Phone-tapping Laws: A Comparative Analysis

Vipul Jai 1

Abstract

National Telecom Policy 2011, expected by the end of the year, is likely to include issues
pertaining to licensing, spectrum allocation, tariffs/pricing, linkage with roll-out obligations, and
flexibility within licenses, spectrum sharing, spectrum trading, as well as mergers and
acquisitions. However it is still to be seen whether NTP 11 includes regulations regarding
phone-tapping, which has taken an ugly turn with the recent events in the Amar Singh case and
the Ratan Tata case. News International phone-hacking scandal, where News of the World, a
British tabloid newspaper, was accused of engaging in phone hacking in pursuit of publishing
stories, exposes an appalling outcome of unregulated phone-tapping. This paper, thus, aims at
examining the constitutionality of phone-tapping and the role of judiciary in curbing invasion of
individuals privacy rights while carrying out a comparative analysis of the existing provisions in
India, with those of United States of America and Canada.

1
LL.B. (Hons.) with specialization in IPR, Final Year, Rajiv Gandhi School of Intellectual Property Law, IIT
Kharagpur.
1

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Introduction

I really believe that we don't have to make a trade-off between security and privacy. I think
technology gives us the ability to have both.
-John Poindexter 2

India is perhaps the only democratic nation that does not require a judicial warrant for
intercepting private telephonic conversations of an individual. Surprisingly, India has failed to
formulate a stringent policy harmonizing an individuals privacy and public safety. Indian
Telegraph Act, 1885 provides for the government to intercept messages of any person or a class
of persons in the interest of sovereignty and integrity of India. 3 But this power to intercept was
devoid of any rules 4, thus giving unregulated discretion to the executive branch of the
Constitution of India to authorize phone-tapping.

Supreme Court of India tried to remove the procedural anomaly in the P.U.C.L. case 5 and
directed the Government to follow a specific modus operandi before proceeding with the
interception of messages. However, alongside laying down the procedure in P.U.C.L case, the
Supreme Court stressed upon the fact that it is entirely for the Central Government to make
rules on the subject but till the time it is done the right to privacy of an individual has to be
safeguarded 6. Pursuant to the procedural safeguards formulated by the Supreme Court in the
P.U.C.L case, the Central Government brought out an amendment to the Indian Telegraph Rules,
1951 by inserting Rule 419-A vide G.S.R. 123 (E), dated 16.02.1999. The amendment to Indian
Telegraph Rules, 1951 also failed to remove unguided interception of messages as the decision
taking authority still remained with the executive branch of the Indian Constitution.

2
Poindexter was appointed as President Reagan's national security adviser on December 4, 1985. He is a
retired United States naval officer and former Department of Defense official.
3
Section 5(2), Indian Telegraph Act, 1885.
4
Section 7(2)(b), Indian Telegraph Act, 1885.
5
Peoples Union of Civil Liberties v. Union of India, AIR 1997 SC 568.
6
Id. at paragrapgh 34.
2

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Existing situation: Post PUCL case

Telephones along with other communication devices find mention under Entry 31 of the
Constitutions Union List and is based on Entry 7 in the Federal List of the Government of India
Act 1935. 7 As Seervai 8 has explained, the G.I. Act itself had taken the note of the progress of
Science in Entry 7, List I, which ran as Posts and telegraphs; telephones, wireless, broadcasting
and other like forms of communication 10 and Entry 31 9, List I of our Constitution retained the
entry, hence the need to interpret the word telegraphs flexibly to include telephones, wireless,
broadcasting etc. is not necessitated. 10

Section 5(2) 11, Indian Telegraph Act, 1885 empowers the government to order
interception of messages. And Section 7(2)(b) 12, Indian Telegraph Act, 1885 which gives the
rule making power to the Central Government, fails to lay down any procedure to prevent the
improper interception or disclosure of messages.

