It has been written by Aditya Kumar, a third-year law student of ICFAI University, Dehradun

Case Details:-

Court- Supreme Court of India

Equivalent citation- AIR 1997 SC 568

Bench - K Singh, S S Ahmad

Decided on – 18 December, 1996

Case type – Civil Writ Petition

Parties:-

Petitioner: The People’s Union of Civil Liberties (PUCL)

Respondents: Union of India

ABSTRACT:-

In this public interest litigation brought by the People's Union of Civil Liberties, the challenge was directed at Section 5(2) of the Indian Telegraph Act of 1885, arguing that it infringes upon individuals' right to privacy. The Supreme Court ruled that unauthorized phone tapping indeed violates this fundamental right if proper legal procedures and safeguards are not followed. While Section 5(2) permits phone tapping under specific conditions, the Court highlighted that the existing framework lacked adequate procedural safeguards. To ensure that individuals' privacy rights are upheld, the Court established detailed guidelines for the lawful exercise of phone tapping powers.

INTRODUCTION:-

In this case, the Supreme Court ruled that phone tapping, when not conducted in accordance with legal procedures, infringes upon the fundamental right to privacy. The Court emphasized that this right can only be breached if it adheres to a procedure prescribed by law. It also criticized the executive branch for failing to follow proper procedures and for misusing its surveillance powers.

The right to privacy falls under the "right to life and personal liberty" as outlined in Article 21 of the Indian Constitution, a fundamental right that can only be curtailed by a legally established procedure. Article 19 also provides certain essential personal liberties to citizens.

The Court observed that, in the absence of a fair procedure to regulate the exercise of powers under Section 5(2) of the Indian Telegraph Act, it becomes challenging to protect the rights guaranteed by both Articles 19 and 21.Top of FormBottom of Form

FACTS OF THE CASE:-

In this case, a voluntary organization , named the People’s Union for Civil Liberties (PUCL) filed a public interest litigation challenging the validity of Section 5(2) of the Indian Telegraph Act of 1885. This section allows the Union or State Governments to intercept communications during public emergencies or for public safety, provided it is necessary to uphold national sovereignty, maintain friendly foreign relations, or ensure public order. The PIL, filed under Article 32 of the Indian Constitution, was prompted by a Central Bureau of Investigation report revealing that politicians' phones were tapped with procedural lapses. This tapping was carried out by Mahanagar Telephone Nigam Limited (MTNL) at the behest of government officials.

ISSUES RAISED BEFORE THE COURT:-

1. Whether section 5(2) of the Indian Telegraph Act was infringing the right to privacy of the citizens?

2. Whether there was a requirement to include procedural safeguards in Section 5(2) in order to remove arbitrariness and prevent indiscriminate tapping of phones?

ARGUMENTS FROM THE PETITIONER SIDE:-

· Learned counsel for the petitioner argued that right to privacy is a fundamental right guaranteed by the Constitution under Articles 19(1) and 21 and these rights should not be violated.

· He further contended that it is essential to read down the provisions of section 5(2) of the Indian Telegraph Act to protect the right to privacy.

· He also contented that judicial scrutiny of the decisions should be made as the only procedural safeguard that could remove arbitrariness and unreasonableness.

ARGUMENTS FROM THE RESPONDENT SIDE:-

· Learned counsel for the respondent argued that removing Section 5(2) will affect public interest and security of the state.

· He further argued that there is no misuse of power by the Government as it can only be ordered by a specifically authorised officer appointed by the Government, under certain situations and after recording of the reasons for tapping of the phone.

· He also contended that the person whose phone has been tapped cannot be informed about the same because it could defeat the purpose for which the phone was tapped.

RELATED PROVISIONS:-

Ø Constitution of India:-

Article 19(1)(A): – (1) All citizens shall have the right

· to freedom of speech and expression;

Article 21: – Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law,

Ø The Indian Telegraph Act, 1885:-

Section 5(2): –

Power for Government to take possession of licensed telegraphs and to order interception of messages. (1) On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorized in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do, take temporary possession (for so long as the public emergency exists or the interest of the public safety requires the taking of such action) of any telegraph established, maintained or worked by any person licensed under this Act.

