Interception of Communication under ITA-2000, CCB-2002 (Proposed) and POTA-2002



The acrimonious debate on the Prevention of Terrorism Act in the joint sitting of the Parliament on 26th of March and the opposition to the Bill from a section of politicians at a time the whole world is seized with the growing menace of terrorism, has caused concern amongst the apolitical observers about the future of law enforcement in India.

If the arguments of the opposition are to be believed,  Indian Police  are not fit enough to carry the special powers envisaged in the Act to prevent terrorism. On the other hand, if the current laws were in deed sufficient to tackle terrorism, then Indian Police must be considered to have failed miserably to use them effectivelyto curb terrorism. Either way, the professional competence of the Indian police has been questioned by the 296 legislators who voted against the Bill as against the 425 who voted in favor.

It is unfortunate that the Police force cannot defend themselves to say that it is the politicians who are weakening them and who are now playing politics with a legislation which may help contain the kind of terrorism which has taken over 60,000 lives in India in the last decade and has seen war like bombings in Mumbai and Coimbatore.

Hopefully, the Police have become immune to such gamesmanship and will continue to carry on their duty despite the debilitating influence of politicians.

In discussing the provisions of POTA, one of the clauses that came for objection from the opposition was the clause on "Interception of Communication". The learned attorney and Congress member Mr Kapil Sibal was seen in a TV programme quoting the provisions  of Section 69 of the ITA-2000 as being sufficient to meet the requirements of interception envisaged in POTA and implying the redundancy or potential of misuse of the provision under POTA. This argument has made it necessary to take a fresh look at the relevant section in ITA-2000 as well as the similar provision contained in Communication Convergence Bill which is expected to come up for passage some time in July 2002.

According to ITA-2000, the "Controller of Certifying Authorities" has been given a power to direct interception of any electronic communication under certain conditions.

The section states:

Section 69 of ITA-2000 ::

Directions of Controller to a subscriber to extend facilities to decrypt information

(1) If the Controller is satisfied that it is necessary or expedient so to do in the interest of the sovereignty or integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence, for reasons to be recorded in writing, by order, direct any agency of the Government to intercept any information transmitted through any computer resource.

(2) The subscriber or any person in charge of the computer resource shall, when called upon by any agency which has been  directed under sub-section (1), extend all facilities and technical assistance to decrypt the information.

(3) The subscriber or any person who fails to assist the agency referred to in sub-section (2) shall be punished with an imprisonment for a term which may extend to seven years.

This section stipulates the conditions under which the power of interception can be exercised and mandates that the Controller has to record the reasons and give a written order to an agency ..such as the Police to intercept any information transmitted through a Computer resource. This section does not provide any special powers to the Police but only stipulates that they need the written order of the Controller before any interception can be made. Since interception of electronic communication is to be done at the ISP level and using "Decryption" of messages in some cases which may need the support of the Certifying Authorities (CA), this provision is meant to protect the ISP s and CA s from direct interference by the Police.

From the point of view of the Police this section actually restricts their powers by making it subordinate to the wishes of the Controller. Hence it is incorrect to state that the Police had the "Power of Interception" in section 69 of the ITA-2000 as Mr Kapil Sibal argues.

The ministry of telecom has also  prescribed outside the statute, a more draconian power for "Interception" through the Telecom guidelines for setting up of submarine landing stations which the opposition seems to have totally lost sight off. A detailed note on this guideline is available at (  ).

This guideline stipulates that the "Licensee" (i.e. the ISP) will have to make all technical provisions to enable interception and filtering of internet data passing through the ISP at his cost and also provide physical space for the monitoring authority within the ISP premises to carry on its work of interception and filtering. It also mandated that the ISP will not allow bulk encryption by ISP s and others would be restricted to encryptions of 40 bit key length in RSA algorithms.

 No politician has ever objected to these provisions either on the basis of its potential for misuse or because of its nature to curtail the security of communication.

This provision again does not provide any special power to the police but only empowers the administrative machinery in the Government to order interception through the Police if need be.

Politicians have also missed the implications and the futility of the attempts to redefine the standard system of Digital Signatures and creation of  a system of encryption where the "Private Key" for encryption is to be lodged with the "Controller" (See for details).

While all the learned politicians in the opposition have not reacted either to the above telecom guidelines or the Digital signature debate, they seem to have a special concern on the interception provisions in POTO.

Now coming to the proposed Communication Convergence Bill which is pending in the parliament for being passed into a law,  the relevant provisions on interception state as follows.

Section 66. of Communication Convergence Bill::

Interception of communication and safeguards.

