BEYOND " telephone tapping" lies the awesome world of surveillance, of which tapping is a part.
The excuse for all this is anti- terrorism. The principle put forward: " Trust the government". The revelations in April this year show Sharad Pawar, Digvijay Singh, Nitish Kumar and Prakash Karat's phones were tapped. This was political espionage. It did not have the remotest nexus with terrorism.
The targets of snooping were political competitors and the Opposition. Like Watergate. But Watergate brought down a President.
India's Manmohan Singh does not even want a Joint Parliamentary Committee ( JPC).
Way back when I was arguing the phone tapping case, I relied on L. K. Advani's dossier of 1988 which showed that the targets of tapping were Messrs A. B. Vajpayee, Charan Singh, Jagjivan Ram, Chandra Shekhar, G. K. Reddy, Arun Shourie, Kuldip Nayyar, Tavleen Singh, President Zail Singh and Y. V. Chandrachud, Chief Justice of India. This did not prevent the Supreme Court allowing the government a broad power to tap, while recognising the absence of legitimising procedure under the archaic and overbroad Telegraph Act of 1885.
Confusion was created by lawyer Kapil Sibal conceding acceptance of a system " short of prior judicial scrutiny". Judicial permissions precede " search and seizure". Surveillance and tapping should be no different. In 1997, the Supreme Court was content with " guidelines" on who, what, how and oversight. A joint secretary could authorise specific taps, valid for two months and extendable ( destruction of materials if not required) and with an Oversight Committee consisting of government secretaries drawn from the ministries of home, law and telecommunications. Enmeshed in secrecy, the " guidelines" were a flop. The Supreme Court lost its chance to counter invasions of privacy while blessing an invasive surveillance.
Terrorism has provided some kind of false utilitarian justification for surveillance.
Post 9/ 11 in 2002, the President of the US authorised intercepting communication in what has come to be known as the " Terrorist Surveillance Programme". This was publicly acknowledged after revelations in The New York Times in 2005. Codename Pinwale of 2005 devised how a data base of electronic communications could be used and misused.
The original US law of 1978 was breached and went beyond orders given by the Foreign Intelligence Surveillance Court — not just of phones but also email — in massive exercises of " over- collection". The Bush regime's practice was legitimised by a 2008 amendment which meant that much of spying would be authorised and undetected.
In the Al Haramain's case ( 2010), Judge Walker declared that following Congressional Statutes was not optional. Though federal Judge Anna Taylor in 2006 declared unauthorised wire- tapping illegal, the case lost its adversorial charm by appellate reversal on the fact that tapping itself was not proved. Ironically, when the Bush changes were made in 2008, the then Senator ( now President) Obama voted for them! The present law now requires a warrant for eavesdropping on an American citizen or organisation in America, but not for the rest of the world — or for all of us.
After considerable fumbling when an internal Lord Diplock Committee looked at taps after the event, the UK's Interception of Communications Act, 1985, was superseded by a Regulation of Investigatory Powers Act, 2000, which along with the Police Act, 1997, permitted covert surveillance. These changes came because the House of Lords in Khan's case ( 1997) showed amazement at the lack of statutory regulation on snooping.
The present UK legislation has been called a " snooper's charter" and may be specifically " directed" or generally intrusive.
Covert and especially intrusive surveillance, even though authorised by authority ( eg. secretary of state), is too widely permitted for a broad spectrum of serious crime prevention, economic wellbeing and national security.
We concentrate on the US, England and Europe who have declared an unofficial war against terrorism to enable them to conquer countries through war in the name of peace; and maintain a global surveillance for the purposes of arrest, torture and rendition. The European Court in Khass ( 1978) and Koll ( 1998) frowns on unauthorised surveillance. But the world of " intelligence" has grown into an uncontrollable monster of which India is an inefficient but dangerous part.
It is now well- settled that the UK's war on Iraq was contrived. Surveillance of Muslims leading to their house arrest in the UK was set aside by the House of Lords in June 2009. What kind of place does India want in this ' global network'? We stoop to conquer, to try and get access to Headley; and are spurned, with arrogance, by a brazen US, who does not even pretend to be wily. Our location on this greatest of all global surveillance is that of a junior cadet — trusted when convenient.
But is a US- directed snooping over the whole world a good thing — an evil necessity? To be sure, intelligence is needed even if it has failed us in Mumbai or Dantewada.
To some extent, POTA admits to access phone records as part of investigation.
But questions of admissibility of evidence do arise where evidence is illegally obtained. India follows the rule that even if the evidence comes from an illegal poisoned tree, it may be admitted.
How far can all this go? Remedy It can be ruthlessly argued that our phone privacy is less important than national security. But that is not how it works. The recent revelations show that espionage, surveillance and tapping have little to do with security issues. A state machinery can and has been twisted to work for its own ends — including the personal, private, political, evil and selfish.
It is master- minded by those who have a sophisticated machinery of gigantic proportions in their hands. Can such a surveillance machinery, including phone tapping, be left without surveillance overseeing its processes? Unfortunately the Supreme Court of India's phone tapping decisions ( 1997), left the whole exercise to semi- senior bureaucrats who may not be ( and, often, are not) above corrupting political influences or personal vendetta. But even these " guidelines" have been breached. Who authorised the present taps? No one is spared — not even politicians. No less unfortunately, the Prime Minister does not even want a JPC. The reason is obvious. Beneath and behind every surveillance, there is a can of worms — which may, or may not lead to Race Course Road or even Janpath.
True, JPCs have been used rarely since Bofors ( 1987), stock market fraud ( 1992 and 2001) and pesticides ( 2003). But we need a JPC. Not a Liberhan- style Commission.
A JPC would ( a) investigate the efficacy of the Supreme Court's guidelines; ( b) punish infractions ( for this is as bad as Watergate); and ( c) carefully consider a proper system of surveillance — an exercise that has never taken place in India since the nineteenth century.
The Opposition should stop playing games with " cut- motions" to embarrass the government and precipitate musical chairs to ward of confidence- motions. It should not just be concerned with dislodging the government, but with good governance itself. Today " good governance" requires a thorough investigation of those who snoop into our lives with possibly malevolent intent to misuse the information.
Only a JPC can form an effective probe.
Denying a JPC suggests there is something to hide. The world of " Big- Brother" is upon us — the Leviathan of our times. Someone has to watch " Big- Brother" before he gets bigger and ceases to be a brother.