The Division Bench of the Delhi High Court has held that any act of surveillance is not within the purview of telecom service providers (Vodafone in this case); instead, they are conducted under the directions of the concerned government, when an authorized officer is satisfied that it is 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”, and is exempt under Right to Information Act, 2005.
The decision was passed in Telecom Regulatory Authority of India (TRAI) v. Kabir Shankar Bose & Ors. on December 22, 2023, wherein the Division Bench had set aside the Ld. Single Judge judgment in line with Central Information Commission’s order that TRAI has power to access information from a private body under any other law for the time being in force.
The findings of the Court were:
- Section 11 of the TRAI Act, 1997 defines functions that are to be discharged by TRAI and one of the functions assigned to the Authority under sub-section 1 (b)(i) is to ensure compliance with terms and conditions of the licence by telecom providers and the same cannot be read so broadly to include each and every action taken by the telecom service providers.
- Section 11(3) of the TRAI Act specifically states that TRAI while discharging its functions outlined in sub-sections (1) and (2), should 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.
- 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.
- Directing TRAI to call for information and interfering with the functions of telecom service providers would not be in consonance with the objectives enumerated under the TRAI Act.
- Information in relation to interception, tapping or tracking of a phone is exempt under Section 8(a) of the Right to Information Act, 2005, as such, disclosure of information would impede the process of investigation and may be construed to prejudicially affect the security, integrity and strategic interests of the country.