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Phone tapping in India under Indian Telegraph Act

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Question: I am a social activist and fighting against the discriminations of poor people in India. My question is relating to phone tapping by the Government of India. Due to my social activity government is facing problem. So it is tapping my phone to gather evidence. I want to know how to tap phone calls in India? It is a breach of right to privacy. I have a right keep my privacy secure but government is violating it. How to know if my phone is tapped by government?

However I am using Jio and Airtel SIM cards. Both are private cellular providers. So does is possible to keep my phone on surveillance? This is a gray area of our society that when an underprivileged person is trying to rise the government agencies start suppressing them. My phone calls are under the scanner of the government and I’m very much afraid about the security of my life. 

Question from: Karnataka

Unless you have any evidence of phone tapping you cannot raise allegations against the government. Phone tapping is a very serious matter and directly connected to the fundamental right of the citizen. If the government is tapping your phone call without compliance of legal procedure it violates the fundamental right i.e. right to privacy.

Right to privacy is an integral part of the right to life and personal liberty. Right to life and personal liberty is a fundamental right under Article 21 of the Constitution of India. But article 21 also enumerates that the state can deprive a person from such a right by making a just, fair and reasonable law.

Indian Telegraph Act 1885

Section 5(2) of Telegraph Act empowers the central and state government to intercept and record a phone conversation. The government can tap phone calls in the interest of public emergency, public safety, sovereignty and integrity of India. Hence, the government cannot tape your phone on any ground other than those mentioned in Section 5(2).

Thus the right to privacy is not an absolute right. The government can tape any phone calls after recording the reason thereof. You cannot say in such a casual way that the government is tapping my call. What evidence do you have to prove this allegation? If you are not doing any illegal act then the state will not record your phone. You are suspecting that the government is tapping your phone. Hence, you should file a RTI and gather information. 

How to know if my phone is tapped?

I can know about the phone tapping through the RTI. TRAI will provide the information about your phone tapping. TRAI (Telecom Regulatory Authority of India) is a government body which regulates telecom services in India. Jio & Airtel are private entities and RTI application is not enforceable against them. Therefore, these private telecom operators will not inform you about phone tapping.

Also read: Can I get call details under RTI Act

But TRAI will gather information from these private telecom operators. It will provide the information to you regarding whether your phone has been kept on surveillance or not. 

Section 2(f) of RTI Act states that any information relating to a private body which is accessible by public authority is an information under the RTI Act. Therefore, the information about your phone tapping will come under the purview of RTI Act because TRAI can access that information. 

What to do when government is tapping phone call

If you get proof that the government is tapping your phone call then you can file a writ petition before the High Court. File a writ under Article 226 of constitution of India for infringement of fundamental right. When there is no threat to the public safety or there is no public emergency to tape your phone then the phone tapping is illegal. 

In K.L.D. Nagasree vs Government of India (2006) the Andhra Pradesh High Court has held that occurrence of any public emergency or existence of public safety interest is mandatory under Section 5(2) of the Indian Telegraph Act 1885. 

The High Court will examine whether your phone tapping is in the interest of public safety or emergency. If the hon’ble court finds that no such public safety exists then the court will grant a huge compensation to you and punish the responsible officer of the government.

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