On August 12, 2009, in these very columns, I had underscored the need to provide India’s law enforcement and intelligence agencies with a legal architecture that balances the twin imperatives of security and civil liberties. In the wake of the recent debate on alleged phone tapping, this seems to be right moment to re-visit the issue.
The evolution of the debate on the twin issues of surveillance of electronic communication and reform of intelligence paradigms both in Britain and India has uncanny parallels. In both instances the process is in it’s embryonic stage, was kick-started externally, driven judicially, rather than springing from internal imperatives. While in Britain the process has fructified into legislation, in India it remains mired by institutional resistance. However there are useful lessons that can be learnt from the British experience that may help shorten the learning curve.
The decision of the European Courts of Human Rights in the 1984 James Malone case, that the tapping of his phone had contravened his right to privacy guaranteed under Article 8 of the Human Rights Convention led to the 1985 Interception of Communication Act in Britain. Though Malone could not succeed in high court, Judge Sir Robert Meggary observed that “telephone tapping is a subject that cries out for legislation”.
Compare this with the pronouncement of our Supreme Court in PUCL vs UOI 1997(1) SCC 301. Justice Kuldip Singh observed: “In the absence of a just and fair procedure for regulating the exercise under Section 5(2) it is not possible to safeguard the rights of the citizens guaranteed under Article 19(1) (a) and 21 of the Constitution of India.” Section 5(2) is that provision of the Indian Telegraph Act that under certain circumstances empowers the State to eavesdrop on citizens. The Bench laid down the guidelines for phone-tapping that hold the field even today.
By the mid-1980s, British juries repeatedly expressed their reluctance to convict people under the discredited official secrets legislation. The inability of the British government to prevent the telecasting of a documentary in which a former security service officer Cathy Massiter claimed that prominent members of the peace movement and trade unions were under MI5 surveillance coupled with the public ridicule it invited while attempting to obtain an injunction in the Australian Courts against the publication of a former security service official Peter Wright’s memoirs (Spy Catcher) and the decision yet again of the European Court of Human Rights in the matter of a Swedish Marxist-Torsten Leander, convinced the M15 leadership that it needed a sound legal footing.
After intra-agency deliberations, MI5’s annual report for 1987-88 concluded: “There is complete acceptance among the staff of the desirability of legislation for the security service.” This paved the way for the enactment of the Security Services Act in 1989 and the Intelligence Services Act in 1994.
Again compare this with the contours of the Indian debate. There have been repeated demands to repeal the Official Secrets Act 1923. The continuing prosecution of Tehelka co-founders Tarun Tejpal and Aniruddha Bahal on the strength of a specious FIR filed against them in 2001 to harass them for Operation West End exemplifies the absurdity of the situation. These demands have become even more urgent after the enactment of the Right to Information Act in 2005, as the inconsistency between these two pieces of legislation stand out in sharp contrast.
The parallels do not end here. In the wake of Opposition charges that the British government had ignored intelligence warnings of an impending Argentinian invasion of the Falklands, the government appointed a commission of six Privy Counselors headed by Lord Franks to undertake the Falklands Islands Review. By establishing the Franks Committee, Prime Minister Margaret Thatcher conceded in practice the principle of an oversight committee for the intelligence community. This paved the way for the establishment of a Parliamentary Standing Committee on Intelligence and Security.
In India, the furore over intelligence lapses before the Kargil intrusions in 1999 impelled the Vajpayee government to establish the Kargil Review Committee and a Group of Ministers was set up to implement the panel’s recommendations. While it may not have amounted to a parliamentary review, what the Vajpayee government did established the canon of oversight on intelligence structures.
The time has arrived to abandon the two puritanical constitutional doctrines that have perpetuated opacity around the intelligence structures. First, the dogma that since intelligence operations require secrecy, therefore, the word intelligence itself is taboo. Second, the precept that Parliament must entirely abdicate its powers in this field to the executive.
Victorian naiveté that enemy agents are found under Gooseberry bushes and intelligence is brought by storks must cede to the next logical step i.e. providing the intelligence services with a legal framework including a surveillance of electronic communications law complemented by robust parliamentary oversight.
Manish Tewari is a Supreme Court lawyer and an MP
The views expressed by the author are personal