On October 2, a phone call between India Today journalist and a family member of a Dalit woman who was allegedly gangraped and murdered in Hathras was leaked on social media. Right-wing propaganda website OpIndia, which flames communal division and spreads hate online, published a report based on the recording maligning Tanushree Pandey, the reporter.

The phone recording it’s unclear where it came from raised questions around government wire-tapping and surveillance of phone calls. In the audio clip, Pandey asks the brother of the deceased to send her a video statement of the woman’s father stating that he was being forced to go to the police station and sign a document saying that the family was “satisfied by the police probe” in the case.

The Hathras alleged gangrape and murder is one of the most politically charged cases of sexual assault since the Nirbhaya gangrape of Delhi in 2012. A case of brutal sexual assault and murder, it has been shrouded in controversy, with the Dalit woman’s body being burnt in the middle of the night without her family’s consent or presence. After the cremation, the administration also sealed off the village, keeping media from reporting on the situation.

The victim’s family was also locked up in their home and their phones were snatched away at one point.

After one audio tape was leaked, Times Now also ran a show based off of ‘leaked’ phone call recordings of people in Hathras village.

Where did the recordings come from? It’s unclear how exactly the conversations were recorded and obtained. It’s possible that either person on the call(s) recorded the conversations with their phones, and that they found their way to social media.

India Today demanded to know why UP government tapped phones: India Today, which runs both its eponymous channel and Aaj Tak, demanded to know the UP government was tapping the phones of its journalist or the victim’s family. “If it was [brother of the deceased]’s phone that was being tapped, then the government needs to answer why are the phones of the grieving victim’s family under surveillance or being tapped” and under which legal provision, per the statement. The recording was illegally released in public “with malafide intentions”. In an interview with Rahul Kanwal, host and news director at India Today, BJP’s IT Cell head Amit Malviya said, “There is a process to record and tap phone calls, you can’t be outraging..”. However, he did not admit or deny whether any phones were tapped in the case.

The Editors’ Guild of India, which describes itself as a “conscience keeper”, on Sunday said it condemned the government’s “reprehensible” phone-tapping of journalists covering the incident. “Worse, the tapped conversation of journalists has been selectively leaked, leading to a social media calumny against them,” it said, adding that “Not allowing media to visit the incident spots and tapping the phone conversation of journalists undermine and obstruct the functioning of the media”.

How phone tapping is governed under Indian law

In India, wire-tapping has been long-governed under PUCL judgment in 1996, wherein the courts laid down the conditions in which telephone conversations can be tapped, and the procedure for doing so. The Supreme Court had clarified that two conditions need to be satisfied for interception under the Telegraph Act. The first condition is that there should be a public emergency (or need to tap in interest of public safety); the second that the interception is necessary in the interest of sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, or for preventing incitement to the commission of an offence. The Supreme Court also laid down some procedural safeguards for phone-tapping:

  1. Only the Home Secretary of Central government or state government can issue a phone-tapping order. In case of urgency, this power can be delegated to a Home Department official not ranking below the Joint Secretary level
  2. Within seven days of the order being issued, the order has to be forwarded to a Review Committee. This Committee has to determine the legality of each order within 2 months of it being issued. It can set aside a non-compliant order, and direct the destruction of intercepted material and its copies. In case the orders are compliant, the committee has to put it on record.
  3. An interception order remains in effect for 2 months, and can be renewed for a maximum period of 6 months.
  4. The government official has to additionally consider whether the required information can be acquired by other means

Meanwhile, the UP government has denied tapping the phone “of anybody, any journalist”.