Bombay High Court
Vinit Kumar vs Central Burau Of Investigation ... on 22 October, 2019
Bench: Ranjit More
Sachin Digitally signed
by Sachin R.
Patil
R. Date:
2019.10.22 wp-2367 of 19(J).doc
Patil 17:24:53 +0530
IN THE COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 2367 OF 2019
Vinit Kumar
Age : 54 years, Occ : Business,
Residing at 35, Shreyas, 180,
Madam Cama Road,
Mumbai - 400 032. ..Petitioner.
Versus
1. Central Bureau of Investigation ]
Economic Offences Division, ]
Plot No. C-35A, "G" Block, ]
Bandra Kurla Complex, ]
Bandra (East), Mumbai, ]
PIN - 400 051. ]
]
2. Ministry of Home Affairs. ]
Government of India ]
Through ]
Secretary, North Block, ]
New Delhi - 110 001. ]
]
3. State of Maharashtra. ]
Through ]
Addl. Public Prosecutor, ]
PWD Building, High Court, Bombay, ]
Dr. Kane Road, Fort, Mumbai ]
PIN - 400032. ]
]
4. Union of India. ]
Through Ministry of Law & Justice. ]
Aaykar Bhavan, Mumbai. ]..Respondents.
Mr. Vikram Nankani, Senior Advocate with Dr. Sujay Kantawala i/b
Ishan Srivastava for the Petitioner.
Ms. Rebeca Gonsalvez for Respondent No. 1.
patilsr 1/ 37
wp-2367 of 19(J).doc
Mrs. A. S. Pai, APP for the Respondent-State.
Mrs. P. H. Kantharia for Respondent Nos. 2 and 4.
Coram : RANJIT MORE & N. J. JAMADAR, JJ.
Arguments concluded on : August 22, 2019.
Judgment pronounced on : October 22, 2019.
Judgment [Per Ranjit More] :
1. The petitioner has impugned before us the orders
dated 29th October, 2009, 18th December, 2009 and 24th
February, 2010, which directed interception of telephone calls by
respondent No.2 on the ground of being ultra vires of Section
5(2) of the Indian Telegraph Act, 1885 (for short "the Act"), non-
compliance of Rules made thereunder, and for being in violation
of the fundamental rights guaranteed under Part-III of the
Constitution of India. The petitioner's case is that they ought to
be quashed and intercepted messages obtained thereunder shall
be destroyed as directed by the Hon'ble Supreme Court in
People's Union for Civil Liberties (for short "the PUCL") v. Union of
India [(1997) 1 SCC 301] and as provided in Rule 419A(17)
introduced by G.S.R.193 of 1st March, 2007 (w.e.f. 12th March,
2007) The petitioner is also relying on a Nine Judge Constitution
Bench judgment in K.S. Puttaswamy v. Union of India [(2017) 10
SCC 1] for seeking enforcement of his fundamental rights under
patilsr 2/ 37
wp-2367 of 19(J).doc
Articles 14 and 21 of the Constitution of India.
2. As per petitioner, the alleged illegally intercepted
telephonic recordings contained in the charge-sheet and all
material collected on the basis of such alleged illegally
intercepted telephonic recordings ought to be set at naught. The
petitioner submits that it is settled law that if the foundation is
removed, the structure falls and that the legal maxim "sublato
fundamento cadit opus" squarely applies in the instant case.
3. Section 5 of the 1885 Act deals with the power of the
Government to take possession of licensed telegraphs and to
order interception of messages. Sub-section (2) of Section 5, for
our purpose is relevant, which reads as follows:
"5.(1)
(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 authorised 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
patilsr 3/ 37
wp-2367 of 19(J).doc
intercepted or detained, or shall be disclosed to the
Government making the order or an officer thereof
mentioned in the order:
Provided that the 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.]"
[Underlined emphasis supplied]
4. In PUCL(supra), a two Judge Bench of the Apex Court
has observed as follows :
18. The right to privacy-by itself-has not been
identified under the Constitution. As a concept it may be
too broad and moralistic to define it judicially. Whether
right to privacy can be claimed or has been infringed in
a given case would depend on the facts of the said
case. But 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".
Conversations on the telephone are often of an intimate
and confidential character. Telephone-conversation is a
part of modern man's life. It is considered so important
that more and more people are carrying mobile
telephone instruments in their pockets. Telephone
conversation is an important facet of a man's private
life. Right to privacy would certainly include telephone-
conversation in the privacy of one's home or office.
Telephone-tapping would, thus, infract Article 21 of the
Constitution of India unless it is permitted under the
procedure established by law.
