The hearing took place against the backdrop of the Pegasus revelations, with the TRAI initially arguing that disclosing the information would render surveillance sterile.
The Ministry of Interior and Telecommunications Regulatory Authority of India have opposed attempts by a Supreme Court attorney to find out whether his phone was tapped, according to court documents that the attorney for the attorney of the attorney of the attorney in Delhi gave to MediaNama. Live law first reported about the developments in this case. Kabir Shankar Bose, a New Delhi-based attorney, filed RTI claims with TRAI and MHA after receiving “credible information” that his phone was tapped. When both organizations refused to confirm this, Bose appealed to the Central Information Commission, which instructed TRAI to provide this information.
TRAI appealed to a single chamber of the Delhi High Court, which upheld the appeal. A major division bank on Monday withheld the appeal, indicating that the “cheapness of convenience” was on the government’s side, Live Law reported (the Delhi Supreme Court has not yet uploaded a copy of the latest order on the case). Bose was appointed represent the Bharatiya Janata Party-led government of Tripura before the Supreme Court in June. He submitted his RTI to TRAI for the first time on July 5, 2017. The next hearing is on December 13th.
This lengthy legal battle was about to set a precedent for individuals who wanted to know if their phones were legally monitored. If the case is appealed to the Supreme Court (as Bose told MediaNama), the final say in the case can determine the extent to which phone wiretapping can be done behind closed doors.
This case is re-emerging in light of the Pegasus Project revelations when the devices of prominent politicians, journalists and activists were allegedly hacked by spyware developed by Israeli company NSO Group for “audited governments”. The union government has not categorically denied the use of Pegasus spyware.
To say if it was tapped would miss the point: TRAI
TRAI argued in an appeal that it did not have the legal powers to ask telecom operators whether Bose’s number was actually tapped, as wiretapping orders are issued by officials of the Joint Secretariat at state and central levels. However, it started its appeal with another argument that tapping calls would be pointless if it was revealed to people if their calls were being tapped:
The judgment under appeal violates the law in that law enforcement agencies are empowered to tap / tap the phones and any disclosure would render the entire exercise sterile. […A]Any information relating to alleged phone wiretapping is information the disclosure of which would adversely affect the sovereignty and integrity of the nation. – TRAI objection
- July 30, 2017: After Bose’s RTI and subsequent first appeal were denied, he turned to the Central Information Commission.
- September 12, 2018: Over a year later, the CIC ruled in Bose’s favor.
- October 20, 2018: TRAI appealed to a single judge in the Delhi High Court, who dismissed the regulator’s appeal on the grounds that TRAI could simply ask the telecommunications operator if Bose’s number had been tapped. “In view of the above discussion and legal situation, I have not found any illegality with the decision of the Central Information Commission of September 12, 2018”, Judge Suresh Kumar Kait ruled.
- December 15, 2018: The regulator then appealed to a major departmental bank that is still dealing with the matter.
TRAI evades responsibility: Bose
In response to TRAI’s appeal, Bose said the regulator’s arguments were a “reflection” and argued that
[t]The present appeal is an attempt to deny every citizen the right to information under the FTI Act. The reasons given in the present complaint are only intended retrospectively in order to evade the responsibility of the authorities under the FTI Act.
Bose accused the TRAI of “hiding vital facts” and said they had brought new arguments to the surface that were not discussed in the single judge’s bench. “The disclosure of the information solicited for the defendant to the defendant itself in no way compromises the sovereignty, integrity or security of the nation,” argued Bose in his rejoinder, saying that the Supreme Court precedent is even confidential information that is kept confidential with the court Need to become.
“The complainant [TRAI] is not just guilty suppresio veri but also Wrong suggestion“Said Bose’s reply (the Latin terms mean exactly what they sound like). Bose also cited the constitutional right to privacy in his rejoinder.
Often destroyed eavesdropping records: Ministry of the Interior
The MHA was involved in the case because it was likely the only agency that could authorize surveillance of Bose (he lives in Delhi, a union area where the Delhi Police, under the union government, conduct prosecution). In one filing, it reiterated TRAI’s argument that disclosing surveillance objectives would render the activity pointless. But she also pointed out something else she had mentioned in response to a question from Parliament: that the surveillance records were often destroyed.
When the examination board [appointed by the central or state governments to exercise oversight over call interception] believes that the instructions do not comply with the above provisions, it may revoke the instructions and the order to destroy the copies of the intercepted message or class of messages. – Reply of the Ministry of the Interior, September 2019
“It asserts that the grave threats to the country from terrorism, cross-border terrorism, cybercrime, organized crime and drug cartels cannot be underestimated or ignored and that it is a strong and robust mechanism for the timely and rapid collection of actionable information, including signaling information “Absolutely necessary to counter threats to national security,” argued the Interior Ministry, calling on the Delhi Supreme Court to dismiss the case.
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