for this accursed string strangles us all

I am quite fond of the quote, “ For this accursed string strangles us all”. It is the cry by an Indian Mutineer who when lead to the gallows pointed to the telegraph line which would carry his execution orders and yelled it to the morbid amusement of our former colonial masters. The cry becomes relevant in light of recent news of illegal telephone tapping of leading politicians. This is not a novel controversy, quite recently Mr. Amar Singh, a former leader of the Samajwadi Party approached the Supreme Court complaining of the same privacy breaches. Mr. L.K. Advani, has called for a whole-scale repudiation of the Telegraph Act in a blog post. I am in partial agreement with his view, while I would not call for the complete abrogation of the statute the immediate remedy would be abrogating the present system of “the privacy through procedure argument”. I have highlighted the inherent design defects in an article presently under peer review. I am quoting some portions of the article which may be relevant to reforming the law on telephone tapping.

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4. The Limitations of the Present Privacy Regime

A. Design defects in the present surveillance regime

1. Lack of incentive, a lack of procedure

There several problems inherently in the application of the present legal regime. A review of court decisions has demonstrated that even though Courts apply due process, they have heavily relied upon first framing strict procedures and demanded an adherence to them to gauge the legality of telephone tapping.[i] In all probability the same approach will be adopted towards online surveillance.

The most obvious criticism which may be leveled against, “the privacy through procedure argument” advanced will be that such procedure will simply be not complied with. Such a counter will wallow that bureaucrats and police officials put in charge of the safeguards[ii] will hardly be sticklers for procedures. Their primary job will be policing and not securing the privacy of citizens. Hence, they will bring an institutional bias to their function.[iii] The counter completes its logical end by making a lack of incentive argument. It states that the authorities will bring to the job an unabated enthusiasm to secure a conviction and will view the safeguards provided in the statute as hurdles to their goals. A review of the decisions will show that courts have without hesitance convicted offenders on evidence gathered by improper procedure when such procedure is often held not to be mandatory.[iv] The deficiency in observing the safeguards for telephone tapping been held by the Supreme Court to not affect the admissibility of the evidence.[v] The court held that,

In regard to the first aspect, two infirmities are pointed out in the relevant orders authorizing and confirming the interception of specified telephone numbers. It is not shown by the prosecution that the Joint Director, Intelligence Bureau who authorized the interception, holds the rank of Joint Secretary to the Government of India. Secondly, the confirmation orders passed by the Home Secretary (contained in volume 7 of lower Court record, Page 447 etc.,) would indicate that the confirmation was prospective. We are distressed to note that the confirmation orders should be passed by a senior officer of the Government of India in such a careless manner, that too, in an important case of this nature. However, these deficiencies or inadequacies do not, in our view, preclude the admission of intercepted telephonic communication in evidence. It is to be noted that unlike the proviso to Section 45 of POTA, Section 5 of the Telegraph Act or Rule 419A does not deal with any rule of evidence. The non-compliance or inadequate compliance with the provisions of the Telegraph Act does not per se affect the admissibility.[vi]

Hence, when the function is exercised with a bias towards conviction and there is a lack of incentive, these procedures will be routinely flouted. It cannot be said that the mere vesting of this discretion will lead to a presumption that it will be exercised with an evil eye and an unequal hand.[vii] However, the regulations are designed in manner where there is a deep seated bias towards securing conviction with or without an adherence to procedure.

2. Absence of an effective injury discovery and redressal system

The problem of the non-adherence to procedure is compounded by the absence of an effective legal measure to discover the privacy harm, until the information is publicly distributed making the subject aware of the infraction. This seems necessary as a notification may cause the concealment of the information which is sought to be gathered. However, this problem is acute. I anticipate that the paucity of precedent challenging unwarranted intrusion can be contributed due to the non-disclosure. The limited precedent at hand is in cases where an offence is alleged against a person and the information gathered through surveillance is presented in court. The limited empirical evidence suggests that unwarranted surveillance is common occurrence. The PUCL case itself arose out of statistics of a study presented by the Central Bureau of Investigation in which stated the high degree of warrantless eavesdropping on conversations of polticians.[viii] A more recent case which touched media headlines was when the leader of a major political party complained that his phone was being tapped illegally.[ix]

Even in the unlikely event that an ordinary person suspects that he is under electronic surveillance his remedies are onerous to enforce. Though, the Courts in their magnanimity may entertain, (1) a writ proceeding under Article 226 or 32 of the Constitution of India for judicial review of the police action and for appropriate relief; (2) criminal action against the officers responsible for criminal trespass subject to other provisions of Code of Criminal Procedure, 1973; (3) damages in tort by filing a civil suit; and (4) appropriate compensation in a public law jurisdiction from the Court of judicial review under Article 226 or 32 of the Constitution.[x] These remedies may look attractive however; they take substantial time, effort, money and lawyering to enforce.[xi] Hence, relying on probable litigation to cure the privacy breaches will be ineffective.

