This article is written by – Himanshu Shukla, Student (IP University, Delhi)
A recent order by the Central Information Commission (CIC) has established that ordinary citizens have no right to know whether their phones are under authorized or unauthorized interception.
The Deputy Secretary and CPIO (Ministry of Home Affairs), ShailendraVikram Singh in the Central Information Commission (CIC) submitted that lawful interception is possible under Section 5(2) of the Indian Telegraph Act. However, he added that if it is revealed whether the phone has been intercepted or not, it will defeat the purpose of the Act.
Complainant Nilesh Gajanan Marathi had applied to the Right to Information Act in April 2019 with the Department of Telecommunications, Telecom Regulatory Authority of India (TRAI), and the Ministry of Home Affairs under the Ministry of Communications and IT. To find out if two of his mobile phones were under any “unauthorized interception.” The petitioner also raised the issue of privacy threats from non-state actors.
During the hearing before the commission, the petitioner opposed the response of the government departments and insisted that it was illegal to intercept the phone.
In his order, Central Information Commissioner (CIC) VanajaN. Sarnanoted during the hearing the petitioner referred to judgment given by the Supreme Court in the case of Justice K.S. Puttaswamy (Retd.) v Union of India, in September 2018.
TRAI says only telecom service providers (TSPs) can provide interception information
On behalf of the central govt, Ritu Pandey (Director and CPIO of TRAI) said that the telecom authority does not have access to such information, further she said “The same has to come from telecom service providers (TSPs).”
‘Disclosure would defeat the purposes of the Indian Telegraph Act’
The MHA official also said that “disclosure of information about a particular telephone number is not possible as it would defeat the implied purposes of section 5(2) of the Indian Telegraph Act”.
In 2018, the CIC had ordered TRAI to provide information in the phone tapping case.
In the case of Kabir Shankar Bose, which was quoted by the appellant; the CIC had directed TRAI to collect information from the service provider and submit the same to Bose dated September 12, 2018.
TRAI had subsequently challenged the CIC’s order on November 20, 2018, in the bench of Justice Suresh Kumar Kait the petition was dismissed, holding that it was a regulatory authority and had the power to call the service provider for required information. Later this order was stayed by Chief Justice DN Patel and Justice Jyoti Singh
MHA insists that the matter is under consideration, the CIC order has not been implemented and the matter is still sub-judice. Therefore, he insisted, the reliance on the said order by the complainant was wrong. The Commission held that a suitable explanation was provided by the CPIO, Ministry of Home Affairs. And observed that there is no scope for interference in the matter.