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,
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:
of ITA-2000 ::
Directions of Controller to a subscriber to extend facilities to
(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
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
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.
the prescribed safeguard, the Central Government or a State Government or
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
(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.
this Chapter shall affect the provision of section 69 of the Information
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"
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
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
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
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
The emergent situations refer to situations such as
(i) immediate danger of death or serious physical injury to any person;
(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
March 31, 2002
Copy of POTA
can be sent here