The DIG CBI Manish Kumar Sinha’s petition in the Supreme Court on 18 November not only opened a can of worms, but also raised the issue of privacy and illegal phone tapping.
In his petition, Sinha alleged instances of top officials, right from the National Security Advisor, to the MoS for Coal, to the Union Law Secretary, intervening in the ongoing bribery investigation against the CBI’s Special Director Rakesh Asthana.
Sinha and CBI’s Deputy SP AK Bassi mentioned in their petition a series of telephonic conversations between senior officials in the government. In one of the conversations, the Special Secretary R&AW, Samant Goel, allegedly told Somesh, the middleman, “Do not come to India at any cost”.
Sinha’s petition also mentioned that “The NSA informed the Special Director CBI Rakesh Asthana about registration of FIR” on 17 October. In return “Rakesh Asthana reportedly made a request to NSA that he should not be arrested”.
The Quint spoke to former senior CBI officers and Ministry of Home Affairs officers on condition of anonymity to find out whether CBI officers illegally tapped the phones of senior government officers. But this begs more questions:
Can the CBI intercept our phones without the permission of the competent authority? If yes, then under what circumstances can they do so?
How common is this kind of phone-tapping?
A former CBI director had this to say:
Did CBI illegally tap the phones of senior government officers in case of bribery against Rakesh Asthana?
“The CBI Special Unit can put anybody’s mobile phone under surveillance to investigate a case, provided the CBI Director has granted permission to the Investigating Officer (IO). Simultaneously, within three days, the Director has to inform the Ministry of Home Affairs about the tapping and confirm permission within seven days. In the bribery case against Asthana, it appears that mobile phones of those who are named in the FIR were under surveillance. It was not illegal on the part of the CBI Director to give phone-tapping directions to the IO, if he had at the same time moved the files seeking permission from the competent authority.”
According to Section 5(2) of the Indian Telegraph Act, 1885, the Centre and the State Governments have a right to tap phones. The investigating agencies can intercept calls of individuals merely on suspicion in case of public emergency or in the interest of public safety.
The procedures and guidelines for lawful interception were laid down by the Supreme Court in the case of People's Union for Civil Liberties v. Union of India. The court ruled that telephone tapping is a serious invasion of an individual's privacy. However, the agency can carry out lawful interception after securing permission from the competent authority.
According to a former CBI director:
Can investigating agencies intercept anyone’s phone?
“The law agencies can put anybody’s phone under surveillance merely on the basis of suspicion, sometimes it is done only to extract information and sometimes intercepted calls are used as evidence. If the agency wants to use calls as evidence in the court then it is mandatory to take permission from the Home Secretary, without which it shall not be considered as admissible evidence.”
Does the CBI illegally tap phones?
“The CBI does intercept calls illegally just to extract information especially in trap cases, to know exactly when the bribe money will exchange hands. Sometimes illegal interception goes on for months. But illegal interceptions cannot be used as evidence.”
The Quint asked a former Home Ministry official:
Under what circumstances can law agencies use tapped conversations as evidence?
“Only those telephonic conversations can be used as evidence in court which have the permission of the Home Secretary. Without it, the court will not take it as an admissible evidence.”
According to a former CBI director:
Can the investigative agency initiate phone tapping, only after the FIR is registered?
“The agencies can start tapping phones even before registering the FIR. Within three days, from the day the phone has been tapped, the CBI Director has to seek permission from the Home Secretary and get confirmation within seven days. The file seeking permission is confidential and is carried by hand, by a Joint Director-level officer to the Home Ministry. The JD has to show the file personally to the Home Secretary and explain the matter to him. Generally, the process is completed within a day.”
What if the authority denies permission?
“If the authority denies permission, then the agency cannot use the recordings as evidence and also has to destroy them at the earliest.”
Does the authority’s job end with the issuance of permission?
“No. The permission is valid for only two months from the date of issuance. However, the total period of interception cannot exceed six months. The agency has to seek permission again from the authority to continue intercepting the phones. On the other hand, the authority has to maintain records of intercepted communication, a list of those people who are privy to the intercepted recordings or are in possession of the same, and the extent to which the material is copied.”
One petition after another in the Supreme Court on the CBI row has snowballed into a major crisis. Now it is up to the SC to decide whether it orders probe on the telephonic recordings of the senior officials as claimed by CBI officers Sinha and Bassi.
The SC is also likely to look into whether CBI Director Alok Verma followed procedure and wrote to the Home Secretary seeking permission to intercept calls of those who were involved in the bribery case against Asthana.
Now, if Verma did follow procedure, then what is the current status of the file?
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