Today, On 2nd July, The Madras High Court held that phone tapping is a breach of the fundamental right to privacy under Article 21 unless it follows a legally established procedure. The Court stressed such powers can’t be used for ordinary crimes.
The Madras High Court ruled that phone tapping violates the fundamental right to privacy unless justified by a legally established procedure.
Justice N. Anand Venkatesh noted that while Section 5(2) of the Indian Telegraph Act, 1885 allows for phone tapping during public emergencies or for public safety, this provision should not be misapplied to ordinary criminal investigations.
The Court stated,
“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,”
The ruling came in response to a challenge against a 2011 order from the Union Ministry of Home Affairs, which authorized the Central Bureau of Investigation (CBI) to tap the mobile phone of petitioner P. Kishore, then Managing Director of Everonn Education Limited.
The phone tapping was related to a CBI investigation initiated by an FIR filed in August 2011, where Kishore was named as an accused.
The FIR claimed that Andasu Ravinder, an IRS officer, demanded a Rs.50 lakh bribe from Kishore to help the company evade taxes, with the bribe allegedly routed through Uttam Bohra, a friend of Ravinder.
Following an investigation, the CBI intercepted Ravinder and Bohra near Ravinder’s residence and seized a carton containing Rs.50 lakh, although Kishore was not present at the scene, and no cash was recovered from him.
Kishore challenged the phone-tapping order, asserting that it infringed upon his fundamental right to privacy under Article 21, arguing that the necessary legal conditions for such surveillance namely a public emergency or threat to public safety were not met.
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He also claimed the government did not adhere to procedural safeguards outlined in Rule 419-A of the Telegraph Rules and relevant Supreme Court judgments, such as the People’s Union for Civil Liberties v. Union of India (PUCL case).
In defense, the Centre and CBI argued that the interception was essential for preventing and investigating corruption, which they deemed a public safety concern.
However, the Court dismissed this rationale, stating that a broad interpretation would undermine constitutional protections for the right to privacy.
The court Stated,
“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 pointed out that the phone-tapping order merely repeated the language of Section 5(2) without engaging with the specifics of the case, indicating a lack of genuine consideration.
The order emphasized,
“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 Court further clarified that regardless of the intention, phone tapping without a declared ‘public emergency’ or concern for ‘public safety’ cannot be justified under current law. It also noted that the intercepted evidence was not reviewed by a Review Committee as mandated by 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.”
Consequently, the Court cancelled the interception order from August 2011 and deemed all telephonic communications intercepted under it as invalid.
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However, it specified that this ruling would not affect any evidence the CBI may have gathered independently of the intercepted call records, which should be assessed by the trial court on its own merits.
Advocates Sharath Chandran and Rajagopal Vasudevan represented the petitioner, while Additional Solicitor General ARL Sundaresan, assisted by Advocate TV Krishnamachari, represented the Union.
Advocate K. Srinivasan appeared for the CBI.
Case Title: P Kishore v. The Secretary to Government
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