(1)Subject to the prescribed safeguard, the Central Government or a State Government or any officer specially authorized in this behalf by the Central Government or a State Government, on the occurrence of any public emergency or in the interests of the security, sovereignty and integrity of India, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence, may direct:

(i) any agency of that Government to intercept any communication on any network facilities or services;

(ii) any service provider that any content brought for communication by or communicated or received by, him shall not be communicated or shall be intercepted or detained or shall be disclosed to that Government or its agency authorized in this behalf:

(2) The service provider shall, when called upon by any agency, which has been directed to carry out interception under sub-section (1), extend all facilities and technical assistance for interception of the content of communication.

(3) Any service provider who fails to assist the agency referred to in sub-section (2) shall be punished with imprisonment for a term, which may extend to seven years.

(4) Save as otherwise provided under this section, any person, who intercepts any communication or causes any communication to be intercepted or discloses to any person, any content shall be punishable with imprisonment which may extend to five years or with fine which may extend up to ten lakh rupees, and, for a second and subsequent offence, with imprisonment which may extend to five years and with fine which may extend up to fifty lakh rupees .

 Explanation: For the purposes of this section,"interception" means the aural or other acquisition of the content through the use of such devices or means as may be necessary for such acquisition.

Section 67:

Nothing in this Chapter shall affect the provision of section 69 of the Information Technology Act,2000.

This section again provides the procedural enabling power for the Central or State Government to order interception in emergent situations and applies to communication other than what is covered under Section 69 of the ITA-2000.

What is to be noted is the sub section 66 (4) which prescribes a punishment for any interception other than what is authorized as per the section. This can perhaps be used against a Police officer also in case he intercepts a communication without the order of the   appropriate official as envisaged by this act. In fact ITA-2000 provision appears incomplete compared to the provisions of the Communication Convergence Bill.

(Ed: Communication Convergence Bill is presently with a standing committee of the Parliament for review and is expected to be taken up for passage in July 2002. The chairman of the standing committee is an opposition  leader and if the considerations that led the discussions of the POTA are going to play their part once again, we may expect lot of changes in the Bill, The comments made here in should be seen in this perspective)

Having seen that neither the ITA-2000 nor the Communication Convergence Bill provides any power to the Police to "Intercept" communication, let us now see what the POTA has stated in this regard.

Chapter V of the POTA has been dedicated to the powers of interception. (Detailed copy of the POTA is available here.)

POTA has approached the issue of interception in a detailed manner unlike in the earlier cases. The act defines "Electronic Communication" and "Interception".

According to Section 36 (b) "Intercept" means  the aural or other acquisition of the contents by wire, electronic or oral communication through the use of any electronic, mechanical or other device.

Under Section 37, a "Competent Authority" is defined to exercise the powers of interception, who would be an officer not below the rank of Secretary to the Government in the case of State Government and not below the rank of Joint Secretary to the Government in the case of Central Government.

Section 38 stipulates that a police officer not below the rank of Superintendent of Police supervising the investigation of any terrorist act under this Act may submit an application in writing to the Competent Authority for an order authorizing or approving the interception of wire, electronic or oral communication by the investigating officer when he believes that such interception may provide, or has provided evidence of any offence involving a terrorist act.

The particulars required to be submitted for making such a request has also been stipulated elaborately under Section 38 (2) of the Act. The request has to be substantiated with additional information which the competent authority may call for. The permission when granted will also be for a limited time period not exceeding 60 days at a time.

It must be noted that the Competent authority may reject the application of the Police officer,. Further, the competent authority himself has to submit a copy of the order to a review committee within 7 days for approval.

The act also stipulates that "An interception  may be conducted in whole or in part by a public servant, acting under the supervision of the investigating officer authorized to conduct the interception".

Thus, the powers of interception envisaged by POTA in well regulated both at the time of interception and its monitoring.

Emergency powers of interception are however granted under Section 43 of the Act to an Additional Director General of Police or a police officer of equivalent rank. Such powers are to be exercised in designated emergent situations such as defined in the section and to be recorded in writing.

The emergent situations refer to situations such as 

(i) immediate danger of death or serious physical injury to any person; or

(ii) conspiratorial activities threatening the security or interest of the State; or

(iii) conspiratorial activities, characteristic of a terrorist act, that requires a wire, electronic or oral communication to be intercepted before an order from the Competent Authority authorising such interception can, with due diligence; be obtained, and there are grounds on which an order should be issued under this section to authorise such interception,

Such orders should be referred to the Competent authority within 48 hours and in case of rejection will cease to be effective and the officer may have to face the consequences of violating the provisions of the Act which may result in imprisonment of the Police officer for a period of upto one year and fine of upto Rs 50,000.

The Act also provides for protection of the information collected and for their admissibility as evidence .

POTA therefore provides a well thought out procedure for interception and management of information collected through such interception. It is not correct to say that it gives draconian powers to the Police since the checks and balances are present in the act itself.

What is to be remembered is that the provisions of POTA will override the provisions of ITA-2000 whenever it is invoked and therefore the procedures mentioned herein become relevant even for interception of Internet data.


March 31, 2002

Copy of POTA


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