Legal questions over Naidu tape’s source

Updated - July 08, 2017 04:46 pm IST

Published - June 09, 2015 02:57 am IST - NEW DELHI:

Even as the Telugu Desam Party accuses Telangana Chief Minister K. Chandrasekhar Rao of illegal phone tapping, the ambiguity on the actual source of the recording of what is a conversation allegedly involving Andhra Pradesh Chief Minister Chandrababu Naidu raises serious questions of law.

It is still unclear whether this alleged conversation was tapped – now denied by the Telangana government – or doctored as claimed by Mr. Naidu or the result of a sting operation, which is still a legal grey area. The Supreme Court has categorically said in 2014, in the Rajat Prasad versus CBI case, that sting operations have definitely no blanket immunity and further raises questions on luring a person to entrap him.

If this is a case of wire-tapping as alleged by the TDP, procedural safeguards have to be mandatorily followed. Besides, the Supreme Court’s landmark judgment in the People’s Union for Civil Liberties versus Union of India in 1996 holds that the state can put a phone-tap for a limited period on someone in the case of a stated “public emergency.”

But it is pertinent that approval for a wire-tap should be in adherence to procedural safeguards under the Indian Telegraph Act, 1885 and the Supreme Court’s landmark judgment in 1996 lays down stringent conditions on snooping.

An order for telephone-tapping in terms of Section 5(2) of the Indian Telegraph Act shall not be issued except by the Home Secretary, Government of India and Home Secretaries of the State governments. In this case, if there was any phone-tapping at all, permission should have been sought from the Telangana Home Secretary.

In urgent cases, the power may be delegated to an officer of the Home Department of the Government of India and the State Governments not below the rank of Joint Secretary.

The interception shall only continue for two months and not exceed six months. A Review Committee consisting of Cabinet Secretary, the Law Secretary and Secretary, Telecommunication at the level of the Central government should vet the operation. In the States, the panel would consist of Chief Secretary, Law Secretary and another member, other than the Home Secretary.

However, with the Telangana government denying wire-tap, an alternative is a sting. A string of judicial precedents have seen the constitutional court apply its mind to this grey area.

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