However, plain reading of Section 5(2), Indian Telegraph Act, 1885 suggests that it
does not confer any unguided power on the Government to intercept the messages, as it only
permits the interception in accordance with provisions of the said section. Central Government,
7
See HM Seervai, Constitutional Law of India, vol 3, 4th edn, NM Tripathi, 1996, pg 2332.
8
HM Seervai, Constitution Law of India, Vol.3, 4th Edn., N.M. Tripathi, 1996, pg 2332
9
Entry 31,Schedule VII, Constitution of India: Posts and telegraphs; telephones, wireless, broadcasting and other
like forms of communication..
10
Vikram Raghavan, Communications Law in India,1st Edn., 2007, pg 109
11
5. Power for Government to take possession of licensed telegraphs and to order interception of messages
(2) On the occurrence of any public emergency, or in the interest of the public safety, the Central
Government or a State Government or any officer specially authorised in this behalf by the Central
Government or a State Government may, if satisfied that it is necessary or expedient so to do in the
interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign
states or public order or for preventing incitement to the commission of an offence, for reasons to be
recorded in writing, by order, direct that any message or class of messages to or from any person or class of
persons, or relating to any particular subject, brought for transmission by or transmitted or received by any
telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the
Government making the order or an officer thereof mentioned in the order:
Provided that the press messages intended to be published in India of correspondents accredited to the
Central Government or a State Government shall not be intercepted or detained, unless their
transmission has been prohibited under this sub-section.
12
Section 7 - Power to make rules for the conduct of telegraphs
(2) Rules under this section may provide for all or any of the following among other matters, that is to say:--
(b) the precautions to be taken for preventing the improper interception or disclosure of messages;
3

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empowered under Section-7(2) (b), failed to provide for rules to prevent improper interception of
message hence rendering the substantive provision unregulated. According to Section 5(2), the
occurrence of any public emergency, or in the interest of the public safety are the pre-
requisites for the application of the provisions of the section. In absence of these pre-requisites,
the concerned authorities have no power to enforce the provisions of the said section.

Justice Kuldip Singh succinctly concludes on applicability of Section 5(2), in the PUCL
case 13:

The first step under Section 5(2) of the Act, therefore, is the occurrence
of any public emergency or the existence of a public-safety interest.
Thereafter the competent authority under Section 5(2) of the Act is
empowered to pass an order of interception after recording its satisfaction
that it is necessary or expedient so to do in the interest of (i) sovereignty
and integrity of India, (ii) the security of the State, (iii) friendly relations
with foreign States, (iv) public order or (v) for preventing incitement to
the commission of an offence. 14

In K.L.D Nagasree v. Government of India 15, while reiterating the view of the Court in P.U.C.L.
case, it was held:

A bare reading of the above provision shows that for the purpose of
making an order for interception of messages in exercise of powers under
Sub-section (1) or Sub-section (2) of Section 5 of the Telegraph Act, 1885,
the occurrence of any pubic emergency or the existence of a public safety
interest are the sine qua non. 16

13
Peoples Union of Civil Liberties v. Union of India, AIR1997SC568
14
Id. at paragraph
15
AIR 2007 AP 102
16
Id. at paragraph 6.
4
Supreme Court while upholding the constitutionality of Section 5(2) in P.U.C.L. case,
recognized the absence of procedural safeguards for the substantive provisions of the above
mentioned section and placed reliance on Maneka Gandhi case 17 to stress upon the importance
of procedural backing to any substantive provision dealing with the fundamental right of
individual, where it was opined:

Procedure which deals with the modalities of regulating, restricting or

even rejecting a fundamental right falling within Article 21 has to be fair,
not foolish, carefully designed to effectuate, not to subvert, the substantive
right itself.
Hence the requirement of procedural safeguards for the provisions of Section 5(2)
becomes significant in the light of right to privacy guaranteed by Article 21, Constitution of
India, 1950. Interception of private conversation, void of just and fair procedure, would infringe
an individuals right to privacy assured under Article 21, which might render the substantive
provision, allowing interception, as unconstitutional.

