Telephone-Tapping is a serious invasion of an individual’s privacy. With the growth of highly sophisticated communication technology, the right to hold telephone conversation, in the privacy of one’s home or office without interference, is increasingly susceptible to abuse. It is no doubt correct that every Government, howsoever democratic, exercises some degree of sub-rosa operation as a part of its intelligence out-fit but at the same time citizen’s right to privacy has to be protected from being abused by the authorities of the day.
People’s union of civil liberties v. Union of India, (1996)
To ensure the fair and reasonable procedure for phone tapping, a writ petition under article 32 was filed by ‘People’s union of civil liberties’ high lighting the incidents of telephone tapping in the recent past. The petitioner challenged the constitutional validity of Section 5(2) of the Indian Telegraph Act, 1885 (the Act) in the alternative it was contended that the said provisions be suitably read-down to include procedural safeguards to rule out arbitrariness and to prevent the indiscriminate telephone-tapping.
The CBI Report on Phone Tapping
The writ petition was filed in the wake of the report on “Tapping of politicians phones” by the Central Bureau of Investigation (CBI). In which, two of the paragraphs were as follows-
“(iii) In respect of 133 cases, interception of the phones was done beyond the authorised part. The GM (O), MTNL in is explanation has said that this was done in good faith on oral requests of the representatives of the competent authorities and that instructions have now been issued that interception beyond authorised periods will be done only on receipt of written requests.
22. Investigation has also revealed that various authorized agencies are not maintaining the files regarding interception of telephones properly. One agency is not maintaining even the log books of interception. The reasons for keeping a telephone number on watch have also not been maintained properly. The effectiveness of the results of observation have to be reported to the Government in quarterly returns which is also not being sent in time and does not contain all the relevant information.”
Provision of ‘Telegraph Act, 1885’
The provision under question was the section 5(2) of the Telegraph Act, 1885, according to which, in the event of the occurrence of a public emergency or in the interest of public safety the Central Government or the State Government or any officer specially authorised in this behalf, can intercept messages if satisfied that it is necessary or expedient so to do in the interest of:
(i) The sovereignty and integrity of India.
(ii) The security of the State.
(iii) Friendly relations with foreign states.
(iv) Public order.
(v) For preventing incitement to the commission of an offence.
It is also relevant to mention here section (7) of the Act which gives rule making power to the government for preventing the improper interception or disclosure of messages. However, at the time of petition, no rules were made by the government under this provision.
Contention of the counsels
Counsels for the petitioner contended that right to privacy is a fundamental right guaranteed under Article 19(1) and Article 21 of the Constitution of India. And, to save Section 5(2) of the Act from being declared unconstitutional it is necessary to read-down the said provision to provide adequate machinery to safeguard the right to privacy, because, not only the substantive law but also the procedure provided therein has to be just, fair and reasonable.
There were also two interveners in this case, Kapil sibbal, and Rajeev dhawan. Kapil Sibal at the outset stated that in the interest of the security and sovereignty of India and to deal with any other emergency situation for the protection of national interest, messages may indeed be intercepted. According to him the core question for determination is whether there are sufficient procedural safeguards to rule out arbitrary exercise of power under the Act.
Mr. Sibal contended that Section 5(2) of the Act clearly lays down the conditions/situations which are sine qua non for the exercise of the power but the manner in which the said power can be exercised has not been provided.
The case on which both parties relied on
This was the case of ‘Kharak Singh v. State of UP, (1964)’. In this case, the question for consideration before the Court was whether “surveillance” under Chapter XX of the U.P. Police Regulations constituted an infringement of any of the fundamental rights guaranteed by Part III of the Constitution.
Regulation 236(b) which permitted surveillance by “domiciliary visits at night” was held to be violative of Article 21 on the ground that there was no “law” under which the said regulation could be justified.
The word “life” and the expression “personal liberty” in Article 21 were elaborately considered by the Court in Kharak Singh’s case. Article 21 of the Constitution interpreted by all the seven learned Judges in Kharak Singh’s case (majority and the minority opinions) to include that “right to privacy” is a part of the right to “protection of life and personal liberty” guaranteed under the said Article.
‘Right to privacy’ as fundamental right
After referring the Kharak Singh’s case, the court in the present case, further affirmed that right to privacy is a part of the right to “life” and “personal liberty” enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy, Article 21 is attracted. The said right cannot be curtailed “except according to procedure established by law”.
While discussing the right to privacy for telephone tapping, the court said that,
“the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as “right to privacy”. Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is an important facet of a man’s private life. Right to privacy would certainly include telephone-conversation in the privacy of one’s home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.
