Information about phone tapping, interception exempt from disclosure under RTI Act: Delhi High Court

The Delhi High Court recently held that information in relation to the interception, tapping or tracking of a phone is exempt from disclosure under Section 8(a) of the Right to Information Act, 2005 (RTI Act) [Telecom Regulatory Authority of India v Kabir Shankar Bose & Ors].

Section 8(a) of the RTI Act exempts any information from the ambit of the RTI Act, the disclosure of which would prejudicially affect the security, integrity and strategic interests of the country.

A Division Bench of Justices Vibhu Bakhru and Amit Mahajan said that any order 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 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, the Court noted.

“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 observed.

The Court was dealing with a plea filed by the Telecom Regulatory Authority of India (TRAI) against the single-judge order refusing to interfere with the Central Information Commission (CIC) directions to TRAI.

CIC had directed TRAI to collect information from the concerned telecom service provider and inform the RTI applicant, one Kabir Shankar Bose whether his phone was under surveillance, tracking or tapping and under whose directions it was done. 

After considering the case, the Court noted that Section 11(3) of the TRAI Act specifically provides that while discharging its functions under sub-sections (1) and (2), the TRAI 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.

The Court was of the view that while the TRAI Act mentions one of its functions to ensure compliance with the terms and conditions of the licence by telecom provider, the same cannot be read so broadly to include each and every action taken by the telecom service providers.

The same has to be given a meaning in conformity with the object sought to be achieved by the TRAI Act, the Court stressed.

“To hold that asking for information in relation to interception or tracking or tapping of a phone would be within the power of 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 Court emphasised that any contrary view would give the TRAI unbridled power to call for information and interfere with the functions of telecom service providers and would not be in consonance with the objects sought to be achieved by the TRAI Act.

“As referred to above, the authority was established for the purpose of regulating 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.”

Therefore, the Division Bench allowed the appeal filed by TRAI and set aside the single-judge’s order.

Senior Advocate Aman Lekhi along with advocates Ankur Sood, Aniket and Romila Mandal appeared for the TRAI.

RTI applicant Kabir Shankar Bose was represented through advocates Aditya Singh Deshwal and Abhijeet Upadhyay.

[Read Judgment]