Public Safety and Private Phone Calls: The Recent Railway Order

Written By Joshita Pai

The Railway ministry recently issued a circular asking locomotive pilots (engine drivers) and assistant engine drivers to furnish details of their cell phones and phone numbers. It has demanded access to phone records to investigate whether the drivers were using their mobile phones during work, citing safety of passengers. The decision has not been well received by many officers and engine drivers since the order could affect privacy concerns.

It is important to note that the engine drivers and other assistants are issued cell phones and phone numbers in pursuit of a Closed User Group (CUG) plan, ‘Railtel’, which considerably reduces Ministry’s burden of executing the order. On the other hand, this would imply accessing a pre-generated database which would contain details of calls made and messages sent. In 2012, the Telecom Ministry, responding to the railway ministry’s concerns over growing numbers of rail accidents, issued a circular emphasizing the necessity to keep phones switched off. The guidelines instruct loco pilots to only use walkie-talkies or such communication sets and the guidelines provide that the railway administration is empowered to initiate steps to track or monitor calls originating from CUG or personal mobile phones. The order issued by the Railway Ministry on 10th October, 2015 requires access to phone records which indicate calls originated/received on CUG mobile phones.

The concern underlying the Railway Ministry’s frequent orders as mentioned earlier, is public safety; but accessing phone records may be excessive in the absence of safeguards. Accessing details of call logs will go beyond merely satisfying safety norms if details of the calls made can also be procured. It is also important to note that Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 does not include private communication within the ambit of sensitive personal information which the Rules bar from interception or access. An order clarifying that monitoring of phones will be limited to checking if the phones remained switched off in the period of run, would suffice the purpose.

The order finds legal backing in the Telegraph Act which permits government agencies to intercept phones and calls in exigent circumstances including public safety. Having said that, accessibility of phone records at the behest of a circular may find legal permissibility but they may occasionally encroach upon private space., Section 26 of the India Post Office Act of 1888 confers powers of interception of postal communications for the purpose of public good and similar provisions are enshrined for telephonic calls in the Telegraph Act. Statutory encroachments of the right to privacy is therefore, not restricted to this order. Delivering the PUCL judgment, the Supreme Court laid down a string of guidelines to regulate the power vested in government agencies while exercising phone intercepting powers under Section 5 of the Indian Telegraph Act. The Court accepted the stated explanation of public safety  that: “the expression “public safety” means the state or condition of freedom from danger or risk for the people at large”. The railway order in question is undeniably based out of grave concerns, more so since there have been instances in the past of rail accidents owing to distracted drivers. Procedural safeguards such as the extent of access in the hands of the authorities and enabling warning provisions to keep such acts in check will enable a meeting point of two conflicting interests.

The loco pilots and other officers in the railway department have decided to stage a two day protest in which inter alia, the order in question will also be addressed. The concern cited by the officials with respect to this order is potential privacy violations. However, the turn of events in the Aadhaar proceedings, has left the question of existence of constitutional right to privacy to a larger bench, which is yet to be constituted. Arguably, even if the bench decidedly recognizes privacy as a fundamental right, it will still operate within legitimate constraints, and public safety is definitely one of them.

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