Right to Privacy in India

A plethora of cases have established right to privacy as a fundamental right under

Article -21 of the Indian Constitution. The first instance of recognition of right to privacy as a
fundamental right came through the minority opinion by Justice Subba Rao (in the Kharak Singh
case 18) who asserted that right to privacy is a part of the right to protection of life and liberty
as guaranteed under Article 21,Constitution of India. Subsequently, in 1995, the Supreme
Court in R. Rajagopal alias R.R. Gopal and Another v. State of Tamil Nadu and Ors. 19, while
relying on the Kharak Singhs 20 case, the Govinds case 21 and a large number of American 22 and

17
Maneka Gandhi v. Union of India, AIR 1978 SC 597
18
Kharak Singh v. State of U.P., AIR 1963 SC 1295
19
AIR 1995 SC 264
20
Kharak Singh v. State of U.P., AIR 1963 SC 1295
21
Govind v. State of Madhya Pradesh, 1975 CriLj 1111.
22
See Olmstead v. United States [1928] 277 U.S. 438 : 72 L.Ed. 944; Time Inc. v. Hill [1967] 385 U.S. 374 : 17
L.Ed. 2d. 456, Cox Broadcasting Corporation v. Cohn (1975) 420 U.S. 469 : 43 L.Ed. 2d. 328,
5
English cases 23, held right to privacy to be guaranteed by Article 21 in the Constitution of
India:

The right to privacy is implicit in the right to life and liberty guaranteed
to the citizens of this country by Article 21. It is a "right to be let alone". A
citizen has a right to safeguard the privacy of his own, his family,
marriage, procreation, motherhood, child bearing and education among
other matters.

In RM Malkani v. State of Maharashtra, 24 the court while considering whether a conviction

based on an intercepted telephone conversation was unconstitutional held:

Article 21 contemplates procedure established by law with regard to

deprivation of life or personal liberty. The telephonic conversation of an
innocent citizen will be protected by Courts against wrongful or high
handed interference by tapping the conversation. The protection is not for
the guilty citizen against the efforts of the police to vindicate the law and
prevent corruption of public servants. 25

Lack of Stringent Procedural Safeguards

In 1997, the Supreme Court laid down 26 procedural safeguards to back the provisions of
Section 5(2), Indian Telegraph Act, 1885.

Pursuant to establishment of procedural safeguards by the Supreme Court, the Central

Government made an amendment to the Indian Telegraph Rules, 1951 by inserting Rule 419-A
vide G.S.R. 123 (E), dated 16.02.1999. It is clear that the insertion of Rule 419-A was aimed at
safeguarding the right to privacy of an individual. 27 However, even though the legislature was

23
Derbyshire County Council v. Times Newspapers Ltd. [1993] 2 W.L.R. 449; Judicial Committee of the Privy
Council in Leonard Hector v. Attorney General of Antiqua and Barbuda (1990) 2 A.C. 312
24
AIR 1973 SC 157
25
Id. at paragraph 31.
26
Peoples Union of Civil Liberties v. Union of India, AIR 1997 SC 568
27
K.L.D Nagasree v. Government of India, AIR 2007 AP 102
6
prompt in its action to introduce an amendment to the Indian Telegraph Rules, 1951 by inserting
Rule 419-A, it failed to recognize the exigency for a strong protection against government
eavesdropping. Unlike other democracies, India by maintaining the executive branch as the final
decision making authority has whittled down the safeguards for protecting the privacy of
individuals.

Comparative Analysis

Almost every democracy necessitates a judicially sanctioned warrant and a probable

cause for wiretapping by the government. Strict qualifying criterion for wiretapping can be
majorly attributed to the fact that eavesdropping violates not only the targets' privacy, but also
the privacy of every other person that they communicate with.

American Legislature on Wiretapping

Fourth Amendment to the United States Constitution prohibits unreasonable searches and
seizures and sets probable cause as a pre-requisite for issuance of search warrants. The text of the
amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause, supported by oath or affirmation,
and particularly describing the place to be searched, and the persons or things to
be seized.

