The Madras High Court on Wednesday held that phone-tapping constitutes a violation of the fundamental right to privacy unless it is justified by a procedure established by law [P Kishore v. The Secretary to Government].
Justice N Anand Venkatesh observed that Section 5(2) of the Indian Telegraph Act, 1885 permits phone-tapping in instances of a public emergency or in the interest of public safety, but the wording of the provision shouldn't be stretched to cover normal criminal investigations.
"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 on the occurrence of a public emergency or in the interests of public safety...the words of Section 5(2) of the Act cannot be strained to include detection of ordinary crime," Court observed.
The Court was hearing a plea challenging a 2011 order issued by the Union Ministry of Home Affairs authorising the Central Bureau of Investigation (CBI) to tap the mobile phone of the petitioner P Kishore, who was then the Managing Director of Everonn Education Limited.
The interception was linked to a CBI investigation based on a First Information Report (FIR) registered in August 2011, in which Kishore was named as one of the accused. The FIR alleged that Andasu Ravinder, an IRS officer serving as Additional Commissioner of Income Tax, demanded a ₹50 lakh bribe from Kishore to assist the company in evading taxes. The bribe was allegedly to be routed through Uttam Bohra, a friend of Ravinder.
Acting on the information, the CBI intercepted Ravinder and Bohra near the former's residence and seized a carton containing ₹50 lakh. Neither of them could provide a satisfactory explanation for the money. Notably, Kishore was not present at the scene, and no cash was recovered from him.
Challenging the phone-tapping order, Kishore argued that it violated his fundamental right to privacy under Article 21 of the Constitution. He contended that the legal prerequisites for such surveillance - specifically, the existence of a public emergency or a threat to public safety - were absent.
He also submitted that the government failed to follow the procedural safeguards laid down in Rule 419-A of the Telegraph Rules and the Supreme Court’s judgment in People’s Union for Civil Liberties v. Union of India (PUCL case).
The Centre and CBI defended the order, contending that the interception was necessary to prevent and investigate corruption, which they claimed constituted a threat to public safety.
However, the Court rejected this argument, stating that such a broad interpretation would dilute the constitutional protection of the right to privacy.
"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 in the interests of public safety appears to be clearly misconceived. Where phone tapping has been found necessary to tackle crimes, such a power has been expressly conferred as for example in certain special statutes like the Maharashtra Control of Organized Crime Act, 1999. Section 14 of the said Act authorizes interception of wire, electronic or oral communication for the purposes of investigating into organized crime. The words of Section 5(2) of the Act cannot be strained to include detection of ordinary crime."
The Court observed that the phone-tapping order simply repeated the wording of Section 5(2) of the Telegraph Act without referring to any facts, showing no real application of mind.
"When an Authority is required to set out its satisfaction while passing an order, the order must disclose that there has been application of mind to the facts of the case," the order stated.
The Court added that no matter how noble or well-meaning the intention, phone-tapping without a 'public emergency' or concern for 'public safety' cannot be justified as the law stands presently.
It further noted that the tapped evidence was not placed before a Review Committee, as laid down in the PUCL case.
"The very fact that the intercepted material was not even placed before the Review Committee for its scrutiny would show that the respondents have clearly acted in brazen violation of the law."
Accordingly, the Court quashed the interception order of August 2011 and declared all telephonic communications intercepted pursuant to it as invalid.
However, the Court clarified that its order would not impact any evidence the CBI gathered independently of the intercepted call records in the wider corruption probe, and that such evidence should be evaluated by the trial court on its own merits.
Advocates Sharath Chandran and Rajagopal Vasudevan appeared for the petitioner.
Additional Solicitor General ARL Sundaresan, assisted by Advocate TV Krishnamachari, appeared for the Union.
Advocate K Srinivasan appeared for the CBI.
[Read Order]