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in Saturday, November 23rd 2019

PUBLIC DEBATE

Private detectives walk a thin legal line in

India, even when not stealing phone
records
After the arrests of private investigators in Mumbai, the industry has
come under scrutiny for its practices.
Rajani Pandit, ostensibly India’s first female detective, has been accused of illegally
procuring call records. | HT Photo
Apr 11, 2018 · 11:30 am
Bhavya Dore
Last month the Association of Private Detectives and Investigators-India issued
guidelines to its 120-plus members, advising them not to seek phone records while
pursuing cases for clients. Following a meeting of office-bearers in Delhi, members
were warned that they risked losing their membership if they were caught doing so.
The advisory came in the wake of a series of arrests of private detectives in Mumbai
who had allegedly been illegally accessing such records and selling them. Through
February, the police arrested a handful of detectives – including Rajani Pandit,
ostensibly India’s first female detective – on the basis that they had been illegally
procuring phone records, including for certain high-profile clients. Lawyer Rizwan
Siddiqui, whose clients include actors Kangana Ranaut and Nawazuddin Siddiqui,
was also arrested later for his alleged involvement in the case. The police suspect the
detectives had been accessing call records of certain individuals and selling this
confidential information to clients.

“[This activity] is bringing a bad name to our profession and it is illegal,” said
Kunwar Vikram Singh, chairperson of the association.

Complicated business
The private detective industry has been booming in India, growing at around 30%
every year and is expected to touch Rs 1,700 crore by 2020, according to figures
released at a conference of the World Association of Detectives in Delhi last year.

Detective work has always been shadowy since it involves following people and
tracking their movements without their consent. But as technology evolves, the
dubious methods available to private eyes have grown, including the use of global
positioning system, as well as email and phone tracking. All these tools help private
detectives fill a demand for information that may not fall within the ambit of the
police, whether it is suspicious husbands and wives seeking to spy on their spouses or
pre-nuptial background checks. And for now, the industry is still self-regulated.

In 2007 the Private Detective Agencies Regulation Bill was introduced for licensing
and regulating private investigators but it is yet to be passed. It requires, among other
things, for detective agencies to have a licence from a central or state board to operate.
But an analysis of the bill by PRS Legislative, a research organisation that tracks
parliamentary proceedings, noted that “the Bill makes it an offence for an agent to
violate the right to privacy of an individual”, seemingly putting it in direct
contradiction with the common modus operandi of detectives.

While noting various Supreme Court observations on the issue of an individual’s right
to privacy, the analysis went on to state: “All of these judgments are with regard to
surveillance by state agencies, and it is unclear how they would apply when the
surveillance is conducted by private agencies.”
The Mumbai case is not the first time that detectives have been arrested for allegedly
harvesting and selling phone records. In Delhi, in 2013, a bunch of private detectives
were arrested for accessing and using call data records. In Bengaluru that same year, a
detective and a software developer were arrested for allegedly installing software on
people’s phones and tapping them.

Jignesh Chheda, head of Maratha Detective Agency in Mumbai, said it was better to
first approach the police or other authorities and if that didn’t bring resolution, then to
take the case to private detectives. Lalchand Punjabi, another detective from Mumbai,
said he refused call data records requests or those for spying on emails or call logs.

Call data or phone records comprise information held by mobile phone companies
with details of the numbers called, the duration of the calls and their frequency. The
police believe the arrested private detectives accessed such records – usually only
accessible for the purposes of criminal investigation with the sanction of a DCP-level
officer – through connections with corrupt lower level police officials.

Walking a thin line

Clearly, illegally accessing call data records is punishable, but what about a host of
other investigative procedures which occupy the ambiguous zone between permissible
and impermissible? Even today private detectives use old-school methods, such as
following targets, taking their pictures, and seeking personal health or bank records.

“I am not saying that keeping a watch on someone is legal,” said one Mumbai-based
private investigator who did not wish to be identified. “But what is wrong if it is for
good and I am helping clients?” He asked how he could present decisive proof that a
spouse is cheating, for example, without taking pictures covertly.

And while he claimed that he has never accessed call data records, he admitted using
tracking software in vehicles to pursue straying spouses, which, obviously, had been
done without their consent. “In personal matters, people can’t approach the police,
they will not entertain them,” he said. “Then how will we solve people’s problems?”

Monitoring teenagers is another area of their work about which detectives wielded the
moral argument that parents needed to know what their children were doing, where
they went and who they hung out with. This usually also involved following them and
if necessary, taking picture of the offending teens.
Singh compared the work of private investigators to the covert operations undertaken
by government agencies on foreign soil for the greater public good. “Information
gathering is the job of investigators,” he said. “When you conduct operations in
foreign lands you don’t take permission. You are doing it for the larger interest.”

Another investigator gave the example of a “pre-marriage investigation” in which the

man suspected that the prospective wife might be HIV-positive. Detectives followed
her, located her medical history – she was, indeed, HIV-positive – and handed over
the evidence to the client. “It all depends on the context,” said the investigator.

Yet another private detective justified that he only sold spyware that can filch
communication footprint from a person’s phone – from whom they are talking to,
when and what about to the substance of WhatsApp dealings. He never used it. “We
sell spyware and there is nothing illegal. It is the responsibility of the client as to
where they are installing it. As a seller I am not doing anything wrong.”

This person said their company drew the line at hacking a target’s email or other
accounts on the internet. The procedure though, is deceptively simple – all it takes is
sending someone a link or a file about something they are likely to click on, and once
they do, the tracking begins.

Nor black nor white

It isn’t clear how often private investigators have been taken to court in the discharge
of their duty, but some of their methods are undoubtedly dubious.

“A lot of what private detectives do can be construed as illegal,” said Apar Gupta, a
Delhi-based lawyer. “Following someone can be reported as an act of stalking.
Electronic surveillance and phone tapping can also attract penal sections of the law.
Private investigation might provide a useful social purpose and need not only involve
uncovering something bound by privacy – if they are going through public records for
instance – but there is often an element of friction with an individual’s privacy.”

Some private investigators said regulation would help streamline the profession. “If
the bill is passed it will be good for us,” said P Damodar, CEO and founder of Third
Eye Investigations in Hyderabad. “Only the genuine, authentic agencies will remain.”
He however pointed out that regulation could simply end up becoming
“strangulation”.