Madras High Court: In a writ petition filed under Article 226 of the Constitution of India on phone tapping and right to privacy, challenging an order passed by the Secretary to Government of India, Ministry of Home Affairs under Section 5(2) of the Telegraph Act, 1885( ‘Act’) and Rule 419-A of the Telegraph Rules, 1951 (‘Rules’) authorizing tapping of the mobile phone of the petitioner by Central Bureau of Investigation (‘CBI’), a Single Judge bench of A. Anand Venkatesh, J. held the following:
- The right to privacy is now an integral part of the right to life and personal liberty guaranteed under Article 21 of the Constitution of India.
- Telephone tapping constitutes a violation of the right to privacy unless justified by a procedure established by law. Section 5(2) of the Act authorizes interception of telephones only in the event of a public emergency or in the interests of public safety. Both these contingencies are not secretive conditions and would be apparent to a reasonable person. As laid down in in People’s Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301, it is only when these two situations exist that the Authority may pass an order directing interception, after recording its satisfaction that it is necessary or expedient to do so in the interest of:
(1) The sovereignty and integrity of India,
(2) The security of the State,
(3) Friendly relations with foreign States,
(4) Public order, or
(5) Preventing incitement to the commission of an offence.
- In the instant case, the impugned order dated 12-08-2011 does not fall within the rubric of “public emergency” or “in the interests of public safety” as explained in People’s Union for Civil Liberties (supra) The facts of the case reveal it to be a covert operation/secretive situation for the detection of crime, which would not be apparent to a reasonable person. As the law presently stands, such a situation does not fall within the scope of Section 5(2) of the Act.
- The respondents have also contravened Rule 419-A(17) of the Rules by failing to place the intercepted material before the Review Committee within the stipulated time to examine whether the interception complied with Section 5(2) of the Act.
- As a consequence of points (iii) and (iv), the impugned order dated 12-08-2011 must necessarily be set aside as unconstitutional and one without jurisdiction. Besides violating Article 21, it is also ultra vires Section 5(2) of the Act, as well as in violation of the mandatory provisions of Rule 419-A of the Rules.
-
It follows that the intercepted conversations collected pursuant to the impugned order dated 12-08-2011, in violation of Section 5(2) of the Act and Rule 419-A(17) of the Rules, shall not be used for any purposes whatsoever. However, the above direction shall have no bearing on other material that has been collected by the CBI subsequent to and independent of the intercepted call records, which shall be considered by the Trial Court on its own merits, without being influenced by any observations made in this order
Background
The petitioner, a Managing Director of Everonn Education Ltd., challenged an order passed under Section 5(2) of the Act and Rule 419-A(1), which authorized the interception of his phone communications. The order was based on grounds of public safety and prevention of incitement to an offence.
Following this, on 29-08-2011, the CBI registered an FIR against 3 persons including the petitioner for offences under the Penal Code, 1860 and Section 120-B and Section 7 of the Prevention of Corruption Act, 1988. It was that one of the accused have demanded a ₹50 lakh bribe from the petitioner to help Everonn Education evade taxes.The CBI completed its investigation and filed a final report. The petitioner initially challenged the interception order which was later dismissed with liberty to approach the appropriate forum. The present petition was filed accordingly.
Issues, Analysis and Decision on Phone Tapping and Right to Privacy
(1) What is the scope of the right to privacy guaranteed under Article 21 of the Constitution in the context of private conversations over the telephone/mobile phone? Does unauthorized phone tapping violate Article 21 of the Constitution?
The Court observed that the right to privacy has long been regarded as one of the most sacred liberties of the individual. It noted that even before the concept was formally rooted in Indian jurisprudence, its existence had been recognised and upheld by courts in various jurisdictions.
The Court affirmed that the right to privacy is an integral facet of the right to life and personal liberty under Article 21 of the Constitution of India. It held that this principle is well-settled, and any attempt by the State to restrict an individual’s right to privacy must be justified by a procedure established by law. Unless such a restriction meets the test of legality, necessity, and proportionality, the right remains protected.
Regarding the question of whether phone tapping constitutes a violation of the right to privacy under Article 21, the Court relied on People’s Union for Civil Liberties (supra). It held that there can be no doubt that telephone tapping infringes Article 21 unless such infringement is backed by a procedure established by law. The Court emphasised that any such intrusion must meet the constitutional standards of legality, necessity, and proportionality.
The Court took note of Section 5 of the Act and observed that the effect of the amendment was to align Sections 5(1) and 5(2) with the permissible grounds of restriction under Article 19 of the Constitution. It noted that the phrases “public emergency” and “in the interest of public safety” take colour from one another and must be interpreted in conjunction. In the first part of Section 5(2), these phrases appear together, and the context is clarified further, a “public emergency” under this section refers to situations affecting public safety, the sovereignty and integrity of India, State security, foreign relations, public order, or the prevention of incitement to commit an offence.
After considering the decisions in Hukam Chand Shyam Lal v. Union of India, (1976) 2 SCC 128 and People’s Union for Civil Liberties (supra), the Court observed that certain conditions must be cumulatively satisfied to invoke powers under Section 5 of the Telegraph Act. Keeping these principles in view, the Court noted that, in the present case, a perusal of the impugned order revealed that it was purportedly passed under Section 5(2) of the Act and Rule 419-A of the Telegraph Rules.
(2) Does the impugned order meet the requirements of Section 5(2) of the Act?
