The Mumbai High Court has directed the Securities and Exchange Board of India (SEBI) to file its reply within 3 weeks on a PIL charging them of asking for Call Data Records (CDRs) of 2327 subscribers, illegally, through various telecom service providers since 2009. Moreover, when information was sought in this regard through an RTI, SEBI furnished wrong details in its reply in violation of the RTI Act of 2005. The case came up for hearing on March 3, 2013 after a PIL was filed by the Indian Council of Investors in March this year.
For many years now, the SEBI has been monitoring CDRs of thousands of people along with the tower locations of these phone user – all this illegally, with the help of various telecom service providers in the country. When confronted by an ardent RTI activist, SEBI even went so far as to submit false statistics to hide its conduct.
SEBI has been routinely seeking sensitive telecom data of more than 2000 subscribers from various telecom service providers illegally despite the fact that SEBI does not figure in the list of authorized agencies of the Government of India which can seek details or intercept telephone calls, both inward and outward. SEBI officials have been particularly very aggressive collecting this information in the past three years. What is shocking is that this kind of information is being called even in cases where SEBI Board has not even initiated investigation. What is even more harrowing is the fact that there is no control mechanism in SEBI as to who should, if at all, ask for this data. Even junior most officials randomly ask for CDR details through simple letters and emails.
This can only be done under specified circumstances by authorized agencies and for a limited period, as and when required, only for safeguarding national interest.
What’s more interesting is the fact that in 2010, SEBI approached two authorized agencies, namely, Department of Revenue Intelligence (DRI) and Enforcement Directorate (ED) to help in monitoring of two telephone numbers, as advised by the Ministry of Home Affairs. But According to an internal note of SEBI, both the departments failed to provide the details. In the note, the then SEBI Chairman C.B. Bhave says: “SEBI has requested DRI and ED to obtain and provide the CDRs required in two major investigation cases. We have been unsuccessful in obtaining the data. Routing of SEBI request through designated agencies has not proved effective.”
In a communique, sent by Bhave to the Secretary of the Department of Economic Affairs, Ministry of Finance, on May 12, 2009, SEBI has even admitted that they do not have the requisite permission to access telephone call records from telecom service providers. Bhave says: “As per extant procedures the telephone agencies share their Call Data Records only with law enforcement agencies specifically authorized by Department of Telecommunications. Similarly Internet Service Providers are also obliged to disclose e mail records only to those agencies specifically included in the list approved by Government. SEBI is not on the list of such approved agencies.” It can be done only through government agencies like the ED in special cases that too with approval of the Ministry of Finance. However, SEBI has also admitted in an RTI reply that they have accessed call details of 2327 subscribers from various telecom service provides, which means that the call details were illegally accessed by SEBI.
It is pertinent to mention here that in such case of illegal monitoring of telephone calls of senior BJP leader Arun Jaitley, on February 14, 2013, four persons were arrested and denied bail. The access to this kind of sensitive information has been restricted by the Government of India to designated agencies which can do so only according to the procedures laid down, as the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21 of the Constitution of India as held by the Supreme Court in R. Rajagopal vs. State of Tamil Nadu [(1994) 6 SCC 632].
Moreover, SEBI, when asked through an RTI how many telephones are being intercepted provided wrong details in written which in itself is a crime under RTI Act, 2005.
The RTI activist from Mumbai filed an application on August 23, 2010 with SEBI, seeking information on the total number of telephone/mobile connections in respect of which Call Data Record (CDR) was sought by SEBI from various telecom service providers. The information was sought in respect to only the total number of phones that were being intercepted, and no personal details such as names, addresses, telephone numbers or names of service provider were sought.
However, on September 21, 2010, SEBI’s Central Public Information Officer (CPIO) Anil Kumar Sharma refused to disclose the information, even the number of phones put on the loop, stating that disclosing the requested information would impede the ongoing process of investigation/enquiry and therefore such information is exempt under Section 8(1)(h) of the RTI Act, 2005. Sharma says: “The information sought by you is strategic in nature. The disclosure of the same will impede the ongoing process of investigation/enquiry conducted by SEBI and therefore disclosure of such information is exempted under the RTI Act.”
Not satisfied with the reply, the activist filed an appeal on October 20, 2010 before Prashant Saran, Whole Time Member and Appellate Authority of SEBI, urging him to direct the SEBI officials to provide him only the number of telephone records being sought by SEBI from various service providers. On November 18, 2010, Saran issued direction to the CPIO to provide the information to the activist within one month. Saran says, “SEBI ought to collect and compile the data from different divisions and various files. I direct SEBI to provide the information to the activist within one month from the receipt of this order.”
Shockingly, the activist received a letter on December 7, 2010 from the then CPIO of SEBI, S.V Krishnamohan, which stated: “This is to inform you that call records were sought for a total of 13 numbers. Call details of 5 numbers are yet to be received from the service providers.”
As it was hard to believe that SEBI was tracking only 13 telephone numbers, the activist filed another application on December 20, 2010 requesting complete and correct information.
On the same day itself, he filed another RTI application seeking the copies of internal file noting dealing with his application, copies of replies received by the CPIO, from various departments of SEBI, and copies of CPIO’s compilation of the information received.
On December 21, 2010, the activist again received a letter from the CPIO in which Sharma says: “The total number of subscribers for which information has been sought is 2327.” SEBI admitted that it had called for CDR of 2327 subscribers, instead of 13 subscribers only as stated earlier by the then CPIO Krishnamohan, proving that the reply given by the CPIO at that time was incorrect and was an attempt to fudge the information.
It is worthwhile to mention here that the Government of India has laid down norms and procedures with respect to the enforcement agencies which can intercept telephonic communications and seek details of same. The interception and seeking of details can be resorted to only by the authorized agencies, only under certain circumstances as laid down as per the Indian Telegraph Act, 1885: on occurrence of any public emergency, interest of public safety, interest of sovereignty and integrity of India, friendly relations with foreign states, public order and preventing incitement to the commission of an offence.
It is pertinent to mention here since 2009, SEBI has been requesting to the Ministry of Finance and the Ministry of Home affairs to get included in the list of Law Enforcement Agencies which has powers to summon CDRs from service providers through the then SEBI Chairman C.B. Bhave. In one such letter, Dave urges: “Given the complexity of modern financial crimes, I would like to reiterate that it is vital for SEBI to have the powers to call for call/electronic data records. I should also emphasize that what we have sought is not the power to tap or intercept calls/electronic data flows, but only the powers to call for such data from the service providers as this becomes necessary for our investigation.” According to documents, both the government departments have turned down their request several times.
Instead SEBI was asked to seek CDR details through Department of Revenue Intelligence or Enforcement Directorate.
The RTI activist further claims that the SEBI officials have been asking for call data records of a large number of subscribers from telecom service providers every month. Most of the telecom service providers have been submitting the CDR information to SEBI; however, some of them have refused to give this information citing the legal provisions. The fact that SEBI has, till date, not initiated a single action against any telecom service provider who has refused to part with CDRs of its subscribers is a clear pointer towards the fact that SEBI actually does not have power to call for this data.
Now, The Indian Council of Investors, a company formed to safeguard the interest of the investors, filed a Public Interest Litigation (PIL) in Bombay High Court in March this year against the illegal tracking of telephones and wrongful disclosure of facts under RTI Act. The case came up for hearing on April 3, 2013. The court has directed SEBI to file its reply within three weeks.
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