On 10th January 2014, several Indian national newspapers ran reports on a fresh set of procedures for interception of telephones issued by the Government of India. According to said reports, this set of procedures issued on 2nd January 2014 bears the title ‘Standard Operating Procedures (SOP) for Lawful Interception and Monitoring of Telecom Service Providers (TSP)’ and is numbered 5-4/2011/S-II. While the broad framework for phone interception has been provided primarily under Section 5 of the Indian Telegraph Act 1885 read with Rule 419A of the Indian Telegraph Rules 1951, its administrative details are usually prescribed by periodic guidelines or notifications such as the present SOP.
The Hindu in particular, claiming to have accessed this document, noted that it significantly came two weeks after the Government had set up a commission to enquire into the Gujarat-based snooping scandal. It further said that under the SOP, interception of voice, SMS, GPRS, MMS, Video and VoIP calls is subject to eight checks before monitoring is allowed, though the checks themselves were not reported in their entirety. While several additional tidbits were cited from what is apparently a 45-page document containing 11 sections (which detail the operational structure, types of request, validation of interception request, legal intercept under number portability, reconciliation & pruning processes, consequences, list of 10 law enforcement agencies authorised to intercept and a set of 10 annexures relating to interception), a comprehensive picture of the whole process was surprisingly absent.
In order to procure a copy of the SOP, SFLC.IN filed two applications under the Right to Information (RTI) Act, 2005 – one before MTNL and a replicate before the Department of Telecommunications (DOT), Ministry of Communications and Information Technology.
The application filed before MTNL was subsequently forwarded to the DOT, stating that the ‘case pertain to DOT’ [sic]. Meanwhile, the second application filed directly before the DOT was rejected by its Central Public Information Officer on the grounds that ‘the desired information … deals with the classified information related to the security of the nation’ [sic], and is hence exempted from the RTI Act’s purview under Section 8(1)(a) of the Act. The first application that eventually found its way to the DOT was also foreseeably rejected on the same grounds.
In the light of DOT’s refusal to part with the SOP, SFLC.IN filed an appeal before the First Appellate Authority [DDG (Security), DOT] on the grounds that:
- The requested information does not fall within the ambit of Section 8(1)(a)
- Sufficient justification was not provided by the CPIO while claiming exemption under Section 8(1)(a)
However, by an order dated 20.3.2014, the Appellate Authority informed SFLC.IN that the requested SOP ‘is a restricted document having detailed procedure including internal mechanism of communication within TSP, level of officers on law-enforcement agencies as well as Telecom Service Providers, format for communication etc. about lawful interception and monitoring’ [sic]. For this reason, the CPIO’s refusal to furnish the information due to the applicability of Section 8(1)(a) of the RTI Act was ruled to be in order.
This calls for a quick look at Section 8(1)(a). It reads:
Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen … information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation to foreign State or lead to incitement of an offence.
Thus, while Section 8(1)(a) does exempt from disclosure any information, whose disclosure would compromise national security, it ostensibly leaves the task of categorising such information to the responding Government official.
That said, one utterly fails to understand how the nation’s security might be compromised by the disclosure of a set of purely procedural guidelines that specify how phone interception requests are to be handled by those involved. Whereas the specific contents of intercepted calls may understandably be brought under the exemption granted by Section 8(1)(a), there are no evident grounds that justify extending this line of reasoning to the broad procedural framework of interception. Responses to neither RTI application carried any clarification to this end. This unsubstantiated denial of information assumes special intrigue considering the Central Information Commission’s ruling in the case of Dhananjay Tripathi v. Banaras Hindu University, where it was held that quoting provisions of Section 8(1) of the RTI Act to deny information without giving any justification or grounds as to how these provisions are applicable is simply not acceptable, and clearly amounts to mala fide denial of legitimate information.
Not only is such blind invocation of Section 8(1)(a) ungrounded in law, but it is also illustrative of a highly disturbing tendency on the part of Government authorities to not disclose the tiniest detail regarding its surveillance initiatives. In light of a considerable lack of legislative clarity on State surveillance of communications and in the absence of any judicial or parliamentary oversight of the process whatsoever, this stubbornly tight-lipped stance of the Government is cause for much concern. Making matters even worse is the conspicuous absence of a Right to Privacy under Indian law, save a judicial nod in the direction, where Right to Privacy was interpreted as an implicit content of the Right to Life as guaranteed under Article 21 of the Constitution of India.
Given the circumstances, it is the duty of the Government of India to assuage its citizens’ privacy concerns and disclose the interception processes and the safeguards implemented to protect the privacy of citizens– all the more so in view of a slew of surveillance super-systems in the pipeline such as the Centralized Monitoring System and the National Intelligence Grid among others. While SFLC.IN will certainly appeal the DOT’s refusal to part with the recent SOP, it is imperative that the Government rethinks its mode of addressing entirely justified privacy concerns of its citizenry.