The Hindu : POTA and phone taps

Online edition of India's National Newspaper
Friday, Nov 01, 2002

Opinion

Opinion - Editorials

POTA and phone taps

THE PROSECUTION'S CASE in the December 13 Parliament attack case — the first case under POTA that reached the trial stage — has received a huge and embarrassing jolt. The Delhi High Court's ruling that intercepted phone calls cannot be used as evidence under POTA, if such interception fails to adhere to the procedures laid down in the Act, has major implications for the fate of what has been described as the most important case booked under the new terrorism legislation. With the Court holding that the prosecution had flouted the safeguards on phone tapping that are built into the law, the case against at least two of the four accused — S.A.R. Geelani and Navjot Sandhu — has been considerably weakened. The charges framed against these two are essentially built from transcripts of telephone conversations they allegedly had with others a day after the Parliament attack — transcripts which now cannot be submitted as evidence under POTA.

It may be tempting to view the police's failure to follow the procedure laid down for phone tapping as a mere technical lapse, but it was much, much more than that. The truth is that it wore the appearance of an attempt to abuse and exploit a law, which already confers enormous powers on the prosecuting authorities. Here is why. Under POTA, the police are required to write to a designated Competent Authority seeking permission to intercept phone calls, the Competent Authority in turn should authorise the interception in writing and, finally, copies of these documents should be made available to the accused ten days before the trial begins. None of this was done. Since cases under POTA were slapped on the accused six days after the December 13 outrage and since the tapped telephone conversations took place one day after the attack, what the police did was to claim that the telephones were tapped under the Indian Telegraph Act. A couple of letters were produced which authorised the tapping of the phones with retrospective effect; oddly enough, when these authorisation letters were written, the mobile phones of the accused were already in the possession of the police.

What the Delhi High Court has done is to hold, and very correctly, that evidence collected in such a manner is inadmissible under POTA. Procedural correctness is required in all legal matters but it is especially important in the context of the application of an extraordinary piece of legislation such as this. Apart from placing tremendous power in the hands of the police and restricting the rights of the accused at both the pre-trial and the trial stage, POTA makes a significant relaxation of an evidentiary nature. Confessional statements made before police officers can be admitted as evidence, a provision that tilts (many would say very unfairly) the jurisprudential balance in favour of the prosecution. Given all of this, it is imperative that all the procedures spelt out under the Act are faithfully carried out. It is important to recognise that such procedures are essentially in the nature of safeguards, written in specifically to act as checks against the abuse of the extraordinary powers that such a law confers on the state.

What happens to the case now? Having overruled its order admitting telephone transcripts as evidence, the Delhi High Court has thrown the judicial ball back into the trial court. It has left it free for the trial court to recast, modify, delete or reframe any of the charges against the accused in the light of its judgment. As for the prosecution, there is the chance that it can still make legal use of the transcripts, but these may be employed only to prove charges under ordinary criminal law. But as the Delhi High Court has cautioned, before admitting the transcripts as evidence, the trial court must carefully examine whether the manner in which they were obtained violates the Indian Telegraph Act. It is important that precedents are not set for the abuse of POTA. And, all in all, the High Court's ruling is an important check against such a possibility.

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