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No records of lawful interceptions with the government: Ministry of Communications in Parliament

The ministry’s response comes at a time when several Indian parliamentarians are demanding a probe into the reported use of Pegasus to surveil politicians, journalists, activists among many others. 

Responding to a question raised by MP and leader of Communist Party of India (Marxist), John Brittas, in the Rajya Sabha about the lawful interception done by the government and maintenance of its records thereof, Minister of State for Communications Devusinh Chauhan said:

“All the records of lawful interception are destroyed regularly as per provisions contained in Sub-rule 18 of Rule 419A of the Indian Telegraph (1st Amendment of 2014) Rules, 2014 and Sub-rule 23 of Information Technology (Procedure and Safeguards for Interception, Monitoring, and Decryption of Information) Rules, 2009.”

Chauhan also said that no such records are being maintained by the Ministry of Home Affairs. MP John Brittas had, earlier, moved to the apex court demanding a probe by the Special Investigation Team (SIT) over the Pegasus probe.   

Why it matters? The Pegasus spyware controversy has rocked the Parliament, wherein the Government of India is accused of spying on a slew of journalists, opposition party leaders, businessmen, activists, lawyers among many others. Pegasus is spyware, developed by Israeli firm NSO Group, which is sold only to governments and their agencies. A few days ago, IT Minister Ashwini Vaishnaw did not categorically deny the usage or purchase of Pegasus but stated that “any form of illegal surveillance is not possible with the checks and balances in our laws and robust institutions.” It is still ambiguous whether the spyware was administered under section 5(2) of the Indian Telegraph Act, 1885 and section 69 of the Information Technology Act, 2000. However, if it was then the government has no record of such interception as per the above-mentioned provisions which allow it to destroy lawful interceptions regularly. 

GOI’s legitimisation of surveillance under the Telegraph Act 

The Indian Telegraph Act, 1885, and the Information Technology Act, 2000, provide for interception of telephonic and electronic communication respectively. The difference between these two acts is that under the Telegraph Act, law enforcement agencies can tap into conversations only under two cases – “public emergency” or “public safety”. However, the Information Technology Act bypasses these two provisions and allows interception without furnishing any specific reason.

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It’s pertinent to note that IT Minister Ashwini Vaishnaw did not deny the usage of Pegasus spyware in his address to the Parliament last month. On the contrary, he claimed that no form of illegal surveillance had been carried out by the government. 

Back in 2019, then-IT Minister Ravi Shankar Prasad had informed the Rajya Sabha that “no unauthorised interception” had been done when a question was raised regarding usage of Pegasus spyware for snooping on Indian citizens. He had also cited section 69 of the IT Act, section 5 of the Telegraph Act, and the standard operating procedure under which citizens can be legally surveilled by the state.

The Indian government is accused of misusing Pegasus spyware to snoop on journalists, lawyers, activists, and not just leaders of the opposition like Rahul Gandhi but its own ministers as well. The list includes:

  • Ministers in the current Union Cabinet such as Ashwini Vaishnaw, IT Minister; Prahlad Singh Patel, Jal Shakti Minister of State
  • Political strategist Prashant Kishor who led PM Narendra Modi’s 2014 election campaign and was also involved in Mamata Bannerjee’s TMC election campaign for the 2021 West Bengal elections
  • Former Supreme Court Judge Arun Mishra, along with several court officials and lawyers representing Nirav Modi and Christian Michel
  • Industrialists like Anil Ambani, Reliance ADA Group’s corporate communication chief Tony Jesudasan among others
  • Politicians such as the Congress leader Rahul Gandhi as well as TMC leader Abhishek Bannerjee, and former deputy chief minister of Karnataka G. Parameshwara, etc.
  • A close aide of Delhi Chief Minister Arvind Kejriwal, a senior officer at NITI Aayog, and a junior official at PMO

Full Text of Question and Answer 

Will the Minister of Communications be pleased to state: 

(a) Whether it is a fact that Telegraph and Information Technology Act facilitate telephone interception of individuals by competent authority in Government; 

(b) if so, the details thereof; 

(c) the number of persons whose telephones were intercepted from 2016 till today; and 

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(d) the year-wise interception? 

Answer: 

(a)&(b) Lawful interception is under the provisions of Section 5(2) of the Indian Telegraph Act,1885 read with Rule 419A of Indian Telegraph (1st Amendment of 2014) Rules, 2014 and Section 69 of the Information Technology Act, 2000 read with the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009. As per both these Rules, for approving interception, Union Home Secretary is the Competent Authority in case of Central Government and Secretary in charge of Home Department in case of States/UTs. 

(c)&(d) As informed by Ministry of Home Affairs (MHA), the records pertaining to lawful interception are destroyed regularly as per provisions contained in Sub-rule 18 of Rule 419A of the Indian Telegraph (1st Amendment of 2014) Rules, 2014 and Sub-rule 23 of Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009. Such records are not being maintained by MHA.

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