Phone Surveillance Details Exempt From RTI Disclosure: Delhi High Court
The Delhi High Court has recently held that details concerning the interception, tapping, or tracking of a phone fall within the exemption category for disclosure under Section 8 of the Right to Information Act, 2005.
The court noted that such disclosure of information may be construed to prejudicially affect the sovereignty and integrity of India.
The Division Bench of Justice Vibhu Bakhru and Justice Amit Mahajan was dealing with an appeal, under Clause 10 of the Letters Patent, filed by the Telecom Regulatory Authority of India (TRAI) being aggrieved by the judgment passed by a Single Judge Bench upholding a directive from the Central Information Commission (CIC) instructing TRAI to gather information requested by an individual regarding the surveillance and tracking of his phone under the provisions of the RTI Act.
Senior Advocate Aman Lekhi and Advocate Ankur Sood appeared for the Appellant and Advocates Aditya Singh Deshwal and Abhijeet Upadhyay appeared for the Respondent.
Background: The Single Judge had relied upon the judgment passed by the High Court in the case of Poorna Prajna Public School v. Central Information Commission & Ors.: 2009:DHC:4086, whereby it was held that if a public authority has a right and is entitled to access information from a private body, under any other law, it is “information” as defined in Section 2(f) of the RTI Act. It was further held that the term “held by the or under the control of the public authority”, used in Section 2(j) of the RTI Act, includes information, which the public authority is entitled to access under any other law from the private body. It was held that a private body need not be a public authority, and that it was the obligation of the public authority to get the information from the private body and furnish the same to the applicant.
TRAI before the Division Bench submitted that that dominion over the information by a public authority, is a pre-condition for any application under the RTI Act. TRAI contended that the reliance placed on Section 12 of the TRAI Act, by the Single Judge, is misplaced. It was also submitted that in terms of Sections 12 and 13 of the TRAI Act, the authority can only call for information that relates to its functions under Section 11 of the TRAI Act.
TRIA also argued that the information in relation to surveillance is outside the jurisdiction of the TRAI and the functions of the TRAI under the TRAI Act are restricted to the functions cited in Section 11 of the TRAI Act, and the information in regard to the surveillance of phones has categorically been kept out of the purview of the same.
Considering the submissions, the Court referred to the Indian Telegraph Act, and observed that thus, it is clear that any such act of surveillance or tracking or tapping does not fall under the affairs of telecom service providers, but rather, is carried out under the directions of the concerned Government, in case the authorized officer is satisfied that it is necessary or expedient to do so in the interest of sovereignty and integrity of India, the security of the State, friendly relations with the foreign states or public order, or for preventing incitement to the commission of an offence.
The Court in its Judgement observed, "Any order passed by the concerned Government in relation to interception or tapping or tracking of a phone is passed when the authorized officer is satisfied that it is necessary or expedient so to do in the interest of sovereignty and integrity of India, the security of the State, friendly relations with the foreign states or public order or for preventing incitement to the commission of an offence. Such order, therefore, by its very nature may have been passed in the process of investigation. In a given case, the disclosure of any such information, therefore, may impede the process of investigation, and may be construed to prejudicially affect the sovereignty and integrity of India, the security, the strategic, scientific, and economic interest of the State, relations with the foreign states or lead to incitement of an offence, and would therefore be exempted from disclosure under terms of Section 8 of the RTI Act."
It was further held that "Any information in relation to interception or tapping or tracking of a phone as ordered by the concerned Government under Section 5(2) of the Indian Telegraph Act, 1885, may attract the exemption under Section 8 of the RTI Act."
The Court accordingly allowed the present appeal and set aside the impugned judgment, passed by the Single Judge.
Cause Title: Telecom Regulatory Authority Of India v. Kabir Shankar Bose & Ors. [LPA 721/2018 & CM APPL. 53526/2018]
