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Home Ministry, TRAI resist lawyer’s attempt to know if his phone was tapped

The hearing took place in the backdrop of the Pegasus revelations with TRAI initially arguing that revealing the information would render the surveillance infructuous. 

The Ministry of Home Affairs and the Telecom Regulatory Authority of India have resisted attempts by a Supreme Court lawyer to know if his phone was tapped, according to court documents shared with MediaNama by the lawyer’s attorney in the Delhi High Court. Live Law first reported on developments in this case. Kabir Shankar Bose, a New Delhi-based lawyer, filed RTI applications to TRAI and MHA after receiving “credible information” that his phone was being tapped. When both organisations refused to confirm if this was the case, Bose appealed his way up to the Central Information Commission, which directed TRAI to provide this information.

TRAI appealed to a single bench of the Delhi High Court, which allowed the appeal. A larger division bench on Monday stayed that appeal, and indicated that the “balance of convenience” was on the government’s side, Live Law reported (the Delhi High Court has not uploaded a copy of the latest order in the case yet). Bose was appointed to represent the Bharatiya Janata Party-led government of Tripura at the Supreme Court in June. He had filed his RTI with TRAI first on July 5, 2017. The next hearing is on December 13.

This protracted legal battle was on the verge of setting a precedent for individuals who wanted to know if their phones were subject to legal interception. If the case is appealed up to the Supreme Court (as Bose indicated to MediaNama that it might be), the final say in this case may decide the extent to which phone tapping can happen behind closed doors.

This case also draws renewed significance in the backdrop of the Pegasus Project revelations, where prominent politicians, journalists, and activists allegedly had their devices hacked by spyware developed by Israeli firm NSO Group for “vetted governments”. The union government has not categorically denied using Pegasus spyware.

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Saying if he was tapped would beat the point: TRAI

TRAI argued in an appeal that it did not have the legal powers to ask telecom operators if Bose’s number was indeed tapped, as interception orders are issued by Joint Secretary officers at the state and central level. However, it started its appeal with a different argument, that revealing to people if their calls were tapped would make the interception pointless:

The impugned judgment is contrary to the provisions of law in as much as the law enforcement agencies are authorized to intercept/tap the phones and any disclosure would render the entire exercise infructuous. […A]ny information pertaining to any alleged phone tapping is such information, disclosure of which would prejudicially affect the sovereignty and integrity of the nation. — TRAI appeal

Timeline:

  • July 30, 2017: After Bose’s RTI and his subsequent first appeal were rejected, he approached the Central Information Commission.
  • September 12, 2018: Over a year later, the CIC ruled in Bose’s favour.
  • October 20, 2018: TRAI appealed to a single bench judge of the Delhi High Court, which dismissed the regulator’s appeal reasoning that TRAI could simply ask the telecom operator if Bose’s number was tapped. “In view of the above discussion and legal position, I found no illegality in order dated 12.09.2018 passed by Central Information commission,” Justice Suresh Kumar Kait ruled.
  • December 15, 2018: After this, the regulator appealed up to a larger division bench which is still hearing the matter.

TRAI evading responsibility: Bose

In a rejoinder to TRAI’s appeal, Bose said that the regulator’s arguments were an “after-thought,” arguing that

[t]he present appeal is an attempt to deny the right to information provided to every citizen under the RTI Act. The grounds raised in the present appeal are a mere after-thought, fabricated as a device to evade the responsibilities upon public authorities under the RTI Act.

Bose accused TRAI of “concealing vital facts” and said that they had surfaced new arguments that were not discussed before the single-judge bench. “The act of disclosure of the information, sought for the Respondent, to the Respondent himself, in no manner affects either the sovereignty, integrity or the security of the nation,” Bose argued in his rejoinder, saying that Supreme Court precedent allowed even confidential information to be filed in confidence with the court.

“The Appellant [TRAI] is not only guilty of suppresio veri but also suggestio falsi,” Bose’s rejoinder said (the Latin terms mean exactly what they sound like). Bose cited the constitutional right to privacy in his rejoinder too.

Interception records frequently destroyed: Home Ministry

The MHA was impleaded into the case as it was likely the only body that would have the capacity to authorise Bose’s surveillance (he lives in Delhi, a union territory where law enforcement is conducted by Delhi Police, which reports to the union government). In a filing, it repeated TRAI’s argument that disclosing surveillance targets would render the activity pointless. But it also pointed out something else that it had mentioned in response to a Parliament question: that interception records were frequently destroyed.

When the Review Committee [appointed by the central or state governments to exercise oversight over call interception] is of the opinion that the directions are not in accordance with the provisions referred to above, it may set aside the directions and order for destruction of the copies of the intercepted message or class of messages. — Home Ministry rejoinder, September 2019

“It is submitted that the grave threats to the country from terrorism, cross border terrorism, cyber crime, organized crime, drug cartels cannot be understated or ignored and a strong and robust mechanism for timely and speedy collection of actionable intelligence including signal intelligence, is imperative to counter threats to national security,” the Home Ministry argued, asking the Delhi High Court to dismiss the plea.

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I cover the digital content ecosystem and telecom for MediaNama.

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