The question of whether the phone of a person has been placed under surveillance by any agency did not relate to the functions of the Telecom Regulatory Authority of India, the Delhi High Court has held.
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ON Friday, a division Bench of the Delhi High Court held that phone interception Orders passed by the appropriate government are exempted from disclosure under the Right to Information (RTI) Act, 2005.
Justices Amit Mahajan and Vibhu Bakhru passed an Order to this effect while quashing a single-judge Order which had affirmed the Order passed by the Central Information Commission (CIC).
RTI applicant Kabir Shankar Bose filed an RTI application with the Telecom Regulatory Authority of India (TRAI) seeking information on three counts:
- Whether his Vodafone no. had been placed under surveillance or tracking or tapping by any agency.
- Under whose direction and by which agency has his phone has been placed under surveillance or tracking or tapping?
- All the dates on which his phone was placed under surveillance or tracking or tapping.
The Central Public Information Officer (CPIO), TRAI, declined to provide the information, stating that the information sought was not available with the TRAI.
The CPIO also informed the RTI applicant that the RTI Act did not require him to collect the information from other entities, and since the information was not held by TRAI, it was not in a position to provide the same.
The first appellate authority upheld the decision of the CPIO.
On the second appeal filed by the RTI applicant, the CIC directed the TRAI to collect the information from the concerned telecom service provider and furnish the same to the RTI applicant.
The TRAI challenged the CIC Order before a single judge. The single judge held that under Section 12 of the Telecom Regulatory Authority of India Act, 1997, it had the power to call for any information, conduct investigations, etc., whenever the authority considered it expedient to do so.
It was, therefore, held by the single judge that the TRAI had the power to call for information from Vodafone in terms of the provisions of the TRAI Act.
The TRAI took the matter before a division Bench.
The division Bench took a different view of the matter. It opined that information as to whether the RTI applicant’s phone had been placed under surveillance or tracking or tapping by any agency and if the same had been done, then under whose directions and by which agency, did not relate to the functions of the TRAI as enumerated in Section 11 of the TRAI Act.
“Any action for interception or surveillance is undertaken in terms of Section 5(2) of the Indian Telegraph Act, 1885 and Rule 419(A) of the Indian Telegraph Rules, 1951.
“Section 5(2) of the Indian Telegraph Act, 1885 empowers the concerned government to direct such action in case the conditions, as specified, are satisfied,” the division Bench observed.
The division Bench ruled that an act of surveillance or tracking or tapping did not fall under the affairs of telecom service providers, but rather, was carried out under the directions of the concerned government.
The Bench also took note of Section 11(3) of the TRAI Act which specifically provides that while discharging its functions, the authority shall not act against the interest of the sovereignty and integrity of India, the security of the State, friendly relations with the foreign States, public order, decency or morality.
“To hold that asking for information in relation to interception or tracking or tapping of a phone would be within the power of the TRAI under Section 12 of the TRAI Act would not be in conformity with the functions specified in Section 11 of the TRAI Act,” the Bench ruled.
It added that any contrary view would give the TRAI unbridled power to call for information and interfere with the functions of telecom service providers, and also would not be in consonance with the objects sought to be achieved by the TRAI Act.
The Bench underscored that the TRAI was established to regulate telecom services to protect the interest of service providers and consumers in the telecom sector and to promote and ensure orderly growth of the sector.
In addition to this, the Bench accepted the argument of senior advocate Aman Lekhi who appeared for the TRAI that any information in relation to interception or tapping or tracking of a phone may attract the exemption under Section 8 of the RTI Act, in particular sub-clause (a) and (h) of the Section 8.
The Bench thus held that interception Orders by their very nature may have been passed in the process of investigation.