28. Section 5(2) of the Act permits the interception
of messages in accordance with the provisions of the
said Section. "Occurrence of any public emergency" or
"in the interest of public safety" are the sine qua non.
for the application of the provisions of Section 5(2) of
the Act. Unless a public emergency has occurred or the
patilsr 4/ 37
wp-2367 of 19(J).doc
interest of public safety demands, the authorities have
no jurisdiction to exercise the powers under the said
Section. Public emergency would mean the prevailing of
a sudden condition or state of affairs affecting the
people at large calling for immediate action. The
expression "public safety" means the state or condition
of freedom from danger or risk for the people at large.
When either of these two conditions are not in
existence, the Central Government or a State
Government or the authorised officer cannot resort to
telephone tapping even though there is satisfaction that
it is necessary or expedient so to do in the interests of
sovereignty and integrity of India etc. In other words,
even if the Central Government is satisfied that it is
necessary or expedient so to do in the interest of the
sovereignty and integrity of India or the security of the
State or friendly relations with sovereign States or
public order or for preventing incitement to the
commission of an offence, it cannot intercept the
messages or resort to telephone tapping unless a public
emergency has occurred or the interest of public safety
or the existence of the interest of public safety requires.
Neither the occurrence of public emergency nor the
interest of public safety are secretive conditions or
situations. Either of the situations would be apparent to
a reasonable person.
29. The first step under Section 5(2) of the Act,
therefore, is the occurrence of any public emergency of
the existence of a public-safety interest. Thereafter the
competent authority under Section 5(2) of the Act is
empowered to pass an order of interception after
recording its satisfaction that it is necessary or
expedient so to do in the interest of (i) sovereignty and
integrity of India, (ii) the security of the State, (iii)
friendly relations with foreign States, (iv) public order or
(v) for preventing incitement to the commission of an
offence. When any of the five situations mentioned
above to the satisfaction of the competent authority
require then the said authority may pass the order for
interception of messages by recording reasons in writing
for doing so.
patilsr 5/ 37
wp-2367 of 19(J).doc
30. The above analysis of Section 5(2) of the Act
shows that so far the power to intercept
messages/conversations is concerned the Section
clearly lays-down the situations/conditions under which
it can be exercised. But the substantive law as laid
down in Section 5(2) of the Act must have procedural
backing so that the exercise of power is fair and
reasonable. The said procedure itself must be just, fair
and reasonable. It has been settled by this Court in
Maneka Gandhi v. Union of India , that "procedure which
deals with the modalities of regulating, restricting or
even rejecting a fundamental right falling within Article
21 has to be fair, not foolish, carefully designed to
effectuate, not to subvert, the substantive right itself".
Thus, understood, "procedure" must rule out anything
arbitrary, freakish or bizarre. A valuable constitutional
right can be canalised only by civilised processes".
34. .............The power to make rules under Section
7 of the Act has been there for over a century but the
Central Government has not thought it proper to frame
the necessary rules despite severe criticism of the
manner in which the power under Section 5(2) has been
exercised. It is entirely for the Central Government to
make rules on the subject but till the time it is done the
right to privacy of an individual has to be safeguarded.
In order to rule-out arbitrariness in the exercise of power
under Section 5(2) of the Act and till the time the
Central Government lays down just, fair and reasonable
procedure under Section 7(2)(b) of the Act, it is
necessary to lay down procedural safeguards for the
exercise of power under Section 5(2) of the Act so that
the right to privacy of a person is protected.
[Emphasis supplied]
5. Pursuant to the above observations, the Hon'ble
Supreme Court in PUCL (Supra) was pleased to order and direct
inter alia the following as procedural safeguards :
"35- We therefore direct as under....
patilsr 6/ 37
wp-2367 of 19(J).doc
9. There shall be a Review Committee consisting
of Cabinet Secretary, the Law Secretary and the
Secretary, Telecommunication at the level of the Central
Government. The Review Committee at the State level
shall consist of Chief Secretary, Law Secretary and
another member, other than the Home Secretary,
appointed by the State Government.
(a) The Committee shall on its own, within two
months of the passing of the order by the authority
concerned, investigate whether there is or has been a
relevant order under Section 5(2) of the Act. Where there
is or has been an order whether there has been any
contravention of the provisions of Section 5(2) of the Act.
(b) If on an investigation the Committee
concludes that there has been a contravention of the
provisions of Section 5(2) of the Act, it shall set aside the
order under scrutiny of the Committee. It shall further
direct the destruction of the copies of the intercepted
material.
(c) If on investigation, the Committee comes to
the conclusion that there has been no contravention of
the provisions of Section 5(2) of the Act, it shall record the
finding to that effect.
