International Law

Section 5 of the ITA

By Saptak Sanyal

Section 5 of the Indian Telegraph act can be considered as an effective tool of the state to keep an eye over its citizens. It is effective compared to other surveillance used by the state as it allows the Government to intercept communications and to regulate transmission. I recently came across this bit of news about banning the SMS service for post-paid subscribers and restricting the facility for pre-paid users in Jammu and Kashmir. The order was later withdrawn following a strong protest by the state which charged the telecom and the home ministries of poor understanding of the matter (click here ). The Government or state derives such kind of power from Sec 5 (2) which reads- On the occurrence of any public emergency, or in the interest of public safety, the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order. Apart from intercepting of messages and phone calls the Government can also check transmission of any messages by virtue of this section in case of any threat to (i) The sovereignty and integrity of India. (ii) The security of the State. (iii) Friendly relations with foreign States. (iv) Public order. (v) For preventing incitement to the commission of an offence. Though indeed was a case of public emergency and security related issue was at stake as terrorism in J & K is India?s prime concern. But in the past there has been extensive use of this power of interception of phone lines due to political reasons and gains in the garb of national security. Therefore the Apex court in order to create accountability in the whole procedure laid few guidelines in the case of Hukam Chand Shyam Lal vs Union Of India And Ors 1976 SCR (2)1060 & Peoples Union for Civil Liberties (PUCL) vs The Union of India & Another, 18 December 1996, on Writ Petition (C) No. 256 of 1991. So there is also legal accountability in the procedure as the provision here creates conflict between individual?s right to privacy and national security. Next time if you are in suspicion that you phone is being tapped by the authorities please refer to your attorney and the cases cited above.

Full post as published by India Law & Tech on April 20, 2010 (boomark / email).