Role of Judiciary: Scope of Search and Seizure

The U.S. Courts strictly interpreted the Fourth Amendment of the American Constitution
until 1967. As a result, the Fourth Amendment included search and seizure of tangible items
only. Owing to such interpretation, wiretapping, which does not include any physical intrusion
into an individuals private space, was never covered under the right bestowed by the Fourth

7
Amendment, resulting in having no requirement of obtaining a Court warrant for conducting the
same.

Katz v. United States 28 altered the Courts stance, when in 1967 the Supreme Court of
United State of America held that search and seizure includes both tangible as well as intangible
items for the protection guaranteed under the Fourth Amendment, hence making it mandatory for
the authorities to take a judicially sanctioned warrant before wiretapping any individuals
conversation. The Court of Appeals rejected the contention that the recordings had been obtained
in violation of the Fourth Amendment, because "[t]here was no physical entrance into the area
occupied by [the petitioner]." 29

The Supreme Court in this case considered judgments 30, which limited the application of
the Fourth Amendment of the US Constitution to cases involving search and seizure of tangible
properties only. After analyzing both the cases, the court announced its departure from the
narrow view afforded to the Fourth Amendment:

Thus, although a closely divided Court supposed in Olmstead 31 that

surveillance without any trespass and without the seizure of any material
object fell outside the ambit of the Constitution, we have since departed
from the narrow view on which that decision rested. Indeed, we have
expressly held that the Fourth Amendment governs not only the seizure of
tangible items, but extends as well to the recording of oral statements,
overheard without any "technical trespass under . . . local property law." 32

The Court, while bringing wiretapping within the meaning of search and seizure under
the Fourth Amendment, concluded that the trespass doctrine enunciated in Olmstead and
Goldman had been eroded by subsequent decisions and the same could no longer be held to be
controlling. Further, it was held that Governments activities in electronically listening to and
28
389 U.S. 347 (1967)
29
Id. at Paragraph 348,349.
30
Olmstead v. United States, 277 US 438 (1928); Goldman v. United States, 316 US 129 (1942)
31
Olmstead v. United States, 277 US 438 (1928)
32
Silverman v. United States, 365 U. S. 505, 511 (1961)
8
recording telephonic conversations of its citizens violated the privacy and thus constituted
search and seizure within the meaning of the Fourth Amendment. 33

The Court attached significance to the judicial process involved in obtaining approval for
wiretapping by any government authority and said:

It is apparent that the agents in this case acted with restraint. Yet the
inescapable fact is that this restraint was imposed by the agents
themselves, not by a judicial officer. They were not required, before
commencing the search, to present their estimate of probable cause for
detached scrutiny by a neutral magistrate. They were not compelled,
during the conduct of the search itself, to observe precise limits
established in advance by a specific court order. In the absence of such
safeguards, this Court 34 has never sustained a search upon the sole ground
that officers reasonably expected to find evidence of a particular crime and
voluntarily confined their activities to the least intrusive means consistent
with that end. Searches conducted without warrants have been held
unlawful "notwithstanding facts unquestionably showing probable
cause." 35
As in Goldman 36, the only relevant factor considered by the Court in Silverman 37 was the
method of search used by the government: "This Court has never held that a federal officer may
without warrant and without consent physically entrench into a man's office or home, there
secretly observe or listen, and relate at the man's subsequent criminal trial what was seen or
heard. 38,39

33
Id. at paragraph 353.
34
Agnello v. United States, 269 US 20 (1925)
35
Katz v. United States, 389 U.S. 347, 356-357 (1967)
36
Goldman v. United States, 316 U.S. 129 (1942)
37
Unites States v. Silverman, 365 U.S. 505 (1961).
38
Id. at 511-12.
39
53 Hastings L.J. 1303 2001-2002
9
 Justice Douglas, who was joined by Justice Brennan, while concurring with the majority
judgment made a pressing observation regarding executive branch being the final decision
making authority in cases of the national security:

