Indian Telegraph Act, 1885 deals with the interception of telephonic communications. It is a pre-Constitution Law. The existence of public emergency or the public safety are the essential pre-requisites of the government’s jurisdiction to tap phones. If there is no public emergency or threat to public safety the phones indeed can not be tapped. The Supreme Court, in the matter of PUCL v/s the Union of India, 1997 (1) SCC -301 categorically stated that “occurrence of any public emergency or the interest of public safety are the sine qua non for the application of the Provisions of Section 5 (2) of the Act.” The right to privacy is an essential ingredient of personal liberty of an individual. Privacy is the right to be left alone. ‘Every man’s house is his castle.’ Nobody can interfere into it. Eavesdropping on an individual is encroachment of his privacy and his personal liberty. It offends Article 21. Such an encroachment is possible only with the authority of law.
What is the Government’s position?
Even when the Government is economical with the truth, the Government’s position with regard to tapping of the phones of four politicians is “it did not authorize bugging”. When these vehicles left the office of the concerned organization, was there specific telephone numbers given to them, which required be bugged, as required by the Supreme Court. The Supreme Court and the Indian Telegraph Act do not permit the use of technology where a general sweep takes place and everybody within the two kilometre radius can lose his privacy and get bugged. Does the law allow such a clean sweep bugging to take place? There are seven agencies of the government viz. The Intelligence Bureau, the Central Economic Intelligence Bureau, the DRI, Enforcement Director, CBI, Narcotics Control Bureau and the state police which have been authorized to bug phones. The National Technical Research Organization (NTRO) is not an authorized agency. How was it then given an authorization? How is it that its vehicles were moving around bugging phones of all and sundry without the authority of law and the national safeguards?
In the case of telephone bugging reported by The Pioneer there are two separate questions. The first relates bugging of phone of the PR agency and the second relates to the illegal and unauthorized activities of a lobbyist firm. With regard to the first, was the necessary condition precedent i.e existence of a national emergency, or public safety satisfied when orders were passed for bugging the phones of this agency? Apparently, in most cases of telephone tapping for economic offences these conditions are not satisfied.
Mismatch between law, technology and the real situation
Have we reached a situation where technology has invented equipments the user of which violates the provisions of the Indian Constitution and the Indian Telegraph Act? A clean sweep bugging through the sophisticated equipment violates the Indian law as it stands at present. Should the safeguards of the Indian Constitution or the Indian Telegraph Act be removed? The answer unequivocally would be ‘No’. If law thus need to be amended or abrogated, then should be use of such unguided, unregulated technology be restricted, licensed and restrained?
Apparently, the UPA government has not done so, and has no intention of doing so. It has allowed its intelligence and investigative arms to be used repeatedly to subvert democracy. The CBI is dealing with cases relating to political individuals on three bases. For friends of the government, their effort is to whitewash, cover up and close the cases. For the opponents of this government, their effort is to be vindictive. For the vulnerable and fence-sitters they have left a Damocles’ Sword hanging and use it whenever political support is needed by the government.
This government has failed to effectively to gather intelligence about the Maoists. It track record in getting intelligence about the Jihadi terrorism has been dismal. What it seems to have concentrated on is on the gathering on political intelligence against its opponents and perhaps against some of its own members. The ability of the state to gather intelligence against subversion has been diluted but the might of the state, in this regard, is being used for political espionage.
The collection of evidence from the tapping of telephone of a lobbyist firm (whether legal or illegal) throws up the following disturbing facts-
1. Lobbyists/PR agencies are working in our political and government system in a structured manner.
2. Retired civil servants are routinely employed by them, in order to influence government decisions.
3. Newspapers and news channels funded by their clients are under their control. Funding of several other media organizations takes place at their behest.
4. Bureaucrats, MPs, industrialists, ministers, editors and Journalists are amongst those who are used by these lobbyists as their instruments.
5. The portfolio allocations are influenced by them. The case of allocation of Ministry of Telecommunication was an extensive point of lobbying.
6. The 2G Spectrum allocation was influenced by the minister at the behest of these lobbyists. The Spectrum allocation has caused a huge loss to the public revenue.
Are all these allegations true? Have we become such a fragile democracy, that we can be carried away by such influence? Lobbying is an art of persuading the government to take a particular decision. This persuasion may not be by an argument, this influence can also be by collateral consideration. Will the Government respond to the truth of this?
We must learn from the consequences of encouraging excessive lobbying from the United States. Today Washington DC has over 17,000 registered lobbyists. Many members of the Congress have resigned from office because they found lobbying more lucrative occupation. The lawmakers had to legislate laws such as Lobbying Disclosure Act, 1995, the Legislative Transparency and Accountability Act, the Honest Leadership and Open Government Act, 2007 in order to obviate the ill-effects of a system controlled by lobbyists. Apparently, none seems to be working effectively. How do we then intend to deal with the situation?
The magnitude of this issue is grave. The entire scheme of the Constitutional guarantees, the Indian Telegraph Act, 1885 and the expanding horizons of the telephone bugging technology need to be examined. The mismatch between them has to be eliminated. Was this technology enabled unconstitutional bugging or was this deliberately done? The country needs a response. A Joint Parliamentary Committee is the only forum that can examine the enormity of this issue, and suggest remedial measures.
The above talking points were used by the leader of opposition in the debate in the Rajya Sabha