Illegal tapping of phone calls violates Right to Privacy: Bombay HC sets aside interception orders issued by MHA

Illegal tapping of phone calls violates Right to Privacy: Bombay HC sets aside interception orders issued by MHA

Omkar Gokhale

In a significant ruling, the Bombay High Court held that illegal tapping of phone calls violates the Right to Privacy. The Court held that interception of telephone calls is permitted only in case of Public Emergency or in the interest of Public Safety.

In doing so, the Court quashed and set aside three separate telephonic interception orders issued by the Ministry of Home Affairs (MHA) against one Vinit Kumar, a 54-year-old businessman from Mumbai, allegedly involved in a case of bribery concerning an official of public sector bank.

A Division Bench of Justices Ranjit More and NJ Jamadar, in its judgment, allowed a writ plea filed by the businessman and also directed the Central Bureau of Investigation (CBI) to destroy copies of intercepted messages or recordings.

The Ministry of Home Affairs had issued three-interception orders between October 2009 and February 2010 and allowed the CBI to tap phone calls of the petitioner.

In view of this, the petitioner Vinit Kumar argued that the said orders were ultra vires of Section 5 (2) of the Indian Telegraph Act, 1885 and in violation of fundamental rights guaranteed under the Constitution of India.  It was also argued that the intercepted telephonic recordings were made part of the charge-sheet and all material collected on the basis of illegal recordings ought to be set at naught.

Section 5 (2), also known as ‘wire-tapping clause,’ empowers the Central Government to take possession of any licensed telegraphs in case of a public emergency or in the interest of public safety.

The Court noted that ‘public safety’ means the state or condition of freedom from danger or risk for the people at large.

The Division Bench went on to note,

“When either of two conditions is not in existence, it was impermissible to take resort to telephone tapping. As held in the PUCL case, 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.”

To decide the case, a Division Bench relied on the Supreme Court’s verdict in KS Puttaswamy v. Union of India case, also known as the Right to Privacy judgment.

In light of this, the Court said,

“The proposition that illegal tapping of telephone conversation violates right to privacy is now accepted and reinforced as guaranteed fundamental right under Article 21 of the Constitution of India in the judgment by a nine Judge Constitution Bench decision in KS Puttaswamy versus Union of India, by overruling the earlier Constitution Bench judgments.”

The Court also relied on the People’s Union for Civil Liberties (PUCL) v. Union of India decided by the Supreme Court in 1996.

In the PUCL case, the Apex Court had held that the Right to privacy would certainly include telephonic conversation in the privacy of one’s house or office. Telephone tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.

The PUCL verdict also has suggested safeguards under Section 5(2) of the Telegraph Act through Indian Telegraph Rules formed under the Statute. One of such safeguards included Review Committee to scrutinize and approve interception orders. The Committee comprises Cabinet Secretary, the Law Secretary and the Secretary of the Telecommunication Department of the Central Government.

In the present case, the respondent authorities had claimed that the three-interception orders are different from each other and are not in continuation.

However, perusing material on record did not concur with the submissions of the authorities and held,

“This action of issuing successive orders or repeated orders under sub-rule (1) of Rule 419(A) by the competent authority without making a reference to the review committee within 7 working days and/or there being scrutiny by the review committee under sub-rule (17) of Rule 419(A) is in clear breach of the statute, Rules and the Constitution of India.”

In this regard, the Court further noted that it is an admitted position that Rule 419(A)(17) of the Indian Telegraph Rules, 1951, which provides for the destruction of intercepted messages also adopts the same directions.

“Having held that the impugned interception orders have been issued in contravention of the provisions of section 5(2) of the Act, we have no option but to further direct the destruction of intercepted messages,” the Court held.

After perusing three separate orders issued by MHA, the Court further observed,

“All three impugned orders in the instant case bear the same number and ex-facie appears to have been issued in a similar manner before the expiry of the period of an earlier order. The 1st order dated 29th October 2009 is valid for 60 days. Before the expiry thereof, the order dated 18th December 2009 is issued for a further period of 60 days. And before the expiry of this second order, the third-order dated 24th February 2010 is issued for a further period of 60 days. There is no record produced to show that the compliance of Rules. This is wholly impermissible and in violation of the directions issued by the Supreme Court in PUCL’s case which was affirmed by the constitution bench judgment in KS Puttaswamy.”

Justice More, who authored the judgment held that the submissions by respondent authorities would not put them on better footing to take advantage of their own wrong.

The Court held that the directions of the Apex Court in PUCL and KS Puttaswamy cases are mandatory rules. In light of these judgments, the Division Bench observed,

“We may also add here that if the directions of the Apex Court in PUCL case which are now re-enforced and approved by the Apex Court in KS Puttaswamy as also the mandatory rules in regard to the illegally intercepted messages pursuant to an order having no sanction of law, are permitted to be flouted, we may be breeding contempt for law, that too in matters involving infraction of fundamental right of privacy under Article 21 the Constitution of India.”

Parting with the plea, the Division Bench set aside the three separate interception orders and ruled,

“We, therefore, quash and set aside three-interception orders dated 29th October 2009, 18th December 2009 and 24th February 2010 and consequently direct the destruction of copies of intercepted messages/ recordings. The intercepted messages/ recordings stand eschewed from the consideration of trial Court. The Petitioner is at liberty to adopt the remedy available in law for the other reliefs sought in the writ petition.”

The petitioner was represented by Senior Counsel Vikram Nankani along with advocates Sujay Kantawala and Ishan Srivastava. Advocate Rebeca Gonsalvez appeared for the CBI, while the state government was represented by Additional Public Prosecutor Aruna Pai.  Advocate P H Kantharia appeared for the Ministry of Home Affairs.

[Read Judgment]

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