The Division Bench of the Delhi High Court recently clarified that any act of surveillance, interception, or phone tapping does not fall within the responsibility of telecom service providers. Instead, such actions are undertaken only under the authority of the Government, when an authorised officer determines that it is necessary in the “interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, or for preventing incitement to the commission of an offence”. The Court further held that such information is exempt from disclosure under the Right to Information Act, 2005 (RTI Act).

This ruling was delivered in Telecom Regulatory Authority of India (TRAI) v. Kabir Shankar Bose & Ors. on December 22, 2023. The Division Bench set aside the earlier judgment of the Single Judge, aligning with the Central Information Commission’s view that TRAI cannot extend its power to demand surveillance-related data from private telecom operators beyond the functions expressly defined under the TRAI Act.

For businesses in the technology and telecom industry, this case underscores the importance of distinguishing between regulatory compliance and government-directed security measures. It also highlights how RTI exemptions operate in matters involving national security and sensitive information.

The key findings of the Court were:

1. Section 11 of the TRAI Act, 1997: TRAI’s function to ensure compliance with licence conditions cannot be interpreted so broadly as to cover all actions of telecom providers, particularly government-directed surveillance activities.
2. Section 11(3) restrictions: TRAI must perform its functions without compromising sovereignty, security of the State, friendly foreign relations, public order, decency, or morality.
3. Limits of Section 12: Demanding interception or phone tapping details from telecom companies under Section 12 would exceed the scope of functions defined in Section 11.
4. No interference with operators: Requiring telecom operators to disclose surveillance-related details would interfere with their statutory functions and go beyond the objectives of the TRAI Act.
5. RTI Act exemption: Information relating to interception, tapping, or tracking is exempt under Section 8(a) of the RTI Act, as disclosure could hamper investigations and jeopardise national security and strategic interests.

At Seraphic Advisors, our team regularly advises clients on the Technology, Media & Telecom regulatory framework and on regulatory & dispute resolution strategies. This decision reaffirms that telecom companies should prioritise licence compliance while allowing government authorities to handle surveillance and interception matters.