Naidu vs KCR: The right to tapping telephones in corruption cases
The fight between the Andhra Pradesh and Telangana Chief Minister will finally be decided on the question of legality. While the cash for MLAs issue appears to be gradually going into back burner, the question that would be raised whether the phones were tapped legally.
The Anti Corruption Bureau which is probing into this case says that there is no bar on tapping phones in cases of corruption. It is very much permissible provided there is permission from the Home Secretary of the Union Government.
With AP, Chief Minister Chandrababu Naidu hurling allegations that the phones were tapped illegally it would now be the job of the Home Ministry of India to look into these allegations.
Phone tapping in corruption cases permissible:
Phone tapping is an important part of any investigation. However the norm is that it should interfere with the privacy of a person. The Central Bureau of Investigation has in many cases resorted to tapping phones in a bid to get information.
A CBI officer informed OneIndia that phone tapping is not illegal if the procedure is followed. There are procedures that one needs to follow and once there is an approval from the Union Home Secretary, a phone can be tapped for the purpose of investigation. The officer also adds that there is no bar on tapping phones in corruption cases. There have been instances where the courts have admitted the evidence that has been obtained by tapping phones, the officer also added.
Corruption is a threat to the economic structure of the country and hence it is important that all permissible methods be adopted in such cases.
In the AP vs Telangana CM case where allegations of illegal phone tapping are being made, it would now have to be seen if the permission of the Home Ministry had been sought or not. If the AP CM manages to prove that no permission was sought then there could be trouble ahead for the Home Secretary of the Telangana state.
However if Telangana did have permission from the Union Home Ministry then they could use this evidence against Naidu in court. The Telangana government could however prove that there was an urgency involved. However it would need to show a letter written to the service provider stating that permission from the Union Home Ministry would be sought in 15 days time.
The phone tapping rules in India:
The judgment of the Supreme Court of India in the PUCL case of 1997 says that a telephonic conversation in private without interference would come under the purview of right to privacy as mandated in the Constitution. The court however went on to lay down guidelines in cases of phone tapping:
-If a telephone needs to be tapped, then the home secretary of the Union government or the respective state government can issue an order to this effect.
-Strong reasons have to be specified in order to issue such a directive
-Such an order shall be in force only for two months unless there is another order, which will give the home secretary the right to extend it by another six months only.
- An order of the Home Secretary shall be subject to review by the Cabinet, law and telecommunication secretary who will need to review the same in 2 months time of the date the order has been passed.
-Records relating to phone tapping should be used and destroyed within two months.