Neither the President nor the Attorney General is a magistrate. In matters

where they believe national security may be involved they are not
detached, disinterested, and neutral as a court or magistrate must be.
Under the separation of powers created by the Constitution, the Executive
Branch is not supposed to be neutral and disinterested. Rather it should
vigorously investigate and prevent breaches of national security and
prosecute those who violate the pertinent federal laws. 40

Present Stand

Though the Supreme Court of the United States has sought to narrow down the scope of
the word search under the Fourth Amendment in a post Katz judgment 41, it has still maintained
judicial warrant as a pre-requisite.

Whilst upholding the validity of the requirement of a judicial warrant for conducting a
search, the Court keeping in line with the Fourth Amendment and the Courts decision in Katz 42,
held:

The Fourth Amendment provides that "[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated." "At the very core" of the Fourth Amendment
"stands the right of a man to retreat into his own home and there be free from
unreasonable governmental intrusion." 43 With few exceptions, the question

40
Id. at paragraph 360.
41
Kyllo v. United States, 533 U.S. 27 (2001)
42
Katz v. United States, 389 U.S. 347, 356-357 (1967)
43
Silverman v. United States, 365 U. S. 505, 511 (1961)
10
 whether a warrantless search of a home is reasonable and hence constitutional
must be answered no. 44,45

Position in Canada

Under S.186, Criminal Code 46, investigative authority has to apply for a judicial
authorization to intercept a private communication that is contingent on satisfaction of the Judge
to whom an application has been made. S.184.4, Criminal Code 47, however, allows a police
officer to proceed with interception of a private communication without a judicial authorization
in exigent circumstances.

Judicial Outlook: Wiretapping

Investigative measures such as wiretapping have been dealt with strictly by the Canadian
Supreme Court and the Court has advanced a restrictive approach in this regard. To effectuate
the restrictive approach, the Court curtailed the scope of the expression other investigative
procedures are unlikely to succeed in S.186(1)(b) 48, Criminal Code 49, which authorized the
police officers to wiretap on failure of other investigative procedures.

The British Columbia Supreme Court in R. v. Araujo 50 held, the interpretation given by
Court of Appeal; under S. 186(1)(b) of the Code, wiretapping may be accepted as an
appropriate investigative tool where other investigative procedures are unlikely to succeed, to
be wrong in law and that this interpretation has potential to subvert the safeguards of privacy
interests that are essential component of the regulation of wiretapping in the Code. The Court
while holding wiretapping as highly intrusive laid down a few requirements:
44
Illinois v. Rodriguez, 497 U. S. 177, 181 (1990); Payton v. New York, 445 U. S. 573, 586 (1980)
45
Kyllo v. United States, 533 U.S. 27, 31 (2001)
46
Criminal Code (R.S.C., 1985, c. C-46)
47
Id.
48
186. (1) An authorization under this section may be given if the judge to whom the application is made is satisfied
(a) that it would be in the best interests of the administration of justice to do so; and
(b) that other investigative procedures have been tried and have failed, other investigative procedures are
unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the
investigation of the offence using only other investigative procedures.
49
Criminal Code (R.S.C., 1985, c. C-46)
50
2000 CarswellBC 2440
11
 In order to meet the investigative necessity requirement, the applicant
must establish in the affidavit that, practically speaking, there is no other
reasonable alternative method of investigation, in the circumstances of the
particular criminal inquiry.

Hence, the Supreme Court held that even in times of investigative necessity, the applicant
needs to establish in the affidavit that there is no other investigative tool available besides
wiretapping for the collection of evidence. 51

Wiretapping Void of Judicial Warrant: Invalid

In a recent judgment 52, the Supreme Court of Canada has ruled that Section-184.4 53,
Criminal Code 54, which authorizes the police officers to intercept a private telecommunication
without a judicial warrant, to be constitutionally invalid.

