This article is written by Abhishek Chaudhary Attri, from UPES, School of Law, Dehradun. The author has critically discussed the “Right to Privacy” and phone tapping in India along with the procedure established by the Hon’ble Supreme Court of India.
Article 21 of the Constitution of India has time and again been stressed as the very soul of fundamental rights by the Supreme Court of India. The inclusion of the extended meanings of the terms “life” and “liberty” have made this statute multi-dimensional and has given a broader aspect in interpreting it. The provision ensures that no person shall be deprived of life and personal liberty and an exception to be made only in the circumstances where the law provides the procedure for the same. The right to privacy in India under Article 21 has been derived from the right to life where it has been interpreted that life is much more significant than just mere existence and one such aspect is privacy. The question remains whether the right to privacy is absolute or there can be some interference allowed by the law with any safeguards.
Right to Privacy under Article 21 and phone tapping
As stated above, the term personal liberty includes but is not limited to the right to privacy, under which a citizen has the right to safeguard his privacy and including that of his family. The right to life as mentioned under Article 21 of the Constitution of India amounts to more than mere existence or survival. It shall include the meaningful aspects of life, which makes ones’ life worth living and privacy are considered in such aspects. In the case of K.S. Puttaswamy vs. Union of India, 2018, it was observed by the Hon’ble Supreme Court of India that being precious, life becomes worth living due to freedom which enables each individual to live life as they see fit, freedom is enabled by entrusting the individual with the decision on how to live life. They are continuously shaped by the social milieu in which individuals exist.
The duty of the state shall be to safeguard the ability to take these decisions and keep it in the autonomy of the individual as to dictate those decisions. “Life” within the meaning of Article 21 is not confined to the integrity of the physical body. The right comprehends one’s being in its fullest sense. That which facilitates the fulfilment of life is as much within the protection of the guarantee of life. In the context of the nature of the right to privacy, it was established by the Supreme court in the case of Gobind v. State Of Madhya Pradesh And Anr, 1975 that it is not absolute and though it is a fundamental right explicitly guaranteed it too subject to the conduct carry restriction on the basis of compelling public interest.
As far as the statute allows for the safety of the rights of an individual there is a procedure in place to invade such right in the most just fair and reasonable manner in the occurrence of public emergency via phone tapping. The procedure was laid down in the case of People’s Union for Civil Liberties v. Union of India (1996), where the Supreme court laid down exhaustive guidelines to regulate Section 5 of the Indian Telegraph Act, 1885 for the authorization of the interception of messages in specific circumstances.
An overview of PUCL v. Union of India
Facts of the case
The writ petition was filed by the People’s Union For Civil Liberties (PUCL) in the Hon’ble Supreme Court of India. PUCL is a voluntary organisation and it highlighted the incidents of telephone tapping while challenging the constitutional validity of Section 5(2) of the Indian Telegraph Act, 1885. The incidents were reported on the account of tapping telephones of politicians by the Central Bureau of Investigation (CBI). The investigation revealed that MTNL had major lapses in maintaining the record of the interception of telephones.
Apropos of 111 cases, the telephones were intercepted beyond the 180 days authorized by the government. The investigations also revealed that various authorised agencies were not maintaining the records and logbooks of the interception and the reason for the interception was also not mentioned properly.
The CBI report indicated that under the provisions of Section 5(2) Telegraph Act, 1885 the Central Government authorizes the interception to Intelligence Bureau, Director General Narcotics Control Bureau, Revenue Intelligence, Central Economic Intelligence Bureau and The Enforcement Directorate. In Section 5(2) of the Telegraph Act, 1885 it is precisely mentioned that in the event of a public emergency or the interest of public safety the central or state government can authorize the interception of messages. Such measures can only be taken when, the sovereignty and integrity of India, the security of the state, friendly relation with the foreign nation, prevention of incitement to the commission of an offence or public order is in jeopardy.
The contention of parties to the case
The allegation was denied by the Assistant Director-General, Department of Telecom by a counter-affidavit on the behalf of the Union of India. It mentioned that the party in power whether in the Centre or State Government could not misuse their power of taping the telephone as it could be done only under certain circumstances such as national emergency or in the interest of Public Safety. The reason to tap a telephone shall be mentioned before the tapping begins and if the same is communicated to the party whose telephone is being tapped it would defeat the whole purpose of the process as the work is very sensitive and secretive In the situation where the aggrieved party would allege the misuse of the tapping of the telephone by any authorised officer suitable action can be taken as necessary. Hence, Section 5(2) of the Indian Telegraph Act, 1885 should not be struck down.
