It must be taken note of that the Delhi High Court in a most learned, laudable, landmark, logical and latest judgment titled Telecom Regulatory Authority Of India vs Kabir Shankar Bose & Ors in LPA 721/2018 & CM APPL. 53526/2018 and cited in Neutral Citation No.: 2023:DHC:9286-DB that was pronounced as recently as on December 22, 2023 has minced just no words to hold unequivocally that details concerning the interception, tapping or tracking of a phone fall within the exemption category for disclosure under Section 8 of the Right to Information Act, 2005. We see that the Division Bench of Hon’ble Mr Justice Vibhu Bakhru and Hon’ble Mr Justice Amit Mahajan was dealing with an appeal under Clause 10 of the Letters Patent that had been filed by the Telecom Regulatory Authority of India (TRAI) being aggrieved by the judgment that had been passed by a Single Judge Bench upholding a directive from the Central Information Commission (CIC) instructing TRAI to gather information requested by an individual pertaining to the surveillance and tracking of his phone under the provisions of the RTI Act. It must be noted that the Court took note that such disclosure of information may be construed to prejudicially affect the sovereignty and integrity of India. The Court accordingly allowed the present appeal and set aside the impugned judgment passed by the Bench of Single Judge which had affirmed the order passed by the CIC.
At the very outset, this remarkable, robust, rational and recent judgment authored by Hon’ble Mr Amit Mahajan for a Division Bench of the Delhi High Court comprising of Hon’ble Mr Justice Vibhu Bakhru and himself sets the ball in motion by first and foremost putting forth in para 1 that, “The present appeal, under Clause 10 of the Letters Patent, is filed by the Telecom Regulatory Authority of India (hereafter ‘TRAI’), being aggrieved by the judgment and order dated 20.11.2018, passed by the learned Single Judge of this Court in W.P.(C) 12388 of 2018 titled as Telecom Regulatory Authority of India v. Kabir Shankar Bose (hereafter ‘impugned judgment’).”
As we see, the Division Bench then states in para 2 that, “The aforementioned writ petition was filed by the TRAI challenging the order dated 12.09.2018, passed by the Central Information Commission (CIC). The learned CIC, by its order dated 12.09.2018, had directed TRAI to collect the information sought by Respondent no.1 under the Right to Information Act, 2005 (RTI Act).”
As it turned out, the Division Bench then stipulates in para 3 that, “Respondent no.1 filed an application under the RTI Act seeking the following information:
“1. Whether my Vodafone no. 9999822445 has been placed under surveillance or tracking or tapping by any agency.
- Under whose direction and by which agency my phone has been placed under surveillance or tracking or tapping.
- All the dates on which my phone no. 9999822445 was placed under surveillance or tracking or tapping.””
Truth be told, the Division Bench then specifies further in para 3 that, “The Central Public Information Officer (CPIO), TRAI informed Respondent no.1 that the information sought was not available with the TRAI. It was further stated that the RTI Act does not require the Public Information Officer (PIO) to collect the information from other entities, and since the information was not held by the TRAI, it was not in a position to provide the same.”
Further, the Division Bench states in para 4 that, “Respondent no.1 filed an appeal against the decision of the CPIO before the Appellate Authority. The Appellate Authority upheld the view taken by the CPIO by its order dated 21.07.2017.”
Furthermore, the Division Bench specifies in para 5 that, “The second appeal filed by Respondent no.1 before the CIC was allowed by an order dated 12.09.2018, whereby the TRAI was directed to collect the information from the concerned telecom service provider and furnish the same to Respondent no.1.”
Still more, the Division Bench then discloses in para 6 that, “The writ petition filed by the TRAI, impugning the order dated 12.09.2018 passed by the CIC, was dismissed by the learned Single Judge by the impugned judgment, which led to filing of the present appeal under the Letters Patent.”
Briefly stated, the Division Bench observes in para 39 that, “Respondent no.1, in the present case, had asked for information as to whether his phone had been placed under surveillance or tracking or tapping by any agency and if the same has been done, then under whose directions and by which agency. In our opinion, the information sought does not relate to the functions of the TRAI as enumerated in Section 11 of the TRAI Act. Any action for interception/surveillance is undertaken in terms of Section 5(2) of the Indian Telegraph Act, 1885 and Rule 419(A) of the Indian Telegraph Rules, 1951. Section 5(2) of the Indian Telegraph Act, 1885 empowers the concerned Government to direct such action in case the conditions, as specified, are satisfied.”
Quite significantly, the Division Bench points out in para 40 that, “Thus, it is clear that any such act of surveillance or tracking or tapping does not fall under the affairs of telecom service providers, but rather, is carried out under the directions of the concerned Government, in case the authorized officer is satisfied that it is necessary or expedient to do so 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. It is also relevant here to refer to Section 11(3) of the TRAI Act which specifically provides that while discharging its functions under Sub-Sections (1) and (2), the authority 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.”
Be it noted, the Bench notes in para 43 that, “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. Any contrary view would give the authority unbridled power to call for information and interfere with the functions of telecom service providers, and also 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.”
It is worth noting that the Division Bench notes in para 44 that, “Another aspect as rightly pointed out by Mr. Lekhi, learned senior counsel, which cannot be lost sight of is that any information in relation to interception or tapping or tracking of a phone as ordered by the concerned Government under Section 5(2) of the Indian Telegraph Act, 1885, may attract the exemption under Section 8 of the RTI Act. Section 8(1)(a) and Section 8(1)(h) of the RTI Act read as under:
“Section 8. Exemption from disclosure of information.
(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,–
(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;
(h) information which would impede the process of investigation or apprehension or prosecution of offenders;.”
Most significantly and so also most forthrightly, the Division Bench mandates in para 45 postulating that, “Any order passed 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 or expedient so 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. 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.”
As a corollary, the Division Bench then expounds in para 46 that, “In view of the above, the present appeal is allowed and the impugned judgment, passed by the learned Single Judge, in W.P.(C) 12388 of 2018 is set aside.”
Finally, the Division Bench concludes by holding in para 47 that, “All pending applications stand disposed of.”
In sum, we thus see that the Division Bench of the Delhi High Court has made it indubitably clear that phone surveillance details are exempt from public disclosure under Section 8 of the Right to Information Act, 2005. So the judgment passed by the learned Single Judge was set aside as mentioned hereinabove. Very rightly so!
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