Cybercrime-A modern Felony.

 

There is no denying the fact that invasion of privacy through phone tapping is undertaken the world over for reasons of national security or serious crimes, but in not a single democratic country the invasion of privacy through phone tapping is as easy as in India. In America, the FBI needs a court order. In Britain, M15 needs special clearance.

Way back in 1950, R. A. Kidwai had accused the then Home Minister Sardar Patel of tapping his phones. When the Congress split in 1969, Congress (O) leaders complained that Indira Gandhi was getting their phones tapped. Former intelligence official M. Krishna Dhar has recorded in his controversial book how even PresidentGeyani Zail Singh's telephones were tapped and even the Rashtrapati Bhavan was Bugged during the Rajiv Gandhi era.

In India there is no legislation or law that guarantees an individual's privacy.The Supreme Court has broadened the ambit of Article 21 of Indian Constitution.which talks about an individual's right to life and liberty so as to include the right to privacy. The Honb'le Supreme Court in the case of Kharak Singh Vs. State of Uttar Pradesh and others took this position. Kharak Singh had lodged a complaint that the police made domiciliary visits to his place of dwelling at odd hours and as such harassed him and invaded his privacy. This was the first time that the court upheld an individual's right to privacy as a fundamental right.

The subsequent development of the right has seen it being invoked in cases,ranging from the right of a prisoner not to be interviewed to the right of confidentiality of an HIV infected person. More significantly from the perspective of the employee's right to privacy, the Supreme Court has held that technological eavesdropping' is also a violation of the right to privacy in the case of People's Union for Civil Liberties vs. Union of India in 1997.

The case arose out of a challenge to Section 5(2) of the Telegraph Act, 1885,which permits the interception of messages in cases of public emergency or in the interest of public safety. The court held that the right to privacy included the right to hold a telephone conversation in the privacy of one's home or office and that tapping of phone, infringed this right.

The Information Technology Act, 2000 in Section 71, makes a reference to privacy in Section 72, where securing access to any electronic correspondence,without the consent of the person concerned, and disclosing such information to any other person has been made an offence punishable with imprisonment for two years,or with a fine of one lac rupees. The provision would not protect the employee from undesirable electronic surveillance by the employer, if the employer does not disclose the information that he has intercepted to anyone else. It is interesting to note that in no country does the right to privacy enjoy constitutionally guaranteed status.

The problem is that since the right to privacy has been equated with a fundamental right, an individual can only bring action against the State and not another private individual or organization. This is because fundamental rights are guaranteed against the state.

The Universal Declaration of Human Rights, in Article 12, states:

No one shall be subjected to arbitrary interference with his privacy, family,

home or correspondence, nor to attacks upon his honour and reputation. Everyone

has the right to the protection of the law against such interference or attacks,

The truth is that virtually anybody in a position of authority can tap

anybody's phone in India. Never mind the police, IB and RAW. The enforcement

authorities can do it. So can the Income Tax people. Or the customs department. Or

the CBI. Or a state intelligence outfit. Or anybody with a grudge.

Unfortunately, most telephone tapping is undertaken for political or personal

reasons. The latest bout of "tu tu, mein, mein'has been sparked off by the alleged

tapping of the telephone of the Samajwadi Party's General Secretary, Amar Singh.

The high-profile Samajwady Party leader has accused the Congress Party boss,

Sonia Gandhi, personally of ordering the phone-tapping. It was alleged that the

tapping was part of a larger conspiracy to sack every Non-Congress government in

the country. First, Samajwadi Party leader Amar Singh's phone was proven to be

tapped and then Tamilnadu Chief Minister Jayalalitha Jayaram alleged that her

phone has been tapped as well. In a country that touts itself as the world's largest

democracy, such incidences prove that the very important fundamental right of

privacy of an individual is in jeopardy.

Nor does this happen at the Centre only. In every state, the chief minister

operates a similar system. Some are more blatant than others. Ten years ago, when

H. D. Deve Gowda was a dissident in the Karnataka Janata Party, his chief minister,

R. K. Hegde, tapped his phone. When Hegde discovered that Gowda was

conspiring with Ajit Singh, ostensibly an independent central observer, he promptly

leaked transcripts of their phone calls to the press.

Unfortunately for Hegde, the public was only mildly perturbed to discover

that Gowda and Ajit were in cahoots; we were more interested in discovering how

he had got the transcripts of their calls. When it became clear that he had tapped

Gowda's phone, the uproar drove Hegde out from office.

Hegde went but the system remained. Chandra Shekhar accused V. P. Singh

of bugging his phone in 1990. But when he succeeded Singh as prime minister a few

months later, he did nothing to end political surveillance once and for all

Clearly, politicians are not going to do anything about it. So, it is upto us as

citizens to demand that the system be made more responsible and more accountable,

The Supreme Court has asked the home ministry to monitor all telephone tapping

but because few ordinary people are aware of the court directive or even, of the

extent of surveillance, the secret state can still do pretty much what it wants.

Quite clearly, there is far more than meets the eye in the phone-tapping

incident. But, be it as it may, it underlines the fragility of citizen's right to privacy

and dignity in a manner which recent sting operations carried out in the name of

public interest have most unfortunately failed to do.

Fortunately, Prime Minister Manmohan Singh has done well to have

honestly acknowledged that "phone-tapping is a very serious matter". Asked to

comment on the Samta Party's charge, he also asserted, "Phone-tapping should not

be there. There are no two views on it." Clearly, there is an urgent need to shore up

public confidence by prescribing a fresh set of guidelines barring the Government

from tapping phones of its rivals. Or else it could turn into a scandalous 'political

tool and trade practice

The need for a comprehensive legislation on sting operations and illegal

phone tapping cannot be exaggerated. It is time for political sagacity and not

political confrontation. After all the issue is not one of political sloganeering but

concerns the right of individuals and their freedom.

We must not make the mistake of arguing that all surveillance is unnecessary.

In present time when terrorist's activities are at a helm, necessary serveillance

through phone tapping can't be denied to safegurd the interest of the nation. But we

should consider the case that if some tapping is inevitable, why can't we follow the

international practice and have some safeguards and checks?

That is a stronger case. And in the current climate of judicial activism, we

might even be able to get the judges to do what the politicians won't-put a new

regulatory system in place.