Phone tapping laws in India is in real bad shape. Rather, it cannot be properly termed as a valid and constitutional phone tapping law. The Indian telegraph act 1885 carries few provisions under which the Indian government and its agencies can tap phones in India.However, these provisions and outdated law are clearly in violation of constitutional provisions and constitutional safeguards. As on date, we have no constitutionally sound lawful interception and phone tapping law in India. Even the proposed the central monitoring system project of India (CMS Project of India) is also not supported by any legal framework.
As on date, phone tapping in India is not performed constitutionally and this unconstitutional phone tapping in India is a “constitutional failure of India”. Constitutional phone tapping law in India is urgently needed to be formulated so that this illegality and unconstitutionality can be cured.
Instead of bringing suitable laws to curtail illegal and unconstitutional phone tapping and e-surveillance in India, Indian government is doing the exact opposite. Big brother in India is overstepping the constitutional limits. Not only the phone tapping has been increased in India by both governmental and private players but even surveillance of Internet traffic in India and Internet censorship in India has been increased.
Now it has been reported that very soon the Centre would have direct access to the telephone conversations of Indian citizens and organisations as the Department of Telecommunications (DoT) has developed capabilities to intercept phones without phone operator’s assistance. At present the central monitoring system (CMS) is at trial stage where Delhi and Haryana regions would be covered by establishing the main server in New Delhi. It would take another 12 months before the system is officially operational.
With this we may have two separate telephone tapping systems in India. The first is managed by the Home Ministry of India and now the DoT would have its own telephone tapping system at place. The DoT would be required to set up separate servers in each State, depending upon the requirements and the number of subscribers. While the facility in Delhi and adjoining States are likely to be ready by year-end, it might take at least another couple of years before servers are established across India.
An interesting functionality of the CMS is that irrespective of operators, lines would be tapped at one centralised location, which will be manned round-the-clock by officials of the government agencies.
While this may help in proper law and order enforcement yet the misuse of this facility is very much possible. This is more so when there is neither a legal framework nor constitutional safeguards to prevent abuse of CMS in India. It would be appropriate if a constitutional lawful interception law is formulated in India immediately.
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