[Emphasis supplied]
6. The Hon'ble Supreme Court in PUCL (Supra) thus
categorically held and directed that :-
I. Right to privacy would certainly include telephonic
conversation in the privacy of one's house or office.
Telephone tapping would, thus, infract Article 21 of the
Constitution of India unless it is permitted under the
patilsr 7/ 37
wp-2367 of 19(J).doc
procedure established by law.
II. "Occurrence of public emergency" or "in the interest of
public safety" are the "sine qua non" for the application of
the provisions of Section 5(2) of the 1885 Act, and without
them, the authorities have no jurisdiction to exercise the
powers under the said Section to take resort to telephone
tapping even though there is satisfaction that it is
necessary or expedient so to do in the interest of
sovereignty and integrity of India etc.
III. The expression "public safety" means the State or Condition
of freedom from danger or risk for the people at large.
IV. Neither the occurrence of public emergency nor the interest
of public safety are secretive conditions or situations.
Either of the situation would be apparent to a reasonable
person.
V. The substantive law as laid down in Section 5(2) of the Act
must have procedural safeguards for this valuable
constitutional right as settled in Maneka Gandhi versus
Union of India, that "procedure which deals with the
modalities of regulating, restricting or even rejecting a
fundamental right falling within Article 21 of the
patilsr 8/ 37
wp-2367 of 19(J).doc
Constitution of India has to be fair, not foolish, carefully
designed to effectuate, not to subvert, the substantive right
itself", and the 'procedure' must rule out any thing
arbitrary, freakish and bizarre.
VI.To safeguard and protect the fundamental right to privacy,
and in order to rule out arbitrariness in the exercise of
power under Section 5(2) of the Act, the Hon'ble Supreme
Court laid down procedural safeguards for the exercise of
power under Section 5(2) of the Act and inter alia directed
that there shall be a Review Committee, which shall on its
own, within two months of the passing of the order by the
authority concerned, investigate, whether there has been
any contravention of the provisions of Section 5(2) of the
Act.
VII. Not only this, the Hon'ble Supreme Court further directed
that if on an investigation, the Committee concludes that
there has been a contravention of the provisions of Section
5(2) of the Act, it shall set-aside the order under scrutiny of
the committee, and shall further direct the destruction of the
copies of the intercepted material.
VIII. The Hon'ble Supreme Court further directed that if on
patilsr 9/ 37
wp-2367 of 19(J).doc
investigation, the Committee comes to the conclusion that
there has been no contravention of the provisions of Section
5(2) of the Act, it shall record the finding to that effect.
7. These directions not only forge procedural safeguards
into the matters of infringement of right to privacy, but also
provide for a just and reasonable procedure. These directions
also provide procedural guarantee against the abuse of any
illegal interference by the guaranteed destruction of the copies of
the intercepted material, in a case where pre-requisite for
invoking Section 5(2) i.e. "occurrence of any public emergency"
or "in the interest of public safety" is non- existent. Needless to
say that the aforesaid directions are binding on us in view of
Article 141 and enforceable through India under Article 142 of the
Constitution of India.
8. The proposition that illegal tapping of telephone
conversation violates right to privacy is now accepted and
reinforced as guaranteed fundamental right under Article 21 of
the Constitution of India, by a nine Judge Constitution Bench
patilsr 10/ 37
wp-2367 of 19(J).doc
decision in K. S. Puttaswamy versus Union of India [(2017) 10
SCC 1], by overruling the earlier Constitution Bench judgments,
which did not consider right to privacy as fundamental rights,
analogues to the American Fourth Amendment, viz. M. P. Sharma
versus Satish Chandra [AIR 1954 SC 300] , or held that invasion of
privacy is not an infringement of fundamental right guaranteed
by Part III of the Constitution viz. Kharak Singh [AIR 1963 SC
1295]. It has now been held by the Constitution Bench in K. S.
Puttaswamy (supra) that the right to privacy is protected by the
Constitution as an intrinsic part of the right to life and personal
liberty under Article 21 of the Constitution of India and as a part
of the freedom guaranteed by Part-III of the Constitution of India.
9. Moreover, the view taken in PUCL's case (supra) was
affirmed by the said nine Judge Bench in K. S. Puttaswamy
(supra) with following observations:
"68. In a decision of a Bench of two judges of this Court in
PUCL, the Court dealt with telephone tapping. The petitioner
challenged the constitutional validity of Section 5(2) of the
Indian Telegraph Act, 1885 and urged in the alternative for
adopting procedural safeguards to curb arbitrary acts of
telephone tapping.
