IS THE EMERGENCY BACK ?

April 25, 2010

The latest issue of the Outlook (3rd May, 2010) carries a shocking report describing how the Government of India has been making use of the latest phone tapping technology to prepare records of telephonic conversations of prominent political leaders including Chief Ministers like Nitish Kumar, Union Ministers like Sharad Pawar, communist leaders like Prakash Karat, and the Congress party’s own office bearers like its General Secretary, Digvijay Singh.

This reminds me of an interesting encounter I had 25 years back. In 1985, one morning a stranger arrived at my house carrying a brief case full of papers. This brief case, he told me, contained ‘dynamite’ which could blow up this Government. He opened his brief case and out poured some 200 sheets of closely typed records of telephonic conversations of many VIPS.

I scanned these papers. I did not find them as ‘explosive’ as that gentleman seemed to presume. Some of those papers were telephonic conversations which I had had with Shri Atal Bihari Vajpayee. What surprised me even more was that those transcripts included tape-recorded conversations not only of opposition leaders but also of eminent journalists and some extremely distinguished VVIPs like Gyani Zail Singh.

June 25th, 1985 happened to be the 10th Anniversary of the Emergency. Addressing a press conference on that day Shri Vajpayee not only recalled other excesses of the Emergency, but referring to the large-scale phone-tapping that used to take place during those nineteen months, told the press:

“I have known for long, that my phone as well as that of my party colleague Advani have been under surveillance. But lately I have gathered that the telephones of many other senior leaders like Chaudhary Charan Singh, Jagjivan Ram and Chandra Shekhar and journalists like G.K. Reddy, Arun Shourie, Kuldip Nayar and G.S.Chawla also are being regularly tapped. But what has really left me flabbergasted is that the Intelligence Bureau has had the temerity to tap the telephones of the President and the Chief Justice also. All this is not only politically immoral but unconstitutional and illegal also.”

In 1996 when Shri Deve Gowda was the Prime Minister, a high level Congress delegation led by former Home Minister, S.B. Chavan complained to him that the telephone of Shri P.V. Narasimha Rao and several other senior congress leaders were being tapped by the U.P. Government. The Prime Minister told these Congressmen that their complaint was without substance. Notwithstanding this denial, Shri Deve Gowda himself later announced that the C.B.I. have been asked to inquire into the matter.

In 1988, a major phone-tapping episode created a stir in Karnataka. The Times of India published the photo copy of an order issued by the D.I.G. (Intelligence) mentioning the names of political persons and some institutions whose telephones were included in the tap-list.

I was a member of the Rajya Sabha at that time and I remember how vehemently Union Home Minister Buta Singh had condemned the Karnataka Government and affirmed that unlike the Hegde Government the Centre was not tapping the phones of any politician or journalist. This statement provoked me to stand up and say: “I cannot say what is being done today. But I have personal knowledge that at least until 1985 your government had been tapping my telephone and the telephones of many other politicians and journalists.”

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In many democracies of the world the legitimacy and limits of phone tapping has been a matter of continuing debate. In the United States, this issue became subject matter of bitter acrimony during the Watergate days. Angry public opinion and the threat of impeachment led to Richard Nixon’s ouster from office. His successor Gerald Ford granted him full pardon. But three years later in a television interview with David Frost (May 19, 1977), Nixon made a sensational statement. He affirmed that burglaries and other crimes are not illegal if ordered by the President !

In 1977, President Carter asked Congress to approve a plan which would make it impossible for the executive to intrude upon a citizen’s privacy without judicial authorization. This plan, Carter contended, would successfully resolve the “inherent conflict” between national security and the basic right to privacy of a citizen. Subsequently legislation has been enacted wherein all security authorities, including the FBI, have been obligated to seek prior judicial approval for any wire-taps.

In Britain, there is no law governing wire-tapping. But several parliamentary committees have gone into the question in depth. In 1957, a three-man committee of Privy Councillors headed by Norman Birkett was set up to inquire into the “interception of communications”.

The Birkett committee described wire-tapping, or for that matter, all forms of intercepting private communications as “inherently objectionable”, but felt that the practice may be permitted within certain clearly defined areas, and with appropriate safeguards. It laid down that wire-tapping may be allowed to the police and security agencies only for the purpose of crime investigation or to check subversive or espionage activity. Even for this field, the committee laid down rigorous guidelines. Till date, no one in Britain has ever accused their government of abusing these powers.

What is really required in this context is to set up a parliamentary committee on the lines of the Birkett committee to examine all aspects of the problem, scrap the outdated Indian Telegraph Act of 1885 and replace it by a new legislation which forbids invasion of an ordinary citizen’s privacy, but which formally recognizes the right of the State to use the latest IT devices of interception to deal only with crime, subversion and espionage. The law must provide statutory safeguards which make it impossible for Government to abuse its powers against political activists and pressmen.

L.K. Advani
New Delhi

April 25, 2010

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