Problematic interception clauses in Jan Lokpal Bill

A controversial clause of the Jan Lokpal Bill pertains to the grant of powers to the ‘appropriate Bench of the Lokpal’ to approve the interception and monitoring of messages or data - a move that raises fears of increased surveillance as well as further undermine the right to privacy.

 

For more than a year now, free speech activists have been waging a determined struggle against attempts by the State to authorise the monitoring, interception and blocking of all forms of electronic communication for the flimsiest of reasons. The Free Speech Hub has written about the amended Information Technology Act 2000, and the rules therein, which allow for this interception of any communication deemed to have been harassing, disparaging, obscene, or threatens the unity, integrity, defence of the India and its friendly relations with foreign states – amongst a host of others.

 

Other organisations too have voiced their apprehensions against the powers of the State to get intermediaries to take down any content against which complaints have been received within 36 hours. The Union government was also forced to issue a press release that vainly attempted to ally fears on these excessive attempts to monitor communication by citizens.

 

A number of phone tapping controversies have broken out in the last few years, including the Radia tapes disclosures last year. The phones of a number of people have been routinely tapped, including  a string of politicians from Amar Singh to Union Agriculture minister Sharad Pawar, Congress (I) general secrtetary Digvijay Singh, CPI (M) general seretary Prakash Karat and even Hindi film actor Salman Khan, whose phone conversations with alleged underworld elenents were tapped a few years ago.

 

Now comes the Jan Lokpal Bill which grants this controversial power to an authority that will investigate complaints of corruption. Here’s how Clause 12 of Section 29 in Chapter XVII (APPLICABILITY AND MODIFICATIONS OF THE PROVISIONS OF CERTAIN OTHER ACTS) of the Jan Lokpal Bill on the India Against Corruption (IAC) website reads:

 

 

What was the logic of allowing this clause into a bill that has already divided opinion about its draconian features and its attempt to create a super-authority to fight corruption? Would it be an invasion of the right to privacy and, thereby, of the fundamental right to freedom of speech and expression? 

 

Senior Supreme Court lawyer and key member of the drafting committee for IAC, Prashant Bhushan, did not think so. “The right to privacy is a very weak right and must give way to the right to investigate, punish and prosecute. For effective criminal investigation, it is necessary to gather all forms of evidence and phone tapping or interception of communication on the internet is important,” he said in a telephonic interview with this writer.

 

The Lokpal, as envisaged by the IAC draft bill, will be a new investigating authority as the power of the Central Bureau of Investigation (CBI) would be transferred to it, Mr Bhushan said, adding that in any case, the CBI takes its authority from the Home Secretary and the latter can often misuse that power.

 

The Jan Lokpal Bill has a three-member Bench which will be far, far safer and will authorise phone interception. No officer can do so, he explained, asserting that there would be no conflict between telephone tapping and freedom of speech. “Our Bench will be a more independent, multi-member body which will be much more carefully selected. The Lokpal is actually higher than the Supreme Court. The judges of the Supreme Court are selected in an ad hoc manner. But we will have full transparency. It is the safest authority and if any authority should be give the power to tap telephones, it should be this one, “ he said.

 

Disagreeing completely with this view, National Advisory Council member Aruna Roy said, “We rejected it absolutely in our formulation of the Lokpal Bill. Ms Roy heads the Mazdoor Kisan Sangharsh Samiti which was part of the National Campaign for Peoples' Right to Information (NCPRI) was on a working committee to draft the bill, along with Prashant Bhushan and Arvind Kejriwal.

 

“Since our consultations in April, we registered a vociferous position against this clause. We don’ agree even with the violation of privacy in the “aadhar’ UID scheme and this kind of surveillance,” she categorically stated.

 

The co-convener of the NCPRI, Nikhil Dey, explained further: “From the very first day, we opposed this clause. We felt that all these modes of giving excessive powers are a problem in the Lokpal/Jan Lokpal bills. There are two issues here: the kinds of powers and the nature of the organisation that wields this power.”

 

“And look at what happened to Prashant,” he pointed out, referring to the controversy over the tapes with Amar Singh that the senior lawyer was embroiled in. Prashant Bhushan had access to the best labs in the world, there is great appreciation of his work and recognition of his credibility but technology can be used as well as misused, Dey felt.

 

The use of telephone taps, interception of email and other such techniques would be a nightmare for people who work at the grassroots, Dey said, adding that it was unfortunate that Bhushan and Kejriwal and others did not see this point of view.

 

Dey also said that there were many other ways to investigate charges of corruption, instead of investigating agencies using these kinds of extra-constitutional measures. “Tomorrow, many of these powers can be misused, because finally, it will rest on the people selected for these Lokpals. We have seen it with the Information Commissioners under the Right to Information Act, where we had no control over who would be appointed,” he said.

 

However, this wasn’t the only disturbing clause for free speech, Dey pointed out, adding that the IAC version of the Lokpal also had the power of contempt and the powers to dismiss government servants. Besides the powers of surveillance, other such powers vested in one authority have a cumulative effect.

 

“With this, you have a complete circle of Investigator, Prosecutor and Judge,” he said, adding that ultimately, what was needed in the fight against corruption was an assertion of accountability to tackle not just corruption but non-performance of the public servant and the failure to deliver.

 

Clearly, what is urgently needed is much more informed debate on the long-term implications of such problematic clauses and less of the sound and fury of emotionally-charged televised campaigns that obscure these crucial details.