69............. Telephone conversations were construed to be an
patilsr 11/ 37
wp-2367 of 19(J).doc
important ingredient of privacy and the tapping of such
conversations was held to infringe Article 21, unless permitted
by 'procedure established by law' . .
The Court also held that telephone tapping infringes the
guarantee of free speech and expression under Article 19(1)(a)
unless authorized by Article 19(2). The judgment relied on the
protection of privacy under Article 17 of the International
Covenant on Civil and Political Rights (and a similar guarantee
under Article 12 of the Universal Declaration of Human Rights)
which, in its view, must be an interpretative tool for construing
the provisions of the Constitution. Article 21, in the view of the
Court, has to be interpreted in conformity with international law.
In the absence of rules providing for the precautions to be
adopted for preventing improper interception and/or disclosure
of messages, the fundamental rights under Articles 19(1)(a) and
21 could not be safeguarded. But the Court was not inclined to
require prior judicial scrutiny before intercepting telephone
conversations. The Court ruled that it would be necessary to lay
down procedural safeguards for the protection of the right to
privacy of a person until Parliament intervened by framing rules
under Section 7 of the Telegraph Act. The Court accordingly
framed guidelines to be adopted in all cases envisaging
telephone tapping.
70. The need to read the fundamental constitutional
guarantees with a purpose illuminated by India's commitment to
the international regime of human rights' protection also
weighed in the decision. Section 5(2) of the Telegraph Act was to
be regulated by rules framed by the Government to render the
modalities of telephone tapping fair, just and reasonable under
Article 21. The importance which the Court ascribes to privacy is
evident from the fact that it did not await the eventual
formulation of rules by Parliament and prescribed that in the
meantime, certain procedural safeguards which it envisaged
should be put into place.
.....
512. Similarly, in PUCL v. Union of India, (1997) 1 SCC 301, this Court
dealt with telephone tapping as follows: ......
"17. We have, therefore, no hesitation in holding that right to
privacy is a part of the right to "life" and "personal liberty"
enshrined under Article 21 of the Constitution. Once the facts
in a given case constitute a right to privacy, Article 21 is
patilsr 12/ 37
wp-2367 of 19(J).doc
attracted. The said right cannot be curtailed "except
according to procedure established by law".
18. The right to privacy--by itself--has not been identified
under the Constitution. As a concept it may be too broad
and moralistic to define it judicially. Whether right to privacy
can be claimed or has been infringed in a given case would
depend on the facts of the said case. But 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". Conversations on the telephone are often of an
intimate and confidential character. Telephone conversation
is a part of modern man's life. It is considered so important
that more and more people are carrying mobile telephone
instruments in their pockets. Telephone conversation is an
important facet of a man's private life. Right to privacy
would certainly include telephone conversation in the
privacy of one's home or office. Telephone-tapping would,
thus, infract Article 21 of the Constitution of India unless it is
permitted under the procedure established by law."
The Court then went on to apply Article 17 of the
International Covenant on Civil and Political Rights, 1966
which recognizes the right to privacy and also referred to
Article 12 of the Universal Declaration of Human Rights,
1948 which is in the same terms. It then imported these
international law concepts to interpret Article 21 in
accordance with these concepts."
10. Thus, now the judgment in PUCL (supra) has to
be seen in the light of observations contained in the nine Judge
Constitution Bench judgment. The nine judge judgment also
noticed the earlier judgments in R. M. Malkani v. State of
Maharashtra (1973) 1 SCC 471 and observed as under :
"51. Among the early decisions of this Court following Kharak Singh
was R M Malkani v State of Maharashtra. In that case, this Court held
that Section 25 of the Indian Telegraph Act, 1885 was not violated
patilsr 13/ 37
wp-2367 of 19(J).doc
because :(R.M.Malkani Case, SCC p. 476, para 20)
"20. Where a person talking on the telephone allows
another person to record it or to hear it, it cannot be said
that the other person who is allowed to do so is damaging,
removing, tampering, touching machinery battery line or
post for intercepting or acquainting himself with the
contents of any message. There was no element of coercion
or compulsion in attaching the tape recorder to the
telephone."
This Court followed the same line of reasoning as it had in Kharak
Singh while rejecting a privacy based challenge under Article 21.
Significantly, the Court observed that : (R.M.Malkani Case, SCC p.
479, para 31)
"31. Article 21 was invoked by submitting that the privacy
of the appellant's conversation was invaded. Article 21
contemplates procedure established by law with regard to
deprivation of life or personal liberty. The telephone
conversation of an innocent citizen will be protected by
Courts against wrongful or high handed interference by
tapping the conversation. The protection is not for the
guilty citizen against the efforts of the police to vindicate
the law and prevent corruption of public servants. It must
not be understood that the Court will tolerate safeguards
for the protection of the citizen to be imperilled by
permitting the police to proceed by unlawful or irregular
methods."
