Author: ILIN SARASWAT (Advocate) Supreme Court of India, New Delhi (majorly practice in Hon’ble Supreme Court
“Independence of Judiciary is the independence of each and every Judge, so that they are independent of their superiors also”— Supreme Court of India.
The latest snooping and phone tapping allegations on the State are extremely serious and perilous in nature, specially the surveillance of Constitutional Authorities and a then working Judge of Supreme Court of India. The manner in which the allegations were made and that the cases listed in the Court of that particular Judge, the subsequent judgments thereafter in favour of the Government, casts a heavy apprehension on the noble principles of independence and impartiality of judiciary being compromised.
The Judiciary is the last and foremost institution for the public on whom the faith of a common man rests and can be considered equal to God. But the snooping surveillance on Judiciary and the resulting
disputed outcomes of the petitions delivered in favour of the Government has shaken the faith and of the public on the independence of our judicial system. Here we need to remember that the independence of Judiciary is one of the basic structure of our democracy and The Constitution of India.
The Teachers of Constitutional Law must be wondering aloud how they will teach about Basic Structure Theory anymore while explaining neutrality of Four Pillars of Democracy. This is the darkest spot on our democracy with direct allegations of snooping of a Supreme Court Judge for the first time in seven decades of Indian democratic history. It can not be dismissed completely that such rumours never floated in the corridors of Supreme Court or North Block in the past, but such innuendo were always hearsay in the nature.
Phone interception is a method of snooping, tapping, intercepting, listening and recording all the communication on the phone with the motive of getting information about all the activities. In United States of America and in many Western Countries it
is referred as “Wire Tapping”. The first ever incident of Wire Tapping or Telephone Tapping goes deep back to the 19th Century when in the decade of 1890s in United States this tapping or interception of calls was successfully materialised.
Phone tapping now mixed with snooping makes the whole process very deleterious for a citizen’s Right to Privacy. The tapping is allowed with official permission from the concerned government department, but in case of unofficial tapping and
snooping it is illegal and shall be referred as a gross crime.
In United States of America, a landmark Judgment in the case of Katz v/s United States 1967, the Supreme Court of America said that wire tapping and search requires a legal warrant to ensure its legitimacy.
The US further in coming years following this Judgment has established a separate act in this regard called “Foreign Intelligence Surveillance Act 1978” which ensures the issuance of legal warrants for such cases in the name of National Security.
Snooping Constitutional Authorities or a Judge or any law abiding common citizen of India compromises the features of our great democracy as well as our Constitutional provisions. This is very serious and Right To Privacy provided under Fundamental Rights should not only be strictly protected but a deep investigation into these charges should be examined by a Constitutional Bench of Supreme Court. Supreme Court of India has always positively emphasized on topic of privacy and in the
recent case of - Justice K.S. Puttaswamy vs. Union of India, 2017, where a 9 Judge Constitutional Bench delivered unanimous verdict while affirming that the Constitution of India guarantees to each individual a Fundamental Right to Privacy.
The Judgment highlighted the facts and the doctrinal foundation of the Right to Privacy in India rests on the trilogy of decisions in the cases of- M.P. Sharma v/s. Satish Chandra 1954,SC. Kharak Singh v/s. State of Uttar Pradesh 1962,SC. and Govind v/s State of Madhya Pradesh 1975,SC.
The Right to Privacy imposes on the Government a duty to protect the privacy of an individual on every cost, corresponding to the liability that is to be incurred by the State for intruding the Right to Life and Personal Liberty.
The Right to Life and Liberty are automatically inalienable adjunct to human existence and not some award granted by the State or any Court of Law, nor it is some creation of the Constitution. Constitution only protects this particular Right from the beginning till the end, no matter you have faith in it or not. No civilized state can contemplate an encroachment upon them without the authority of law.
In the said Judgment of Justice K.S. Puttaswamy vs. Union of India, 2017 Hon’ble Justice DY Chandrachud overruled the case ADM Jabalpur v/s, S.S. Shukla, adjudicated by his father Hon’ble Justice YV Chandrachud, to the extent that it held that the aforesaid rights may be surrendered in an emergency. So at any cost the Right to privacy can not be compromised.
The most importantly, in the case of People’s Union for Civil Liberties v. Union of India, Hon’ble Supreme Court of India extended the right to privacy to communications while considering the issue of Phone Tapping and held that “Phone tapping is a
serious invasion of an individual’s privacy.”
In the case of Smt. Selvi v. State of Karnataka 2010, Hon’ble Supreme Court acknowledged the distinction between bodily & physical privacy and mental privacy up to the mark of Western Countries’ level of broad democracy and further held that
subjecting a person to techniques such as Narco Analysis, Polygraph Examinations and the BEAP/Brain Electrical Activation Profile test without his or her consent strictly violates the subject’s mental privacy.
In India, the Government have the legal sanctity to intercept phones under section 5 (2) of Indian Telegraphic Act 1885. Institution tapping the phone needs to get the permission through a written application sighting the valid reason(s) for the need of interception with proof, from the Ministry of Home Affairs. After reasons proved valid the Ministry of Home Affairs can permit for the interception and tapping.
However, if the snooping and tapping are illegally done and it results in invasion of the Right to Privacy of a person then the person concerned can lodge a FIR in Police Station, whenever he/she comes to the knowledge of the illegal snooping on
him/her.
The person concerned can approach the Court of Law anytime as section 26 of Indian Telegraphic Act 1885, mentions about unlawful interception and punishment in such case.
Also, the aggrieved can lodge a complaint in case of unlawful and illegal tapping and snooping directly with National Human Rights Commission.
Author: ILIN SARASWAT (Advocate) Supreme Court of India, New Delhi (majorly practice in Hon’ble Supreme Court
of India only)
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