NEW DELHI: Fresh controversy over alleged use of spyware Pegasus for snooping purposes may have scratched open a old malaise that has festered due to successive governments' irresistible desire for illegal interception of telephones for decades despite the
Supreme Court in 1996 laying down unambiguous and stringent guidelines to curb unauthorised surveillance.
From the 1970s, the
SC has taken up many cases of telephone tapping.
The Second Press Commission, set up by Morarji Desai government in 1978, in its report had referred to this malaise and said, "not infrequently, the Press in general and its editorial echelons in particular have to suffer from the tapping of telephones."
But, the first major case came to the SC when NGO 'People's Union for Civil Liberties' approached the court for fixing accountability after a news magazine 'Mainstream' in 1991 published a report about unauthorised interception of over 300 phones by the government.
The SC judgment on the issue came on December 18, 1996. In which it recorded various categories of illegal snooping - a. four telephones were intercepted unauthorisedly; b. 279 telephones were intercepted but not shown in the list of intercepted phones; c. 133 telephones were intercepted on oral request; d. interception of 111 telephones exceeded the maximum 180 day period; e. reasons for keeping a phone under surveillance was not maintained properly.
While late Rajinder Sachar argued for judicial scrutiny of the need for judicial scrutiny of the need prior to interception of telephones, the court had accepted Kapil Sibal's suggestions for a robust procedural safeguard to ward off possibility of snooping. Ruling that right to privacy is part of right to life, the SC had said that the five grounds under the Indian Telegraph Act, which can be availed by a government to intercept telephone conversations or messages, would not be resorted to unless "a public emergency has occurred or the interest of public safety so requires". SC had said that such situations are not secretive and should be apparent to a reasonable person.
After laying down a 9-point guideline, the SC had said that authorisation for interception to telephones could be issued only by the home secretaries of the Union and state governments. In emergency situations, the orders must come from a designated officer in the respective home departments, who has been priorly delegated with the power to order interception of telephones.
But, the guidelines apparently went up in smoke when a complaint by then finance minister Pranab Mukherjee against lobbyist Niira Radia led to interception of 5,800 telephone calls made by her between August 20, 2008 to July 9, 2009. Industrialist Ratan N Tata moved SC seeking protection of privacy which was being breached with some of the intercepted telephone conversations of Radia reaching public domain.
The SC order of October 17, 2013 records the details of the calls made by her to politicians, industrialists, journalists and ministers. Some of the intercepted calls, available in the public domain, had caused a furore in public and corresponding embarrassment to politicians, industrialists and even top journalists who were seen begging for favours from Radia.
Radia tapes revealed a top TV anchor's attempt to play a political diva’s role in distribution of portfolios in the Manmohan Singh cabinet after UPA was re-elected in 2009. A known journalist was heard pleading uncomfortably with Radia to introduce his female colleague into the lobbyist’s elite social circle that would help better her curriculum vitae.
SC's decision on Tata's petition, filed in the year 2010, is still pending with the Supreme Court. No one knows the fate of the investigations which the SC had ordered after categorising the contents of the Radia tape into 11 categories.
The lethargy on the part of the Supreme Court to expeditiously decide the issue and put to scrutiny the interception modalities and safeguards has emboldened the Union and State governments to undertake with impunity the interception of telephones of rivals, as complained by
Sachin Pilot during the period of his rebellion against Chief Minister Ashok Gehlot.