Right to freedom of speech and expression is guaranteed under Article 19(1)(a) of the Constitution. This freedom means the right to express one’s convictions and opinions freely by word of mouth, writing, printing, picture, or in any other manner. When a person is talking on telephone, he is exercising his right to freedom of speech and expression. Telephone-tapping unless it comes within the grounds of restrictions under Article 19(2) would infract Article 19(1)(a) of the Constitution.”
Jurisdiction to exercise power of section 5(2)
The court while analyzing the Section 5(2) noted that, Section 5(2) of the Act permits the interception of messages in accordance with the provisions of the said Section. “Occurrence of any public emergency” or “in the interest of public safety” are the sine qua non. for the application of the provisions of Section 5(2) of the Act.”
And further emphasized that, unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers under the said Section.
Public emergency would mean the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action.
The expression “public safety” means the state or condition of freedom from danger or risk for the people at large. When either of these two conditions are not in existence, the Central Government or a State Government or the authorised officer cannot resort to telephone tapping even though there is satisfaction that it is necessary or expedient so to do in the interests of sovereignty and integrity of India etc.
In other words, even if the Central Government is satisfied that it is necessary or expedient so to do in the interest of the sovereignty and integrity of India or the security of the State or friendly relations with sovereign States or public order or for preventing incitement to the commission of an offence, it cannot intercept the messages or resort to telephone tapping unless a public emergency has occurred or the interest of public safety or the existence of the interest of public safety requires. Neither the occurrence of public emergency nor the interest of public safety are secretive conditions or situations. Either of the situations would be apparent to a reasonable person.
A just, fair and reasonable procedure
The court emphasized the need of just, fair and reasonable procedure because, it has been settled by the Court in Maneka Gandhi v. Union of India, that “procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself”. Thus, understood, “procedure” must rule out anything arbitrary, freakish or bizarre. A valuable constitutional right can be canalized only by civilised processes”.
Guidelines for exercising the power of Phone-Tapping
The court laid down procedural safeguards for the exercise of power under Section 5(2) of the Act so that the right to privacy of a person is protected. And therefore, directed and ordered as under-
1. An order for telephone-tapping in terms of Section 5(2) of the Act shall not be issued except by the Home Secretary, Government of India (Central Government) and Home Secretaries of the State Governments.
In an urgent case the power may be delegated to an officer of the Home Department of the Government of India and the State Governments not below the rank of Joint Secretary. Copy of the order shall be sent to the Review Committee concerned within one week of the passing of the order.
2. The order shall require the person to whom it is addressed to intercept in the course of their transmission by means a public telecommunication system, such communications as are described in the order. The order may also require the person to whom it is addressed to disclose the intercepted material to such persons and in such manner as are described in the order.
3. The matters to be taken into account in considering whether an order is necessary under Section 5(2) of the Act shall include whether the information which is considered necessary to acquire could reasonably be acquired by other means.
4. The interception required under Section 5(2) of the Act shall be the interception of such communications as are sent to or from one or more addresses, specified in the order, being an address or addresses likely to be used for the transmission of communications to or from, from one particular person specified or described in the order or one particular set of premises specified or described in the order.
5. The order under Section 5(2) of the Act shall, unless renewed, cease to have effect at the end of the period of two months from the date of issue. The authority which issued the order may, at. any time before the end of two-month period renew the order if it considers that it is necessary to continue the order in terms of Section 5(2) of the Act. The total period for the operation of the order shall not exceed six months.
6. The authority which issued the order shall maintain the following records:
(a) the intercepted communications,
(b) the extent to which the material is disclosed,
(c) the number of persons and their identity to whom any of the material is disclosed.
(d) the extent to which the material is copied and
(e) the number of copies made of any of the material.
7. The use of the intercepted material shall be limited to the minimum that is necessary in terms of Section 5(2) of the Act.
8. Each copy made of any of the intercepted material shall be destroyed as soon as its retention is no longer necessary in terms of Section 5(2) of the Act.
9.There shall be a Review Committee consisting of Cabinet Secretary, the Law Secretary and the Secretary, Telecommunication at the level of the Central Government.
The Review Committee at the State level shall consist of Chief Secretary, Law Secretary and another member, other than the Home Secretary, appointed by the State Government.
(a) The Committee shall on its own, within two months of the passing of the order by the authority concerned, investigate whether there is or has been a relevant order under Section 5(2) of the Act. Where there is or has been an order whether there has been any contravention of the provisions of Section 5(2) of the Act.
(b) If on an investigation the Committee concludes that there has been a contravention of the provisions of Section 5(2) of the Act, it shall set aside the order under scrutiny of the Committee. It shall further direct the destruction of the copies of the intercepted material.
(c) If on investigation, the Committee comes to the conclusion that there has been no contravention of the provisions of Section 5(2) of the Act, it shall record the finding to that effect.
People’s Union of Civil Liberties vs Union Of India; AIR 1997 SC 568,