In other words, it was the targeted and specific nature of the
interception which weighed with the Court, the telephone tapping
being directed at a guilty person. Hence the Court ruled that the
telephone conversation of an innocent citizen will be protected
against wrongful interference by wiretapping.
[Emphasis supplied]
11. Evidently, the nine Judge Bench was of the view that
the judgment in R.M. Malkani (supra) follows the same line of
reasoning as it held in Kharak Singh (supra), as attaching tape
recorder to the telephone was not considered as invasion of
fundamental right to privacy under Article 21 of the Constitution
patilsr 14/ 37
wp-2367 of 19(J).doc
of India. Kharak Singh (supra) has now been overruled.
The 9 Judge Constitution Bench further held that :
"265. But the important point to note is that when a right is
conferred with an entrenched constitutional status in Part III, it
provides a touchstone on which the validity of executive decision
making can be assessed and the validity of law can be
determined by judicial review.
313. Privacy has been held to be an intrinsic element of the
right to life and personal liberty under Article 21 and as a
constitutional value which is embodied in the fundamental
freedoms embedded in Part III of the Constitution. Like the right to
life and liberty, privacy is not absolute. The limitations which
operate on the right to life and personal liberty would operate on
the right to privacy. Any curtailment or deprivation of that right
would have to take place under a regime of law. The procedure
established by law must be fair, just and reasonable. The law
which provides for the curtailment of the right must also be
subject to constitutional safeguards.
317. .......... The first part of the decision in Kharak Singh which
invalidated domiciliary visits at night on the ground that they
violated ordered liberty is an implicit recognition of the right to
privacy. The second part of the decision, however, which holds
that the right to privacy is not a guaranteed right under our
Constitution, is not reflective of the correct position. Similarly,
Kharak Singh's reliance upon the decision of the majority in
Gopalan is not reflective of the correct position in view of the
decisions in Cooper and in Maneka. Kharak Singh to the extent
that it holds that the right to privacy is not protected under the
Indian Constitution is overruled.
325. Like other rights which form part of the fundamental
freedoms protected by Part III, including the right to life and
personal liberty under Article 21, privacy is not an absolute right.
A law which encroaches upon privacy will have to withstand the
touchstone of permissible restrictions on fundamental rights. In
the context of Article 21 an invasion of privacy must be justified
on the basis of a law which stipulates a procedure which is fair,
just and reasonable. The law must also be valid with reference to
the encroachment on life and personal liberty under Article 21. An
invasion of life or personal liberty must meet the three-fold
requirement of (i) legality, which postulates the existence of law;
patilsr 15/ 37
wp-2367 of 19(J).doc
(ii) need, defined in terms of a legitimate state aim; and (iii)
proportionality which ensures a rational nexus between the
objects and the means adopted to achieve them.
...
428.2 The right to privacy is inextricably bound up with all
exercises of human liberty - both as it is specifically enumerated
across Part III, and as it is guaranteed in the residue under Article
21. It is distributed across the various articles in Part III and,
mutatis mutandis, takes the form of whichever of their enjoyment
its violation curtails.
428.3 Any interference with privacy by an entity covered by
Article 12's description of the 'state' must satisfy the tests
applicable to whichever one or more of the Part III freedoms the
interference affects.
525. It is clear that Article 21, more than any of the
other Articles in the fundamental rights chapter, reflects each of
these constitutional values in full, and is to be read in consonance
with these values and with the international covenants that we
have referred to. In the ultimate analysis, the fundamental right of
privacy, which has so many developing facets, can only be
developed on a case to case basis. Depending upon the particular
facet that is relied upon, either Article 21 by itself or in
conjunction with other fundamental rights would get attracted.
526. But this is not to say that such a right is absolute.
This right is subject to reasonable regulations made by the State
to protect legitimate State interests or public interest. However,
when it comes to restrictions on this right, the drill of various
Articles to which the right relates must be scrupulously followed.
For example, if the restraint on privacy is over fundamental
personal choices that an individual is to make, State action can be
restrained under Article 21 read with Article 14 if it is arbitrary and
unreasonable; and under Article 21 read with Article 19(1) (a) only
if it relates to the subjects mentioned in Article 19(2) and the tests
laid down by this Court for such legislation or subordinate
legislation to pass muster under the said Article. Each of the tests
evolved by this Court, qua legislation or executive action, under
Article 21 read with Article 14; or Article 21 read with Article 19(1)
(a) in the aforesaid examples must be met in order that State
action pass muster. In the ultimate analysis, the balancing act that
is to be carried out between individual, societal and State interests
must be left to the training and expertise of the judicial mind.
patilsr 16/ 37
wp-2367 of 19(J).doc
568. Similarly, I also hold that the "right to privacy" has
multiple facets, and, therefore, the same has to go through a
process of case-to-case development as and when any citizen
raises his grievance complaining of infringement of his alleged
right in accordance with law.
