For representative purposes.
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The story so far: The Union Government, on December 6, notified the Telecommunications (Procedures and Safeguards for Lawful Interception of Messages) Rules, 2024 which empower some enforcement and security agencies to intercept phone messages under certain conditions. These rules supersede Rule 419A of the Indian Telegraph Rules, 1951.

What do the new rules state?

The new rules authorise the Union Home Secretary and the Secretary to the State government in-charge of the Home Department as the competent authority to order the interception of any message or class of messages. An officer not below the rank of a Joint Secretary to the Union Government, may also issue such order of interception in ‘unavoidable circumstances’ (without defining such circumstances). The Central Government may also authorise any law enforcement or security agency to intercept messages for reasons specified under Section 20(2) of the Telecommunications Act, 2023.

‘In remote areas or for operational reasons’, the head or the second senior most officer of the authorised agency at the central level, and head or the second senior most officer of the authorised agency (not below the rank of IG Police) at the State level may also issue an order of interception, but the officer will have to submit such an order to the competent authority within three working days of the date of its issuance. If such order is not confirmed by the competent authority within seven working days from the date of issue, such interception shall henceforth cease. The rules also mandate the destruction of records relating to interception every six months by the authorised agency and review committee (unless required for functional requirements or court directions).

How are the new rules different?

First, the condition of interception by authorised agencies only in ‘emergent cases’, has been relaxed. Interception by authorised agencies is now possible if it is not feasible for the competent authority to issue orders in ‘remote areas or for operational reasons’. Second, under Rule 419A, there was no limit for the number of IGP rank officers at the State level who could be authorised for interception. But now, in addition to the head of the authorised agency, only (one) the second senior most officer can be authorised for interception. Third, in case the interception order by an authorised agency is not confirmed within seven days, any messages intercepted shall not be used for any purpose, including as evidence in court.

The Indian Telegraph Act of 1885 had provided the Union Government to make rules for ‘the precautions to be taken for preventing the improper interception or disclosure of messages’, but no such safeguards were framed for a long time. The safeguards and procedure of interception under Rule 419A were notified only in March, 2007, consequent to the directions issued by the Supreme Court in People’s Union for Civil Liberties (PUCL) versus. Union of India and Another in 1996. The Supreme Court, in this case, not only elaborated the terms ‘public emergency or in the interest of the public safety’, but also held that the right to privacy cannot be curtailed arbitrarily without laying down safeguards which are just, fair and reasonable.

What are concerns about new rules?

While the pre-requisite of ‘emergent cases’ for interception by authorised agencies has been relaxed without additional checks, the rules are criticised for not fixing any accountability for the wilful misuse of powers of interception by authorised agencies. The rules are silent about punitive actions if any authorised agency abuses the powers of interception for a period up to seven days, before its confirmation by the competent authority.

R.K. Vij is a former Indian Police Service officer.