Judge Davies while declaring the provisions of S. 184.4 to be constitutionally invalid

mooted the concept of constitutionally compliant implementation process for the consideration
of the legislature to amend the specific provision. He held that the existence of exigent
circumstances giving rise to a reasonable apprehension of serious harm will be properly balanced
with the need of safeguarding individuals right to privacy if the interception of communications
is limited to very short periods by the constitutionally compliant implementation process,
allowing judicial consideration of the situation at the earliest possible time.

51
R. v. Araujo, 2000 CarswellBC 2440
52
R. v. Tse, 2008 CarswellBC 1948
53
184.4 A peace officer may intercept, by means of any electro-magnetic, acoustic, mechanical or other device, a
private communication where
(a) the peace officer believes on reasonable grounds that the urgency of the situation is such that an authorization
could not, with reasonable diligence, be obtained under any other provision of this Part;
(b) the peace officer believes on reasonable grounds that such an interception is immediately necessary to prevent an
unlawful act that would cause serious harm to any person or to property; and
(c) either the originator of the private communication or the person intended by the originator to receive it is the
person who would perform the act that is likely to cause the harm or is the victim, or intended victim, of the harm.
54
Criminal Code (R.S.C., 1985, c. C-46)
12
 Therefore, even in critical situations, the cardinal rule requires the investigating
authorities to first intercept those private communications that may be lawfully intercepted
pursuant to SS. 184.4(c) and immediately apply to the Court for a warrant as there is no certainty
as to how long the investigation may take and an individuals privacy cannot be kept at stake for
any unspecified period of time.

Common Findings

The significance of a judicial warrant to intercept private telephonic conversations of an

individual has been emphasized in the judicial pronouncements of the American as well as the
Canadian courts. Even in the most compelling and demanding circumstances the Court has been
reluctant to discard the crucial qualification of a prior Court warrant for wiretapping. The Courts,
while harmonizing laws related to national security and an individuals privacy, have often held
that the right of an individual to privacy cannot be put to risk due to uncertainty of the time
period involved in such investigations. To avoid any arbitrary actions, the Courts have held a
judicial warrant as quintessence for wiretapping.

Conclusion

Right to privacy is not listed as a fundamental right in the Indian Constitution.

However, Supreme Court has asserted that the Right to privacy forms a part of Right to life
under Article 21, Constitution of India, through its judicial pronouncements over the years. 55
Right to privacy having been affirmed as part of Article 21, the Court in P.U.C.L. case looked
at the provisions of Section 5(2) in light of the Rajagopal case 56 and whether it interfered with
the right of an individual to keep his telephonic conversations private. Although the court
declared Section 5(2) to be constitutionally valid, the same was found to be lacking procedural
safeguards. To rectify this anomaly the Court had laid down the procedure as a transitory
measure, to be adhered to in cases of interception of private telephonic conversation. Although in

55
In Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148, Court recognized right to privacy as a fundamental
right which might be located among the un-enumerated fundamental rights. However, in R Rajagopal v. State of
Tamil Nadu,, AIR 1995 SC 264, Court recognized the right to privacy to be covered under the right guaranteed by
the Constitution in Article 21
56
Id.
13
pursuance to the procedure laid down by Court, the Central Government inserted Rule 419-A in
Indian Telegraph Rules, 1951, it is ironical that both the court and the legislature appointed the
executive branch as the warrant issuing authority.

Executive bodies, as observed by the American 57 and Canadian courts, are not expected
to be neutral and disinterested and hence the need for judicial authorities to be the warrant
issuing body. The stress laid upon the judicial involvement in the warranting of an intercepting
action cannot be overlooked. The Canadian Supreme Court, in comparison to its American
counterpart goes a step further and requires a judicial warrant even in cases of urgency, and has
recently invalidated a provision in Criminal code authorizing police officers to wiretap without a
judicial warrant. 58

Reckoning with the observations of the American and Canadian courts, the safeguards
put in place through the amendment of Indian Telegraph Rule, 1951 seem to be insufficient and
ineffective to protect the right to privacy of an individual. A comparison with other countries
insinuates an urgent need to amend the Indian Telegraph Act, 1855 to require a judicial warrant
before proceeding with interception of telephonic conversation. Indian Courts and Legislature
have failed to realize that an executive order defeats the safeguards of the right to privacy,
owing to unregulated and arbitrary powers conferred upon the executives when it may also be
the prosecuting body.

