Central Information Commission
Neelesh Gajanan Marathe vs Department Of Telecommunications on 2 August, 2021
Author: Vanaja N Sarna
Bench: Vanaja N Sarna
क य सच ु ना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगनाथ माग
Baba Gangnath Marg
मु नरका, नई द ल - 110067
Munirka, New Delhi-110067
File no.: CIC/DOTEL/C/2019/126142- Final
In the matter of:
Neelesh Gajanan Marathe
... Complainant
VS
1. Central Public Information Officer
Department of Telecommunications
Ministry of Communication & IT
Sanchar Bhawan, 20 Ashoka Road, New Delhi - 110001
2. Central Public Information Officer
Telecom Regulatory Authority of India
Mahanagar Doorsanchar Bhawan
JLN Marg, Old Minto Road, New Delhi - 110 002
3. Central Public Information Officer
RTI Cell, Ministry of Home Affairs
North Block, New Delhi - 110 001
...Respondents
RTI application filed on : 21/04/2019
CPIO replied on : Not on Record
First appeal filed on : 06/05/2019
First Appellate Authority order : Not on Record
Complaint dated : 28/05/2019
Date of Hearing : 28/04/2021
Date of Decision : 28/04/2021, 02/08/2021
The following were present:
Complainant: Not present
Respondent: Submissions received
1
Information Sought:
The complainant has sought information whether his following mobile numbers have been under an "Unauthorized Interception", in terms of any applicable Acts for the same:
(i) 9819341742 - Vodafone - from 01/2014 to 21/04/2019
(ii) 8850118151 - Jio - from 03/2017 to 21/03/2019.
Grounds for filing Complaint No information has been provided by the CPIO.
Submissions made by Complainant and Respondent during Hearing:
The CPIO vide his letter dated 26.04.2021 informed that he was COVID-19 positive and has been discharged from the hospital last week. Since the doctor has advised complete rest he will be unable to attend the hearing. In view of this he had sought adjournment of the case and also prayed that his case may be re-scheduled for hearing on some other suitable date.
Observations:
In view of the above submissions, the registry attached with this bench is directed to re-schedule the case in due course and an intimation be sent to both the parties accordingly.
The matter is accordingly adjourned.
Sd/-
Vanaja N. Sarna (वनजा एन. सरना) Information Commissioner (सच ू ना आय! ु त) Date of Hearing : 02/08/2021 The following were present:
Complainant: Present over phone Respondent: Ritu Pandey, Director (Security-II) and CPIO TRAI; Shailendra Vikram Singh, Deputy Secretary and CPIO Ministry of Home present over phone 2 Submissions made by Complainant and Respondent during Hearing:
The complainant contested the reply and submitted that the interception is illegal. He further relied on the decision dated 26.09.2018 of the Hon'ble Supreme Court in the case of Justice K.S.Puttaswamy(Retd) vs Union Of India, wherein it was held that the claim of protection of privacy can be against both state and non- state actors as the danger in the age of technological development can originate not only from the state but from the non-state entities as well.
He further relied on the decision of the previous bench of the Commission in the matter of Kabir Shankar Bose. However, on a query, he could not substantiate how he thinks that his phone was intercepted. It appeared that only on the basis of his apprehension he was claiming that his phone was intercepted and there is no material proof to substantiate his claim.
Ritu Pandey, Director (Security-II) and CPIO, TRAI submitted that TRAI does not have any access to such information. The same has to come from Telecom Service Providers (hereinafter mentioned as TSPs).
On a further query, whether the TSPs can be contacted and information can be collected and given if available, Shailendra Vikram Singh, Deputy Secretary and CPIO Ministry of Home submitted that lawful interception is possible u/s 5(2) of the Indian Telegraph Act. However, in case it is disclosed whether phone was intercepted or not, this shall defeat the very purpose of the Act. He also argued that the appellant's question is hypothetical and the same cannot be asked from TSPs and only such information which is held in material form can be given.
He reiterated his written submissions dated 26.04.2021 wherein he submitted that the lawful interception of communication messages is carried out under Section 5(2) of the Indian Telegraph Act, 1951 read with the Rule 419A of Indian Telegraph Rules 1951 in the interest of public safety, sovereignty and integrity of India, security of the State etc. However, disclosure of information as to whether a particular telephone number is under interception or not, is not possible as it would defeat the inherent objectives of Section 5(2) of the Indian Telegraph Act.3
The respondent further submitted that all the records/ correspondence related to interception have been destroyed as per the provisions contained in sub rule-18 of Rule 419(A) of the Indian Telegraph Rules, 1951. He also relied upon the decision of the Commission in case no. CIC/MHOME/A/2018/146241 dated 06.08.2019 in which the stand of the CPIO was upheld by the previous bench.
He further submitted that in another RTI application, the appellant/complainant had sought similar information from M/s. Mahanagar Telephone Nigam Ltd. (MTNL) as well in which M/s. MTNL stated that lawful interception/phone tapping is done by law enforcement agencies, duly authorized by the Central/State Governments under the classified legal regime, and that documents/ information relating to lawful interception are classified as 'Top Secret' and cannot be disclosed as they are exempted from disclosure under sections 8(1)(a), 8(1)(g) and 8(1)(h) of the Right to Information Act, 2005 (hereinafter referred to as the "RTI Act").
On not being satisfied, the appellant/complainant had preferred an appeal before the Commission, which was disposed of with the observation that "The action/steps taken by the respondent dealing with the RTI application is satisfactory" and that "No further intervention of the Commission is required in the matter". The order dated 27.09.2018 passed in Second Appeal No. CIC/MTNLT/A/2018/111183 was also attached.
He further submitted that information regarding interception can be provided only by the authority empowered under section 5(2) of the Telegraph Act to direct the interception of messages. The appellant/complainant is aware of the same, and has approached and received appropriate response from Ministry of Home. He has exhausted all the remedies available to him under the RTI Act by filing a second appeal before this Commission, which has been disposed of. Despite this, he has now approached TRAI for information, and has thus, indulged in forum shopping.
As regards the Reliance placed by the appellant/complainant on the order passed by the Commission in the case of Shri Kabir Shankar Bose, he submitted that TRAI has challenged the same before the Hon'ble High Court of Delhi, vide LPA no. 721 of 2018 titled as "TRAI v. Kabir Shankar Bose", and also sought stay. The Hon'ble High Court of Delhi, vide order dated 19.12.2018, has kept the application of stay pending, in view of the fact that Sh. Bose's counsel has given an undertaking that he will not insist upon the implementation of the 4 order dated 12.09.2018 passed by the Commission. Accordingly, the said order dated 12.09.2018 has not been implemented and the matter is still sub-judice. Therefore, the reliance placed by the appellant/complainant on the said order is misplaced. A copy of the said order dated 19.12.2018, passed by the High Court of Delhi, was attached.
Observations:
The Commission observed that the CPIO, Ministry of Home had provided a suitable explanation. Further, the complainant could not rebut the submissions of the CPIO nor could he substantiate his complaint. Therefore, the reply is treated as just and proper.
Decision:
In view of the submissions of the CPIO, the Commission finds no scope for any intervention in the matter and accordingly upholds the submissions of the CPIO. No further action lies.
The complaint is disposed of accordingly.
Vanaja N. Sarna (वनजा एन. सरना) Information Commissioner (सच ू ना आय! ु त) Authenticated true copy (अ भ मा णत स या पत त) A.K. Assija (ऐ.के. असीजा) Dy. Registrar (उप-पंजीयक) 011-26182594 / दनांक/ Date 5