|COURT||Supreme Court of India|
|JUDGES/CORAM||Justice Kuldip Singh|
|DATE OF JUDGEMENT||18.12.1996|
The case marks a significant attempt undertaken by the Supreme Court to solve the problem of ever-growing telephone tapping incidents in the name of investigation and preventive measures. This judgment influenced the legislatures to design the subsequent surveillance laws to balance the right to privacy against the power of the state to conduct surveillance.
The facts of the case are as follows: People’s Union of Civil Liberties [PUCL] is a voluntary organization which filed a Public Interest Litigation [PIL] under Article 32 to bring into the notice of the Court of the gross violation of individual’s freedom being done by the State through telephone tapping. PUCL, the Petitioner, has challenged the constitutional validity of Section 5(2) of the Indian Telegraph Act, 1885, contending that the said provision is arbitrary in nature and allows indiscriminate telephone tapping.
The matter first came into limelight when Chandra Shekhar, in early 1990s publicly alleged the government that it was illegally tapping the telephones of 27 politicians, including his own. The allegation escalated quickly which demanded CBI inquiry. The CBI report revealed the amount of misuse of power done by the Government between 1980s to 1990s regimes. It also exposed the inadequate legal framework and procedural lapses that made such abuses of power possible – tapping was regularly carried out without proper authorization, persisted for longer periods than was legally permissible, and was often based on specious grounds. Thereby the matter reached the Court via PIL filed by the PUCL. The Department of Telecom filed a counter affidavit on behalf of the Union of India.
The main issues in the case were:
- Whether the citizens of India enjoy a fundamental right to privacy or not.
- Whether there are sufficient procedural safeguards to rule out arbitrary exercise of power of the State and authorized officers under the Act or not?
Contentions of the Parties
The Union of India contended that the allegation that the Government could misuse the power to tap phones is not correct as such tapping is done only under certain circumstances or situations such as National Emergency or in the interest of the Public, etc. and thus the respondents in the case urged the Court to record the reasons for tapping before it is resorted to. It further contended that the alleged provision of Indian Telegraph Act shall not be struck down as it will jeopardize public interest and State’s security. The respondent also pointed out that there are many safeguards places to ensure that misuse of power cannot take place. In spite of safeguards, if there is alleged misuse of the powers regarding tapping of telephones by any authorized officer, the aggrieved party could represent to the State Government/Central Government and suitable action could be taken as may be necessary.
Subsequently 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 thus the proper safeguards are to be laid down under section 5(2) of Indian Telegraph act to save it from going contradictory to the provisions of the Constitution. The petitioner contended that these safeguard machinery are to be installed through Court to eliminate the arbitrariness or unreasonableness of the provision which threatens to infringe the right to privacy.
Summary of court decision and judgment
On the question of the existence of a right to privacy, the Court first cited its 1962 decision in Kharak Singh vs. State of Uttar Pradesh in this case the state police rule allowed ‘domiciliary visits’ at petitioner’s house at night and it was held that such a rule has an adverse effect on individual’s right to privacy, and thus the Court in this case recognized a ‘Right to Privacy’ in Indian Law. The Court also relied on the judgment in R. Rajagopal vs. State of Tamil Nadu which elevated the right to privacy to Constitutional status by vindicating that Right to Privacy is inclusive of right to life and liberty guaranteed to the citizens under Article 21. The Court also expanded the notion of the right to privacy to include a right “to be let alone”, and to “safeguard the privacy of [a person], his family, marriage, procreation, motherhood, child-bearing and education among other matters”.
The Court in this case of PUCL evolved this notion of privacy to include personal communications, holding 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’”. Other than this the main issue was regarding the validity of section 5(2) of Indian Telegraph Act, 1885 which was prayed to be struck down by the petitioner but the Court refused to do so. Instead the Court guided the executives to adhere to only 2 out the 5 statutory preconditions provided under the Act, 1885 i.e. either the occurrence of any public emergency or the interest of public safety. Further the Court laid down five grounds under which such interception order is permitted; the grounds are:
Orders for telephone tapping may only be issued by the Home Secretary of the central government or a state government. In an emergency, this power may be delegated to an officer of the Home Department of the Central or state government, and a copy of the order must be sent to the concerned Review Committee within one week. The authority making the order must consider whether the information which is considered necessary to acquire could reasonably be acquired by other means.
Orders issued under the Indian Telegraph Act, 1885 shall be valid for two months from the date of issue. Review Committees shall be constituted consisting of Secretary-level officers at both the central and state levels. They may evaluate whether an interception order has been passed in compliance with the law, and if it has not, they may set it aside and direct the destruction of any copies of the intercepted communications.
The authority issuing the interception order must maintain records of:
- the intercepted communications;
- the extent to which material is disclosed;
- the number of persons to whom the material is disclosed and their identity;
- the extent to which the material is copied; and;
- The number of copies made.
Each of which must be destroyed as soon as its retention is no longer necessary. Thereby, the writ petition was disposed.
The PUCL case is still considered as a landmark case decided on the topic of Right to Privacy by the Supreme Court as this case paved the way of recognition of the individual’s Right to Privacy as a Fundamental right guaranteed under the Constitution. The judgment delivered in this case is highly respected as it prevented unrestricted use of power by the officials over telephone tapping while not curbing the executives powers all together thus creating a balance.
But in my opinion while creating this balance the Court has refrained themselves to inculcate judicial scrutiny as a check on executives’ actions in this case, as the Court declined to impose the procedural safeguard of prior judicial scrutiny, such as by the issuance of a warrants. The reason given by the Court in this case was that such judicial scrutiny was not provided for in any statute and thus the judiciary will refrain from operating excessive powers.
But the Court failed to note that the Code of Criminal Procedure, 1973 does provide for issuance of search warrant by a court to compel the production of a “document or other thing”, except in the case where the police station issues a written order to the person in possession of the information sought.
Nevertheless this case delivered a remarkable judgment and guidelines issued by the Court where eventually codified in Rule 419-A of the Indian Telegraph Rules, 1951 also the judgment influenced many other surveillance laws in India like Information Technology Act, 2000 and others.
However, in this digitalized age this judgment has proved to be ineffective as the unauthorized surveillance activities in practice today are miles ahead of what the case dealt with, thus we need stronger laws and scrutiny mechanisms to ensure that the Privacy of individuals is protected from being misused or used without one’s knowledge. And in my opinion the judicial scrutiny of surveillance laws and activities performed by the executives is the solution and such scrutiny shall in intend to promote transparency in the system.
 AIR 1963 SC 1295.
 (1994), 6 SCC 632.