On October 2, Amit Malviya, the head of the BJP’s IT Cell, accused India Today correspondent Tanushree Pandey of trying to “pester the victim’s brother for a confession video of the father”. He was referring to the family of the Dalit girl who was fatally assaulted by four upper caste Thakur men in Hathras, Uttar Pradesh, last month.

Malviya suggested that the journalist had coached the girl’s family into speaking out against the Adityanath government.

She had done nothing of the sort, as a recording of her telephonic conversation with the girl’s brother makes clear. During the 17-minute call, Pandey seeks to ascertain the authenticity of a video put out by Congress leader Priyanka Gandhi Vadra. In this video, shot by a family member, the girl’s father accuses government functionaries of pressuring him to make a statement in their favour.

Pandey asks the girl’s brother to make another video of his father confirming his remarks. “The video posted by Priyanka Gandhi has been picked by many already,” she says. “I request you to record a video of your father saying, ‘Yes, there was pressure on me to give a statement that we are satisfied with the investigation and I want an investigation since I have lost my daughter.”

Pandey’s conversation quickly made its way to social media and Hindu nationalist websites such as OpIndia – and the BJP’s leaders and supporters seized upon it to try and discredit her work. There was a reason they went after Pandey: it was her coverage of the UP police’s forced cremation of the victim’s body in the dead of night that prevented Adityanath’s BJP government from covering up its shameful handling of the matter.

But how did Pandey’s conversation with the girl’s brother get leaked in the first place?

There are only three ways this could have happened. One, Pandey leaked the recording herself. Two, it was obtained from the phone of the victim’s brother, likely by the police guarding their home and monitoring their activities. Three, government agencies tapped the calls of either Pandey or the victim’s brother, or both.

Pandey obviously didn’t leak the recording herself and the victim’s family told Newslaundry that the brother’s phone did not have a call recording app. This suggests the recording could only have come from the tapping of phones. Pandey and India Today have said as much.

If Pandey’s call was indeed tapped and leaked by government agents, it raises many troubling questions that the Adityanath government must answer.

Who authorised the phone tapping?

According to journalist and security analyst Saikat Datta, India has 10 agencies that are authorised to tap phones. Replying to a question in the Lok Sabha in December 2019, India’s deputy home minister, G Kishan Reddy, named the 10 agencies which are authorized to put anyone on surveillance. They include, besides state police, the Central Bureau of Investigation, the Enforcement Directorate, the Intelligence Bureau, and the Narcotics Control Bureau. They can intercept and monitor calls, even obtain information stored on computers.

“The state police have the legal mandate to carry out interception and monitoring of communication. The question is regarding the conditions under which they are allowed to do that. It should either be related to law and order or prevention of crime,” Datta noted. “How did you determine that a journalist was going to affect law and order?”

What was the purpose of the tapping?

“India Today asks why was the telephone of our reporter, who was covering the Hathras murder, being tapped?” Pandey’s channel asked the Uttar Pradesh government through a formal statement. “If it was the phone [of the victim’s brother] that was being tapped, then the government needs to answer why phones of the grieving victim’s family are under surveillance or being tapped.”

To monitor a person’s communication, the agency authorised to do the surveillance must specify reasons for it. Niira Radia’s calls were intercepted by the Income Tax authorities who were investigating the corporate lobbyist for tax evasion, Datta explained. Similarly, the IB can monitor a person’s phones if it’s investigating them for terrorism.

What reason could government agencies possibly have to tap the phone of a journalist doing her work or that of a man struggling to get justice for her murdered sister?

Can journalistic work cause law and order problems?

On October 3, the digital rights group Internet Freedom Foundation filed an RTI request with UP’s home department for details of the phone tapping of Pandey and the Hathras victim’s family. Specifically, they asked for the duration of the surveillance and the list of the officials authorised to access information obtained through phone tapping.

The foundation also asked whether the authorisation given by the government to tap the phones of the journalist and the victim’s family was in consonance with the Indian Telegraph Act of 1885.

The Telegraph Act clearly states that such surveillance can be done only when “there is an occurrence of any public emergency” or it “is in the interests of the sovereignty and integrity of India”. Rule 419A states that “directions for interception of messages may be passed only by an order made by the union home secretary or the state home secretary”. And such an order, it adds, can be issued only in “unavoidable circumstances”.

“These provisions are in place to ensure that all surveillance that is carried out is legitimate and that the government machinery is not misused to abrogate the fundamental rights of the citizens of India,” said Anushka Jain, a fellow at the IFF. “Thus, for the phone tapping of Tanushree Pandey, it is also necessary that this procedure be followed so that the surveillance which takes place is legitimate.”

Questioning the necessity of phone tapping, Jain said, “The UP government and its police need to show how this tapping was justified under the provisions of the law in place.”

Rule 419A mandates, on the threat of punishment, even telecom service providers to ensure precaution during the interception of communication. “In case of established violation of license conditions pertaining to maintenance of secrecy and confidentiality of information and unauthorized interception of communication, action shall be taken against the service providers,” Rule 419A (15) states. “This shall include not only fine but also suspension or revocation of their licenses.”

As Jain put it, “If surveillance is done in the absence of conformity with these provisions then it is illegal and akin to mass surveillance. This also shows the UP government is using the state machinery to curb dissent and the freedom of press.”

Who leaked the recording on social media?

It is not clear who first posted the recording of Pandey’s call on social media. Malviya, though, has been posting snippets of the recording on his timeline with some dedication. And not just this. The BJP leader on October 2 posted a video of the victim, claiming it had been recorded outside the Aligarh hospital where she was treated for a time. In it, the victim narrates how she was attacked and strangled by the four Thakur men. Because she doesn’t mention being raped, Malviya insisted that she hadn’t been sexually assaulted. He didn’t even bother blurring the victim’s face to protect her identity, thus violating Section 228A of the Indian Penal Code.

Moreover, Newslaundry found that contrary to Malviya’s claims, the video was shot at the Chandpa police station, where the victim had been taken by her family after the assault. There, she had been made to lie down on a concrete platform, groaning in pain. In this video, the girl indeed only talks about the strangulation. In another video shot at the Aligarh hospital, however, she does she mention “zabardasti”, referring to rape. Malviya, of course, didn’t tweet out this second video.

Such conduct of Malviya raises the grave question of collusion, as Datta pointed out.

“When the state decides to work in collusion with a private person to target an individual, it’s dangerous and violates the law,” said Datta. “It needs to be investigated who leaked this information.”

As to why the phone tapping itself could possibly be illegal, Datta pointed to Rule 419A. He also cited Section 5 of the Telegraph Act which emphasises “public emergency” as a legitimate reason for intercepting communication.

To buttress his point, Datta cited the 1997 PUCL judgement in which the Supreme Court, while laying down guidelines for surveillance, emphasised that “strong reasons need to be specified in order to issue such a directive”.

Given that legal safeguards are in place, Jain said Pandey could approach the judiciary against the violation of her fundamental rights guaranteed by the constitution.

Pandey wasn’t immediately available for comment.

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