578. It is not India alone, but the world that recognises the right of
privacy as a basic human right. The Universal Declaration of
Human Rights to which India is a signatory, recognises privacy as
an international human right. The importance of this right to
privacy cannot be diluted and the significance of this is that the
legal conundrum was debated and is to be settled in the present
reference by a nine-Judges Constitution Bench.
Test : Principle of proportionality and legitimacy
638. The concerns expressed on behalf of the petitioners arising
from the possibility of the State infringing the right to privacy can
be met by the test suggested for limiting the discretion of the
State:
" (i) The action must be sanctioned by law;
(ii) The proposed action must be necessary in a
democratic society for a legitimate aim;
(iii) The extent of such interference must be
proportionate to the need for such interference;
(iv) There must be procedural guarantees against
abuse of such interference."
643. The aforesaid aspect has been referred to for purposes
that the concerns about privacy have been left unattended for
quite some time and thus an infringement of the right of privacy
cannot be left to be formulated by the legislature. It is a primal
natural right which is only being recognized as a fundamental right
falling in part III of the Constitution of India.
650. Let the right of privacy, an inherent right, be
unequivocally a fundamental right embedded in part-III of the
Constitution of India, but subject to the restrictions specified,
relatable to that part. This is the call of today. The old order
changeth yielding place to new.
652. The reference is disposed of in the following terms:
652.1. The decision in M P Sharma which holds that the right to
patilsr 17/ 37
wp-2367 of 19(J).doc
privacy is not protected by the Constitution stands over-ruled;
652.2. The decision in Kharak Singh to the extent that it holds that
the right to privacy is not protected by the Constitution stands
over-ruled;
653.3. The right to privacy is protected as an intrinsic part of the
right to life and personal liberty under Article 21 and as a part of
the freedoms guaranteed by Part III of the Constitution.
653.4. Decisions subsequent to Kharak Singh which have
enunciated the position in (iii) above lay down the correct position
in law.
12. In view of the aforesaid clear and emphatic
pronunciation of law on the subject by the Nine Judge
Constitution Bench in K. S. Puttaswami (supra), it is no longer
res-integra that :-
(a) The right to privacy is recognised by the Nine Judge
Bench as inherent fundamental right having protection as
an intrinsic part of the right to life and personal liberty
under Article 21 and as a part of the freedom guaranteed
by Part III of the Constitution which is subject to specified
restrictions;
(b) Any infringement of the right to privacy by State
Authorities will have to meet the following four tests based
on the "Principle of proportionality and legitimacy" :
1. The action must be sanctioned by law;
patilsr 18/ 37
wp-2367 of 19(J).doc
2. The proposed action must be necessary in a democratic
society for a legitimate aim;
3. The extent of such interference must be proportionate to
the need for such interference;
4. There must be procedural guarantees against abuse of
such interference.
(c) All earlier judgments suggesting to the contrary, are no
longer binding precedents. The matters of infraction of the
fundamental right to privacy would now have to necessarily
satisfy the aforesaid tests, and cannot be dealt with on the basis
of the overruled judgments in M.P.Sharma (supra) or Kharak
Singh (supra) or based thereon or on the same line of reasoning
like R. M. Malkani (supra).
13. It is at this stage, it is pertinent to note that directions
contained in PUCL (supra) are in consonance with the aforesaid 4
tests.
14. After the judgment in PUCL (supra) and before the
judgment in K.S.Puttaswamy (supra), Rules were also framed by
the Central Government. Relevant Rules introduced by G.S.R.
patilsr 19/ 37
wp-2367 of 19(J).doc
193(4) dated 1st March, 2007 (w.e.f. 12th March, 2007) read as
follows :
"419. Interception or monitoring of telephone
messages.- (1) It shall be lawful for the Telegraph
Authority to monitor or intercept a message or
messages transmitted through telephone, for the
purpose of verification of any violation of these rule or
for the maintenance of the equipment.
419-A. .........
(2) Any order issued by the competent authority
under sub-rule (1) shall contain reasons for such
direction and a copy of such order shall be forwarded
to the concerned Review Committee within a period of
seven working days.
