Phone Tapping: Delhi High Court Asks Centre To File Detailed Reply Explaining Procedure For "Monitoring & Interception"

The Delhi High Court on Tuesday asked the Central Government to explain in detail the law and procedure followed by it for monitoring and interception of phones of the citizens of India.

The order has been passed by a Division bench of Chief Justice DN Patel and Justice Jyoti Singh on a PIL filed by Centre for Public Interest Litigation, alleging that though its 'general surveillance mechanisms' the Government is collecting substantial amount of information about citizens, which flows through the internet.

Advocate Prashant Bhushan appearing for CPIL stated that they are particularly aggrieved by Centralised Monitoring System ("CMS"), Network & Traffic Analysis ("NETRA") and National Intelligence Grid ("NATGRID"). These surveillance systems allow the government to monitor communications of individuals through mobile phones, landlines, and the internet.

While CMS is similar to a system in the USA, NATGRID covers bank transactions, bank details, airline ticket bookings etc. Similarly, NETRA system scans information going through internet using keywords. This, he said is an invasion of citizens' right to privacy under Article 21 of the Constitution, which was upheld by the Supreme Court in Justice KS Puttaswamy judgment.

Bhushan also argued that the manner in which permissions for telephone interception are being given implies it is being done in a routine manner. In this regard, he referred to Justice Srikrishna Committee's report, highlighting that more than 7,500 phone tapping permissions are being given by the Union Home Secretary, every month.

"It is impossible for a person to scrutinize 9,000 applications every month. This implies that no proper safeguard is being used in order to see if a person's phone needs to be intercepted for legitimate reasons. This is leading to invasion of privacy of every citizen, including Judges," Bhushan submitted.

He continued, "In fact we have seen Pegasus, which was only a targeted monitoring system, it was found that phones of Judges, court staff, etc. were also targeted."

Reading Justice Srikrishna's report, Bhushan said: "For each of these mechanism, oversight is carried out by the Interception Committee set under the Telegraph Rules. The Committee reviews interception orders passed under the Telegraph Act and Section 69D of IT Act...As per a recent RTI application, it has been found that 7500-9000 such phone tapping orders are passed by the Central Govt every month. The review committee has an unrealistic task of reviewing 15,000-18,00 interception orders in every meeting, which is held once in every 2 months."

He thus urged the Court to set up an Independent Oversight Committee and further pass an interim direction to the Government to put on record whatever has been done in this regard till now.

He stated that initially, the Government had filed a short affidavit, claiming that everything is being done in accordance with law. However, they did not respond to the averments regarding CMS, NATGRID and NETRA. He pointed out that the initial affidavit was withdrawn to be replaced with a better one, however, the same also does not deal with the allegations of surveillance and routine exercise of power to intercept.

The Central Government on the other hand claimed that a similar matter is pending before the Supreme Court.

"I am not appearing in this matter but another matter is pending before Supreme Court. There are statutory rules in place which require us to seek permission. It also require periodical review also...There are Rules made under Section 69 r/w Section 84 of the IT Act...it cannot be decided on numbers, that 1,000 is okay but 7,000 permissions are not okay," Solicitor General Tushar Mehta told the bench. He sought permission to file an affidavit bringing on record these Rules, etc.

Accordingly, the Bench ordered:

"Learned SG for Union of India is seeking time to file a detailed affidavit. Counsel appearing for Petitioner states that earlier short affidavit was filed and several averments made in the petition have not been answered by Union of India.

Time to file a detailed affidavit is granted to Union of India. It will point out in detail the law and procedure followed by it for monitoring and interception of phones."

Matter has been adjourned to 30th September.

Case Title: CPIL v. UoI