The Radia Tapes Controversy 59 is an example of flagrant abuse of provisions of Section

5(2), Indian Telegraph Act. Even in the absence of pre-requisites like public emergency or
interest of public safety, CBDT (Central Board of Direct Taxes) ordered interception of

57
In Katz v. United States, 389 U.S. 347 (1967), Supreme Court of United States of America,made it mandatory for
the authorities to take a judicially sanctioned warrant before wiretapping any individuals conversation. See also
Kyllo v. United States, 533 U.S. 27 (2001),,where the Court while narrowing the scope of the word search has
upheld the requirement of a judicial warrant for the narrowed down meaning afforded to the word search
58
R. v. Tse, 2008 CarswellBC 1948
59
IBN Live, Stung by Radia Tape, Tata may move SC (November 29,2010), http://ibnlive.in.com/news/stung-by-
radia-tape-tata-may-move-sc/136025-3.html.
14
messages. 60 There may be innumerable cases similar to this where executive branch has abused
its power to authorize such interception of messages and interfered with the right to privacy of
an individual. Presently, Supreme Court of India is hearing matter 61 concerning the unlawful
interception of telephonic conversations of the well-known industrialist Ratan Tata. The decision
on the interception of telephonic conversations is eagerly awaited and would be interesting to see
if the Court places any reliance on the judgments passed by the Courts of America and Canada
which are equally vibrant democracy as ours.

The need for exercising the power of phone tapping with utmost care and under very
defined rules, procedures and mechanisms so that they are not misused, was also realized by the
Honorable Prime Minister of India, Manmohan Singh, while reacting to the infamous Radia
tapes controversy. Here are a few excerpts from the PMs observation:

We are aware of the nervousness in some sections of corporate sector about

phone tapping. While these powers are needed, they have to be exercised with
utmost care and under much defined rules, procedures and mechanisms so that
they are not misused.

We need solutions to prevent public access to phone conversations outside legal

framework of the government I am asking Cabinet Secretary to look into these
issues and report back to the Cabinet within the next month. 62

The rising pressure from the corporate sector, the need for safeguarding of an individuals
right to privacy and concerns such as the national security, have the government performing a
delicate act of balancing. The reactions and remodeling of the existing laws concerning phone-
tapping, when some of the other larger democracies 63 recognize the necessity of a judicial

60
Hindu, CBDT ordered Radia Tapes probe, not government: Chidambram (November 30, 2010),
http://www.thehindu.com/news/national/article923825.ece
61
W.P. (Civil) 398 of 2010
62
NDTV, Phone-tapping powers cant be misused: PM (December 15, 2010),
http://www.ndtv.com/article/india/phone-tapping-powers-cant-be-misused-pm-72499,
63
See, Katz v. United States, 389 U.S. 347, 356-357 (1967); Kyllo v. United States, 533 U.S. 27 (2001); R. v.
Araujo, 2000 CarswellBC 2440; R. v. Tse, 2008 CarswellBC 1948.
15
warrant, would be an exciting turn of events. However, irrespective of the existing laws and
systems in place, any laws, procedures and rules, overlooking the exigent and indispensable
requirement of a judicial warrant would be inadequate, discretionary and undemocratic.
Considering this, the National Telecom Policy, 2011 would be an appropriate platform to counter
the shortcomings of the existing laws and procedures. Further it would be an acknowledged
effort towards regulating unlawful interception and maintaining the fine balance between
security concerns and safeguarding the right to privacy of any individual in worlds largest
democratic nation, India.

16