The Court observed that a reading of the impugned order indicated that the Secretary to the Government had mechanically reproduced the language of Section 5(2) of the Telegraph Act without referencing any factual basis. It emphasised that when an authority is required to record its satisfaction while passing an order, there must be clear evidence of application of mind to the specific facts of the case. This requirement is particularly crucial as an order passed under Section 5(2) is subject to review under Rule 419-A(17) by the Review Committee, making the presence of a reasoned and fact-based order essential.
The Court noted that there appeared to be no serious application of mind by the Secretary to the Government, as the order merely stated that it was passed for “reasons of public safety.” The Court emphasised that it cannot simply presume this to mean “in the interests of public safety” as required under Section 5(2) of the Telegraph Act. Such a vague recital, without a factual foundation or demonstrable urgency, fails to meet the legal threshold for invoking surveillance powers under the Act.
The Court highlighted that the entire operation in this case involved covert surveillance of the petitioner’s mobile phone and the consequent interception of conversations between the accused persons. This was clearly a covert operation. The term “interests of public safety,” as explained in People’s Union for Civil Liberties (supra), contemplated a situation that was not secretive and was apparent to a reasonable person. By no stretch of imagination could the facts of this case be characterized as meeting the aforesaid requirements to bring it within the rubric of “interests of public safety” as explained by the Supreme Court.
The Court said that the effect of a breach of public order would have involved a wide spectrum of the public and would not have involved a covert operation hatched and carried out in secrecy, as in the case at hand. In fact, the use of Section 5(2) of the Act to detect the commission of ordinary crimes, de hors the requirement of public emergency or the interests of public safety, appeared to be clearly misconceived. Where phone tapping had been found necessary to tackle crimes, such power had been expressly conferred, as in certain special statutes like the Maharashtra Control of Organized Crime Act, 1999. Section 14 of the said Act authorized interception of wire, electronic, or oral communication for the purposes of investigating organized crime. The words of Section 5(2) of the Act could not be strained to include the detection of ordinary crime.
The Court concluded that it was not open to the CBI to say that the requirement of public emergency and the interests of public safety should be confined to situations that were secretive, especially when the Government themselves had understood the scope of Section 5(2) of the Act in that manner. However noble and well-intended the objective may have been, tapping of phones de hors a ‘public emergency’ or in the ‘interests of public safety,’ as stipulated in Section 5(2) of the Act, could not be legally justified as the law stood at the time.
The Court stressed that the boundaries for the invasion of a fundamental right through the medium of enacted law were a function of the Legislature and not the Court. Section 5(2) of the Act had set out the Lakshman Rekha, and the role of the Court was confined to ensuring that the threshold was not crossed. As sentinels on the qui vive, the Courts were gatekeepers of fundamental rights. Gatekeepers could not become gate makers to reposition the gates as and when the Executive required, without the intervention of the Legislature.
The Court held that the impugned order did not pass muster under either of the two conditions precedent, i.e., ‘public emergency’ and ‘interests of public safety,’ required for the exercise of jurisdiction under Section 5(2) of the Act. Consequently, the impugned order was, on the face of it, without jurisdiction and was liable to be quashed on this short ground.
(3) Have the respondents complied with the procedural safeguards set out in Rule 419-A of the Rules?
The Court noted that the exercise of power under Section 5(2) of the Act was coupled with a duty to forward the same under Rule 419-A(17) of the Rules to examine whether the jurisdictional requirements under Section 5(2) had been satisfied. Admittedly, in the instant case, the intercepted material had not been placed before the Review Committee at all. Thus, there had been a complete disregard for compliance with the mandatory provisions of law.
The Court noted that under Sub-Rule (9), if the Review Committee was of the opinion that the directions were not in accordance with the provisions of Rule 419-A of the Rules, it was empowered to set aside the directions and order the destruction of the copies of the intercepted messages. The fact that the consequences of non-compliance with the procedure prescribed under Rule 419-A were also provided under the same Rule further reinforced the intention of the Legislature to make the said procedure mandatory. Hence, the non-compliance with the procedure under Rule 419-A was undoubtedly fatal. At any rate, since the impugned order was also in contravention of the substantive law as laid down in Sub-Section (2) of Section 5 of the Act and was declared illegal, the consequential action of respondents 2 and 3 in intercepting the mobile telephone of the petitioner was automatically rendered unauthorized. Hence, whatever information was obtained pursuant to the order dated 17-11-2003 could not be taken into consideration for any purpose whatsoever.
The Court said that in view of the fact that the intercepted material had not been placed before the Review Committee in a manner contemplated under Rule 419-A(17) of the Rules for scrutinizing whether the requirements of Section 5(2) of the Act were satisfied or not, it must necessarily follow that the impugned order was also vitiated by non-compliance with the mandatory requirements of the aforesaid provisions.
(4) What is the effect of evidence collected pursuant to an unconstitutional act of phone tapping?
The Court concluded that the intercepted material collected pursuant to the impugned order, in violation of Section 5(2) of the Act and Rule 419-A(17) of the Rules, shall not be used for any purposes whatsoever.
Hence, the Court set aside the impugned order.
[P.Kishore v Secretary to Government, 2025 SCC OnLine Mad 3053, decided on 02-07-2025]
Advocates who appeared in this case :
For Petitioner: Mr. Sharath Chandran
For Respondents: Mr. AR.L. Sundaresan, ASG assisted by Mr. T.V. Krishnamachari, SPC Mr. K. Srinivasan, SPC
Buy Constitution of India HERE
Buy Penal Code, 1860 HERE
Buy Prevention of Corruption Act, 1988 HERE