(2) On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorized in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order:

Provided that press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section.

Section 7(2)(b): –

Power to make rules for the conduct of telegraphs. —

(2) Rules under this section may provide for all or any of the following among other matters, that is to say: —

(b) the precautions to be taken for preventing the improper interception or disclosure of messages.

JUDGEMENT AND ITS ANALYSIS:-

The Supreme Court held that though there is no express provision of right to privacy in the Constitution of India but it is a part of right to life and personal liberty guaranteed under Article 21 which cannot be affected except by a procedure established by law. It could only be judged on a case-to-case basis that this right has been infringed or not. Therefore, telephone tapping will amount to infringement of right to privacy unless it is done in accordance with the procedure established by law. Honorable court held:-

“Telephone-Tapping is a serious invasion of an individual’s privacy. With advancements in sophisticated communication technologies, the right to have private telephone conversations in one's home or office is more vulnerable to misuse. While it is true that every government, even democratic ones, conducts some covert operations as part of its intelligence efforts, it is equally important to ensure that citizens' privacy rights are safeguarded from potential abuse by those in power.”

The Court stated that telephonic conversations in the privacy of one’s home or office without interference come under within the right to privacy. Telephonic conversations would be considered a citizen’s right to freedom of speech and expression under Article 19(1)(a) of the Constitution and these conversations can only be restricted through the grounds mentioned in Article 19(2).

The Commission's report highlighted that telephone tapping represents a significant invasion of privacy. It noted that, under current law, telephone tapping does not qualify as a tort because there is no general right to privacy recognized. The report suggested that while telephone tapping should generally be avoided, exceptions could be made for national security, criminal investigations, and public order situations.

The Court reviewed Section 5(2) of the Indian Telegraph Act and observed that it specifies the conditions under which the Government can issue interception orders. For such orders to be authorized, two conditions must be met: there must be a public emergency, or the orders must be issued for public safety by an officer appointed and authorized by the Government. The officer can only issue these orders when it is absolutely necessary, based on the following five grounds:

1. Sovereignty and integrity of India;

2. Security of the State;

3. Friendly relations with foreign States;

4. Public order; or

5. Preventing incitement to the commission of an offence.

And the orders can be passed by the officer only after recording of the reasons which should be in writing.

The Court stated that Section 5(2) cannot be declared unconstitutional but the two conditions and the five grounds under Section 5(2) should be followed while passing the interception orders. The Court further refused to impose judicial scrutiny as the single procedural measure before passing the interception orders and stated that this power is with the Central Government according to Section 7 of the Act.

Meanwhile, the Court laid certain guidelines in the interim period to remove unreasonableness and arbitrariness.

The guidelines stated by the Court are as follows:

1. Only the Home Secretary of the Central Government or of a State Government is empowered to issue the order of telephone tapping and in emergency only this power can be delegated.

2. The authority who is passing such orders must be satisfied that phone tapping was essential to obtain the information.

3. The order for interception will cease to have effect after two months from issuance of such order unless it is renewed and total time period for the operation of such order is six months.

4. The records should be maintained for the interception orders and the procedure followed for it.

5. Review committees is to be formed to check that the orders are in accordance with the law.

CONCLUSION:-

Through this case the Supreme Court ruled out that privacy of the citizen is fundamental right guaranteed by this Constitution. It cannot be infringed by the Government except under certain specific situations, Phone tapping also comes under infringement of privacy, Government can tap phones with utmost care and following the whole procedure safeguards and specified legal process and there should be just reason for tapping of the phones.

In my view the Supreme Court has taken decision for betterment of the citizens since privacy is also considered vital for an individual and this decision has also given a space to the Government to sought important information regarding the national security and maintenance of public order which is also of utmost important.