The National Investigation Agency (NIA) seems to have discovered the meaning of the quote recently. On July 28, a division Bench of the Supreme Court, comprising Justices Aniruddha Bose and Sudhanshu Dhulia, granted regular bail to Vernon Gonsalves and Arun Ferreira.
Gonsalves is a trade unionist, activist and academic, while Ferreira is an activist and a lawyer. The two are accused in the Bhima Koregaon–Elgar Parishad case and charged under the Unlawful Activities (Prevention) Act, 1967 (UAPA).
They had been incarcerated for almost five years without a trial. Among the conditions of the bail, the duo were required not to change their mobile phones, keep their phones charged at all times, keep the location status of the phones ‘active’ all through the day, and pair the devices with the devices of the investigating office of the NIA.
These harsh bail conditions did nothing to protect the right of the duo to a minimal level of privacy, as the bail conditions intend to keep the duo tethered to the authorities at all times. The bail conditions were perhaps also an indirect recognition of the commonplace notion that mobile phones are used as surveillance tools by authorities.
On August 17, an NIA special court of judge Rajesh Katari heard the difficulty faced by the NIA in complying with the bail conditions. On the issue of non-compliance with the bail condition of pairing devices, the court suggested installation of applications that can assist in pairing and tracking the devices on the mobile phones of the accused and the NIA officials. To this, the counsel representing the NIA raised concerns about the possible infringement of privacy of the concerned investigating officers of the NIA if the devices were to be paired.
As held in the case of Justice K.S. Puttaswamy and Another versus Union of India and Others (2017), the right to privacy is protected by Article 21 (protection of life and personal liberty) of the Constitution. Section 5(2) of the Indian Telegraph Act, 1885 allows electronic tapping and interception under certain conditions, including on the occurrence of public emergency, in the interest of public safety and for preventing incitement to the commission of an offence.
In the case of People’s Union for Civil Liberties versus Union of India and others (1996), the Supreme Court held that interception of telephones and wiretaps was a serious invasion of privacy. Notably, mobile phone tracking remains a grey area around the globe. In July 2018, the United State Supreme Court mandated a warrant for tracking a suspect.
Today, the court directed the NIA to conduct a thorough verification of the bail conditions. It also directed the NIA to apprise the court of the difficulties in complying with the bail conditions on the next date.
Further, the court observed that if the NIA is not able to meet the bail conditions, it will have to approach the Supreme Court to seek modifications of the conditions. The matter is posted for hearing on the plea of the accused persons for the NIA to comply with Section 207 (supply to the accused of a copy of the police report and other documents) of the Code of Criminal Procedure (CrPC).
During the previous hearings, the accused persons had raised the grievance that despite filing several applications with the investigating authorities under Section 207 of the CrPC, they had not been allowed access to the compact disks, which are an important piece of evidence furnished by the NIA in the case. The matter will be further heard on September 5. (IPA Service)
By Sarah Thanawala
