Can the police conduct wiretapping and surveillance merely on the basis of a complaint from a “concerned mother”?
Kiran Bedi seems to think so. After Newslaundry and The News Minute reported on the months-long surveillance of Kiran Bedi’s daughter, the former IPS officer tried to defend the police action as “legit” and justified her decisions as those taken by a “concerned mother”.
Bedi has maintained that her involvement in the matter was purely as a complainant.
“I did not authorise anything. I was a complainant raising a concern. Authorisation of any surveillance measures is entirely the purview of the police department, following due legal procedures,” she wrote on X. “It is entirely lawful and legitimate for any citizen to approach the police when there is a reasonable apprehension of potential criminal activity. Preventing and detecting crime is the core function of responsible policing, and I have always upheld that principle.”
Her claim of being an ordinary complainant is not borne out by the emails the investigation’s reporters accessed. In early September 2003, Bedi sent a colleague from India Vision Foundation an email for Ujjwal Mishra, a Delhi police official who appears to have been actively involved in the surveillance op on Bedi’s daughter and daughter’s partner.
In the email, Bedi wrote, “My dear Ujjwal[,] This is to say other unprofessional sources are able to feed me with more info than…..you.” Kiran emphasised the importance of the matter, asking Ujjwal to consider it “as your own” and deal with it accordingly.
In another email that same month, marked to more than a dozen people, Bedi wrote about the role of Mukund Upadhye, a former deputy commissioner of the crime branch of the Delhi police. “We need to identify Mukund’s successor. For who is the cop who will maintain the pressure. After Mukund leaves for his duties in Arunachal.”
The key question remains. What are the circumstances that can allow for such surveillance? Can a “concerned mother” request for surveillance, given the backdrop, that Bedi’s daughter Saina Bedi was involved in an unscrupulous visa business, as per emails and audio recordings from the surveillance operation?
To understand this further, we spoke to some experts and looked at the rules governing police surveillance and interceptions in India.
The rules in place in 2003
At the time Bedi’s daughter was put under surveillance in 2003, official interception in India had been allowed by section 5(2) of the Telegraph Act under five specific grounds – public emergency or matters concerning national security, the integrity of India, its foreign relations, public order, or crime prevention.
However, the Telegraph Rules 1951 which operationalised the Act lacked clarity on the procedure. Until 2014, phone tapping in India was governed only by guidelines issued by the Supreme Court in 1996. These guidelines had come in the wake of allegations of widespread misuse of the law.
As per these guidelines, only home secretaries from either the Centre or state could issue orders for interception. In urgent cases, an officer not below the rank of joint secretary could be authorised to issue such orders. When issuing such an order, it must be considered whether the information could be obtained through other means.
Copies of all such orders needed to be sent to a review committee, comprising highest ranking officials such as cabinet secretary and chief secretary, within a week. The committee had to check for any violation of section 5(2), and if found, set aside the order and destroy the intercepted material.
An interception order needed to specify which communications were to be intercepted and who would receive the disclosed material. The order needed to specify the duration of the interception – it could remain effective for up to two months and be renewed for a maximum of six months. The guidelines clearly pointed out that proper records needed to be maintained about the officer or the authority to whom the intercepted messages were disclosed.
The NL-TNM investigation shows that Saina Bedi and Gopal Suri’s phones were wiretapped for at least four months, between August and November 2003. It is unclear whether an interception order authorised this surveillance, and if it was approved for this duration of time.
During the course of the investigation, Newslaundry and The News Minute had seen copies of emails where Bedi was updated on the findings from the intercepted calls. The guidelines did not specify whether a complainant could be given information from a surveillance operation at such length, or if a complainant could be given updates at all.
Before NL-TNM published the investigation, the reporters sent Bedi a detailed questionnaire on many aspects of the surveillance operation. She chose to ignore specific queries, including about who authorised the surveillance operation. “My reply to your mail. When I felt that my daughter was being innocently trapped and targeted (27 years ago ) I requested the police to save an innocent life. The police did its duty,” she wrote in an email response.
The current rules for interception
In India, the interception of telecommunication, including wiretapping, is now governed by section 20(2) of the Telecommunication Act 2023. It grants the central and state governments or the officers they authorise the power to intercept or block communications under specific circumstances. The grounds remain the same as the Telegraph Act.
The procedure is operationalised by the Telecommunications (Procedures and Safeguards for Lawful Interception of Messages) Rules, 2024.
While these rules have added more to existing procedures such as authorisation and the functioning of the review committee, there has been no significant change to the fundamental legal framework and safeguards that were already in place in 2003.
A former senior Delhi police officer said no interception could take place without final approval from the senior bureaucrats. “Procedure-wise, only authorised people can order surveillance so that misuse is avoided. In the case of a mobile phone, if it is outside the state, it’s the Union Home Secretary who can authorise such interception. If it’s within the state, it’s the state Home Secretary who gives the permission,” the official clarified.
The official said that interceptions could also be approved by officers equivalent to the rank of a Special Commissioner in the Delhi police, but these can only last for seven days and must be confirmed by the competent authority as well.
Prasanna S, a Supreme Court advocate familiar with the law on privacy and data protection, pointed out that while rules have been amended over time, the essential requirement for high-level clearance remains unchanged. “The fundamental requirement of high-level clearance is the same in all rules regarding interception. If this high-level clearance was not taken, any surveillance is outside the law,” he stated.
Sanjay Parikh, a Supreme Court lawyer who has been handling cases related to privacy and phone tapping, stressed that such an infringement of a fundamental right needs legal clearance and should be aimed at public order. “If she is tapping the phone of her daughter, it is blatantly illegal. It could not be for public order.”
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