[i] Infra Sec. ______ [link to the section on PUCL]

[ii] Provisions of the Regulations under which they are appointed

[iii] M.P. Jain & S.N. Jain, Principles of Administrative Law 225–234 (2002). See Bhomesh Sharma v. State of J and K and Ors., 2007 (1) JKJ 84 (Per., Y.P. Nargotra, J.) (the court appreciated arguments as to the institutional bias against the vigilance organisation of the state police, where the evidence which had been gathered by the vigilance organisation from the accussed petitioner on a case was stolen. Thereafter another criminal investigation was commenced by the vigilance organisation. The petitioner fearing his false implication in the case of the theft alleged institutional bias and the court ordered that the investigation of the theft be transsfered to an independent third entity.) See also South Indian Cashew Factories Workers’ Union v. The Managing Director (2006) 5 SCC 201 (Per., Arijit Pasayat and Tarun Chatterjee, JJ.) (it was held that the inquiry had been conducted by the Assistant Personnel Manager of the Corporation and the Union raised an industrial dispute in which Labour Court set aside the inquiry on the ground of institutional bias as the Enquiry Officer was part of the same institution and had also made certain uncorroborated remarks against the employee).

[iv] R.M. Malkani v. State of Maharashtra 1973 CriLJ 228 SC (the court deciding on the admissibility of evidence under section 7 of the evidence act, 1972 held that, “…There is warrant for the proposition that even if evidence is illegally obtained it is admissible. Over a century ago it was said in an English case where a constable searched the appellant illegally and found a quantity of offending article in his pocket that it would be a dangerous obstacle to the administration of justice if it were held, because evidence was obtained by illegal means, it could not be used against a party charged with an offence. See Jones v. Owen (1870) 34 JP 759….”). See also Saiyad Mohd. Saiyad Umar Saiyad and Ors. v. State of Gujarat 1995 (3) SCC 610; C. Ali v. State of Kerala 1999 (7) SCC 88; State of Punjab v. Baldev Singh 1999 (6) SCC 172 ; Beckodan Abdul Rahinan v. State of Kerala 2002 (4) SCC 229) (these cases concern the admissibility of evidence gathered in non-compliance with the procedural safeguards set out in Sec. 50 of the Narcotic and Physocotropic Substances Act. The courts have held that only if the safeguards are mandatory non-compliance will render the evidence inadmissible.).

[v] State (N.C.T. of Delhi) v. Navjot Sandhu AIR 2005 SC 3820 (Per., P. Venkatarama Reddi and P.P. Naolekar, JJ.).

[vi] Id at Para 16 (it is to be noted that even though IT Act does not contain a section analogous to Sec. 45 of the Prevention of Terrorism Act, 2002 which contained language to make evidence admissible even in cases of procedural impropriety for which the decision was given, the general approach of law enforcement is to flout procedural safeguards). See also K.L.D. Nagasree v. Government of India, MANU/AP/0819/2006 (Per., G. Rohini, J.) (The writ petition challenged the order of the respondent under Section 5(2) of the Indian telegraph Act, 1885 directing the interception of messages from the mobile phone of the petitioner. The court discussed the procedural propriety in the order of interception of communications framed under Rule 419-A of the telegraph Rules, 1951 framed pursuant to the safeguards given by the court in the PUCL case. The court examining the order of examination discovered that it was lacking in recording of reasons for the interception. The court also discovered that the review committee constituted under Rule 419-A(8) merely postponed the review of the orders of interception. Ultimately the court held that these infirmities rendered the evidence admissible. Even here the approach of the law enforcement not to observe procedure is to be noted.)

[vii] Gulf of Colarado v. W.H. Ellis, (1987) 165 US 150.

[viii] PUCL insert cite

[ix] Amar Singh v. Union of India 2006 (2) SCALE 698 at Para 2 (Per., Y.K. Sabharwal, C.J.) (“we have asked certain questions from learned Solicitor General regarding the tapping of telephones under the authority of the Central Government for which too time is sought to file further affidavits.”).

[x] Sunkara Satyanarayana v. State of Andhra Pradesh, Home Department and Ors., MANU/AP/1027/1999 at Para 65 (Per., V.V.S. Rao, J.) (The court listed the different types of remedies available to a petitioner aggrieved by the police maintaining a history sheet for him on grounds of infringement of his right to privacy).

[xi] 1 Arun Mohan, Justice, Courts and Delay 1–42 (2009) (a modern classic on the causes and solutions to delays clogging Indian Courts). See also Marc Galanter, Fifty Years On 59 in Supreme but not infallible (B.N. Kirpal et al, eds. 2004) (describing litigation in India as plagued by delays and as a game of a ‘sunken cost auction’).

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