Mr Rajinder Sachar, Senior advocate contended that the state’s right to privacy is a fundamental right guaranteed under Article 19(1) and Article 21 of the constitution, besides, to make Section 5(2) constitutional, changes have to be made, such as the substantive as well as the procedural laws were just, fair and reasonable. To make this possible, it is necessary to read down the said provision to provide adequate machinery to safeguard the right to privacy. The prior judicial sanction which shall be ex-parte in nature can eliminate the elements of arbitrariness and unreasonableness.
Further contentions were made that Section 5(2) lays down the conditions which dealt with the exercise of powers but how it is to be executed is not prescribed, hence, procedural safeguards should be established which will come into play before judicial scrutiny and save the act from the vice of arbitrariness. Section 7(2)(b) of the Telegraph Act, 1885 gives the power to the Central government to make appropriate changes in the rules consistent with this Act by the notification in the Official Gazette to the precautions to be taken for the prevention of improper interception or disclosure of messages.
Observations made by the court of law
Both sides had relied upon the judgement of Kharak Singh vs. the State of UP, 1962 where the connection between the terms “life” and “personal liberty” in the context of Article 21 was elaborately discussed by the Supreme Court of India. The seven-judge bench concluded in the case that Article 21 of the Constitution of India includes the right to privacy as the right to protection of life and personal liberty.
The counsels then elaborated upon the right to privacy as a broad and moralistic concept. The right to hold a telephone conversation in the privacy of one’s home or office falls under the concept of “right to privacy”. The conversation carried out in such places is more intimate or confidential and this has become a part of a person’s life. As more people carry such mobile devices in their pockets and conduct communication frequently, this becomes an important factor of a man’s private life. Right to privacy shall include telephone conversations in one’s home or office. Hence, telephone tapping would infringe on Article 21 of the constitution of India.
The sine qua non for the application for provision under Section 5(2) of the Indian Telegraph Act, 1885 is the occurrence of a public emergency or when in the interest of public safety. Unless these conditions have occurred, the central and state government authorities have no jurisdiction to resort to phone-tapping even though they are appeased by the fact that it is in the interest of the sovereignty and integrity of India. Neither of the two conditions mentioned is secretive and that these shall be apparent to a reasonable person. In a recent case of Vinit Kumar vs Central Bureau of Investigation, 2019, it was held by the Bombay High Court that the phone tapping was only allowed only when there is a case of public emergency or public safety other than that it will lead to infringement of the fundamental right to privacy. Thus the court quashed three orders passed by the Union Home Ministry, against a businessman who has allegedly been involved in a bribing case, allowing the investigating agencies to tap his phones.
As per the contentions made on behalf of the applicant and through the analysis of Section 5(2) of the Indian Telegraph Act, 1885. It is an undisputed fact that there are no rules framed under Section 7(2)(b) of the Act that has ensured the prevention of improper interception of telephones or disclosure of messages and there are no just and fair regulations to do so. The investigation report by CBI has revealed several lapses that were caused due to the absence of such regulations. Therefore, it becomes necessary for the court to provide procedural safeguards for the exercise of power under Section 5(2) of the Act to protect the right to privacy under Article 21.
The procedure established by the Supreme Court to prevent illegal phone tapping
To rule out the arbitrariness of Section 5(2) and to provide the just fair and reasonable procedure in the ambit of Section 7(2)(b) of the Telegraph Act, 1885 the Hon’ble Supreme Court of India had ordered and directed as under the order for telephone-tapping shall only be issued by the Home Secretary, Government of India and Home Secretaries of the State Governments.
In emergency matters, the power under Section 5(2) shall be delegated to the officer of the Home Department to the centre and state governments. The Review Committee shall be given a copy of the order within one week of passing. The order dealing with the interception shall take into account that whether the information which is considered necessary could be obtained by other means or not and the order shall require the addressed person to intercept the course of transmission through a public telecommunication system, such communications are described in the order.
The interceptions shall be of such communications which are sent from one or more addresses which are used for the transmission of communication for one specified person or set of premises described in the order. The order passed by any authority shall not exceed 2 months, if such authority considers continuing the order in the terms of Section 5(2) of the Act, then the order can be renewed, but the total period of operation of the order cannot exceed six months.
