Phone taping is a controversial subject in India especially when private individuals are openly doing the same in an unregulated manner. The position has been made complicated due to absence of dedicated privacy laws and data protection laws in India.
The Information Technology Act, 2000 also contains unconstitutional provisions that empower our government and its agencies to do e-surveillance and eavesdropping on electronic communications.
The net result is that we have no constitutionally sound lawful interception law in India as on date. For instance, the cell site data location laws in India and privacy issues must be suitably regulated by a new law. Similarly, the cell site location based e-surveillance in India and surveillance of internet traffic in India must also be part and parcel of a new legislation.
Indian government is presently working upon the draft privacy law of India and the same is expected to be put before the Indian Parliament in its monsoon session. One of the clauses in the proposed privacy law prescribes a stringent penalty of Rs. 2 Crore for illegal phone tapping in India.
As on date, only government agencies, on prior permission from the Home Ministry, are allowed to tap telephone calls. However, law enforcement agencies, including those under the Finance Ministry and the CBI, are allowed to tap phones of any individual for security or operational reasons for 72 hours even without permission from the Home Secretary.
In India there is no requirement to obtain a court warrant to engage in e-surveillance and eavesdropping. Further, with the introduction of central monitoring system of India, the scope for judicial intervention has been absolutely ruled out.
It is not difficult to ascertain that the proposed penalty may act as a deterrent to private individuals alone. For Indian government and its agencies, this clause has no relevance as they are the final arbiter for deciding the need and legality of any phone tapping and e-surveillance till the matter is leaked out. Even then Indian judiciary would not take any stringent action against the Indian government as no such action has been taken in so many decades till now.