(16) The Central Government and the State
Government, as the case may be, shall constitute a
Review Committee. The Review Committee to be
constituted by the Central Government shall consist
of the following, namely:
(a) Cabinet Secretary -- Chairman
(b) Secretary to the Government of India Incharge,
Legal Affairs - Member
(c) Secretary to the Government of India, Department
of Telecommunications -- Member
The Review Committee to be constituted by a State
Government shall consist of the following, namely:
(a) Chief Secretary -- Chairman
(b) Secretary Law/Legal Remembrancer Incharge,
Legal Affairs -- Member
(c) Secretary to the State Government (other than the
Home Secretary)-- Member
(17) The Review Committee shall meet at least
once in two months and record its findings whether
the directions issued under sub-rule (1) are in
patilsr 20/ 37
wp-2367 of 19(J).doc
accordance with the provisions of sub-section (2) of
Section 5 of the said Act. When the Review
Committee is of the opinion that the directions are not
in accordance with the provisions referred to above it
may set aside the directions and orders for
destruction of the copies of the intercepted message
or class of messages.
(18) Records pertaining to such directions for
interception and of intercepted messages shall be
destroyed by the relevant competent authority and
the authorized security and Law Enforcement
Agencies every six months unless these are, or likely
to be, required for functional requirements."
15. The petitioner before us is a businessman and is
accused No.2 in Special CBI Case No.99 of 2011 arising out of FIR
No.RC. 0682010003 of 11th April, 2011, lodged by CBI. In brief,
the case of CBI alleges that the petitioner is a bribe-giver, who
gave a bribe of Rs.10,00,000/- to accused No.1(Public Servant-
Bank Official) for getting certain credit related favour. We are not
going into the merits or otherwise of the allegations levelled by
CBI. The same can be assailed by the petitioner in his discharge
application before the Trial Court.
16. We are of the view that as per Section 5(2) of the Act,
an order for interception can be issued on either the occurrence
of any public emergency or in the interest of the public safety.
patilsr 21/ 37
wp-2367 of 19(J).doc
The impugned three interception orders were issued allegedly for
the reason of 'public safety'. As held in PUCL (supra), unless a
public emergency has occurred or the interest of public safety
demands, the authorities have no jurisdiction to exercise the
powers under the said section. The expression "Public Safety" as
held in PUCL (supra) means the state or condition of freedom
from danger or risk for the people at large. When either of two
conditions are not in existence, it was impermissible to take
resort to telephone tapping.
17. The Hon'ble Supreme Court in PUCL case (supra) has
observed that neither the occurrence of public emergency nor
the interest of public safety are secretive conditions or situations.
Either of the situations would be apparent to the reasonable
person.
18. Even at this stage, from the affidavits filed by the
Respondents or the charge-sheet, the Respondents could not
justify any ingredients of risk to the people at large or interest of
the public safety, for having taken resort to the telephonic
tapping by invading the right to privacy. Neither from the
patilsr 22/ 37
wp-2367 of 19(J).doc
impugned orders nor from the record any situation showing
interest of public safety is borne out.
19. We are satisfied that in peculiar fact of the instant
case, the impugned three interception orders neither have
sanction of law nor issued for legitimate aim, as sought to be
suggested. The impugned three interception orders could not
satisfy the test of "Principles of proportionality and legitimacy"
as laid down by the nine judges' constitution bench decision in K.
T. Puttaswamy (supra). We, therefore, have no hesitation in
holding that all three impugned orders are liable to be set aside.
Accordingly, we quash and set aside the same.
20. Having held so, the next question arises is as to
whether any directions for destroying the intercepted messages
are warranted in a particular case or the instant case. The
answer to the said issue would lie in ascertaining whether
following directions contained in PUCL case (supra) which are
now upheld by the constitution bench decision in K. T.
Puttaswamy (supra) are mandatory :
patilsr 23/ 37
wp-2367 of 19(J).doc
"35. We, therefore, order and direct as under :-
9. There shall be a Review Committee consisting
of Cabinet Secretary, the Law Secretary and the
Secretary, Telecommunication at the level of the
Central Government. The Review Committee at the
State level shall consist of Chief Secretary, Law
Secretary and another member, other than the Home
Secretary, appointed by the State Government.
(a) .......
(b) If on an investigation the Committee
concludes that there has been a contravention of the
provisions of Section 5(2) of the Act, it shall set aside
the order under scrutiny of the Committee. It shall
further direct the destruction of the copies of the
intercepted material."
21. We find that there is no scope to presume that
aforesaid directions are not mandatory. It is an admitted position
that Rule 419(A)(17) which provides for destruction of intercepted
messages also adopt the said directions. We can neither permit
the Respondents to continue to ignore the directions of the
Hon'ble Apex Court nor can we ignore the same. Having held
that the impugned interception orders have been issued in
contravention of the provisions of section 5(2) of the Act, we
have no option but to further direct the destruction of intercepted
messages.