The following records shall be maintained by the authority which has issued the orders.
- The communications are intercepted.
- The extent to which the material is disclosed.
- The identity of the persons to whom the material is disclosed.
- The extent to which the material is copied and the number of copies made of the same.
The use of the intercepted material shall be limited to as per the provisions of Section 5 (2) of the Act. The copy of any interception of communications shall be destroyed as soon as it is no longer necessary. The Review Committee on the Central Government Level shall consist of the Cabinet Secretary, the Law Secretary and the Secretary of Telecommunication. While on the State Level it shall consist of Chief Secretary, Law Secretary and a member other than the Home Secretary, appointed by the State Government.
The Review Committee, within two months of passing the order by the concerned authority, shall investigate whether the concerned order falls under the ambit of Section 5(2) of the Act. If the investigation concludes that there has been the contravention of the provisions of Section 5(2), it shall set aside the order under the committee’s scrutiny and further, it shall direct the destruction of the copies of communication intercepted. If the committee concludes that there have not been any violations as per the provisions then it shall record the finding to that effect.
The Supreme Court of India in the case of R.M. Malkani v. The State of Maharashtra, (1973) delivered a controversial judgement when it accepted illegally obtained evidence for prosecution. In this case, the appellant Mr R.M. Malkani, a coroner of Mumbai was indulged in obtaining a bribe of Rs. 15000 from a doctor whom he threatened to falsely accuse in the case involving the negligent death of the patient. The doctor was not interested in paying the bribe and approached the Anti-Corruption Bureau of Police. The police officials traced the call between Malkhani and the doctor regarding the discussion of the amount to be paid and the location at which the transaction shall take place. All of this was done without any intimation of Malkhani and on the account of the statements made on the phone call, charges were framed against him.
The Court was of the view that this another person listening in on a conversation was a technical process and in respect of the admissibility of the evidence stated it as a “mechanical eavesdropping device”. The whole act of tracing and filing charges was deemed as legitimate on the basis that there was no element of compulsion or coercion in which case the act might be violated. The Court then conceivably realized that it was wrong and further added that this shall be used sparingly under proper direction and circumspection. It was decided that the evidence was to be held relevant as per Section 7 and Section 8 of the Indian Evidence Act, 1872.
However, in the case of Rayala M. Bhuvaneswari v. Nagaphamender Rayala, AIR 2008 AP 98, where the husband himself tapped his wife’s conversation, which she was making with her friends and parents was deemed to be illegal and this act was said to be infringing wife’s constitutional right to privacy. It was pointed out by the Supreme court that the husband has resorted to illegal means, breaking the trust between the husband and wife and making the institution of marriage redundant. The telephonic conversations are an important part of a person’s, this shall not be recorded by immoral means and even if the truth is revealed in the conversations the tapes become inadmissible in the courts as it was obtained unconstitutionally.
In a recent case of Toman Lal Sahu vs. State of Chattisgarh, 2021, where a police constable allegedly asked for the favour from a hardcore criminal through a telephonic conversation. The constable was then terminated from his services on the basis of this conversation without any departmental inquiry. Significantly this conversation was submitted as a CD to the court and the source was not disclosed, also the recorded conversation was not supplied to the petitioner. The Court was presented with a question of law that whether the telephonic conversation recorded illegally would form the basis of dismissal without the establishment of an inquiry. Observing closely, the guidelines held in the case of PUCL vs Union of India, the Court held that this act had infringed Article 21 of the Constitution of India and the source of telephonic conversation was not verified by any forensic expert thus the evidence cannot be held admissible under Section 65-B of Indian Evidence Act, 1872. The respondents, however, were authorized to conduct a departmental enquiry against the petitioner and give him a proper opportunity of hearing the petitioner and follow the rules established by the procedure.
The relation between the ‘right to privacy’ and ‘personal liberty’ was distinctly observed by the court of law, along with the necessities to tap communications of the individuals. The need of safeguarding the rights of the individuals and maintaining privacy is paramount but when it comes to public emergencies or safety in the public interest the procedure established by the court is to be followed while breaching the privacy of an individual and keeping it secretive because of the sensitive nature of the information gathered. The court has established a fair and just procedure to keep the checks and balances so that no misuse of power takes place.
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