22. There is another aspect which has been argued. We
were shown that CBI has taken diverse stands in various
patilsr 24/ 37
wp-2367 of 19(J).doc
proceedings before the trial Court from time to time on the issue
of compliance of rules in response to the applications made by
the Petitioner.
23. In reply dated 27th January 2016 filed by the CBI before
the trial Court, it was contended as follows :
"3. That the Applicant accused Shri. Vinit
Kumar has filed the Miscellaneous Applications
before this Hon'ble Court for providing certified
copy of the prior approval of the review
committee under Rule 419(A) of Indian Telegraph
Rule, 1951.
4. That, the said approvals under Rule 419(A)
of the Indian Telegraph Rule, 1951 has been filed
along with the charge sheet filed before this
Hon'ble Court vide Dd-4, D-5 and D-6 and the
same has been supplied to all the accused
persons along with the charge sheet."
24. In its additional reply dated 29th August 2016, the CBI
has further contended as under :
"5. It is humbly submitted that, the sanction
issued by the Home Secretary Government of
India under Telegraph Rule 1951 for intercepting
the Call Data will be reviewed once in 2 months
after the approval by the Review Committee of
Telegraph Authority and the approval granted by
the Home Secretary will be reviewed and if the
said approval is in accordance and no
discrepancies are found, Review Committee will
not issue any orders. And if the approval is given
by the Home Secretary and not in accordance and
if any discrepancies are found, then the Review
Committee shall issue the orders to the Home
Secretary, Government of India.
patilsr 25/ 37
wp-2367 of 19(J).doc
6. That, it is ascertained that, once the
permission is granted by the Home Secretary,
Government of India under Telegraph Rule 1951,
the Review Committee will issue their approval
only to the Home Secretary, Government of India
and not to CBI or any other Agencies."
25. Following observations are made In the order dated
18th November 2015 passed by the trial Court :
"22. .... SPP has submitted that CBI have
obtain approval, it will be produce at the time of
evidence."
26. On behalf of CBI, one Ashok Prasad, Inspector of
Police, CBI has filed an affidavit dated 10 th July 2019 opposing this
petition, wherein following averments are made :
"25. ...... I say that the CBI EOB was never,
an is not at present in possession of any order of
the Review Committee as aforesaid. The CBI EOB is
not aware of whether any such order was ever
passed by the Central Review Committee.
27. ....... The CBI EOW never was, and is
not, in possession of any "approval of the Review
Committee".
30. ..... As mentioned hereinabove, apart
from the directions for interception dated
29/10/2009, 18/12/2009 and 24/2/2010, the records
referred to in the aforesaid paragraphs are not in
the possession of the CBI, EOW, and therefore the
CBI EOB would not be able to produce the same.
The records sought by the Petitioner / A-2 would be
in the possession of the concerned Secretary who
issued the directions for interception / the Review
Committee........"
patilsr 26/ 37
wp-2367 of 19(J).doc
27. On behalf of the Respondent - Union of India, one Mr.
Rakesh Kumar, Secretary to Government of India, Ministry of
Home Affairs has filed an affidavit dated 8 th August 2019. While
relying on Rule 419A(18), he has submitted thus in paragraphs 2
and 3 :
"2. ........ Thus, as per the provision of sub Rule
18 of Rule 419A of the Indian Telegraph Rules, 1951
all the interception order of mobile numbers for the
above periods have been destroyed through
shredding machine being more than six months old.
3. ........ Only when the Review Committee is of
the opinion that the directions are not in accordance
with the provisions as per Section 5(2) of the
Telegraph Act, may set aside the directions and
orders for destruction of the copies of the intercepted
message or class of messages. Otherwise no
direction is issued by the Review Committee"
28. We deprecate taking of such varying stands by the
Respondents in the matter of alleged violation of fundamental
rights.
29. The Respondents also claim that three interception
orders dated 29.10.2009, 18.12.2009 and 24.2.2010 are 3
different orders and are not continuation of the earlier order. This
action of issuing successive orders or repeated orders under sub-
patilsr 27/ 37
wp-2367 of 19(J).doc
rule (1) of Rule 419(A) by the competent authority without
making a reference to the review committee within 7 working
days and/or there being scrutiny by the review committee under
sub-rule (17) of Rule 419(A) is in clear breach of the statute,
Rules and the Constitution of India. All three impugned orders in
the instant case bear the same number and ex-facie appears to
have been issued in the similar manner before the expiry of
period of earlier order. The 1 st order dated 29th October 2009 is
valid for 60 days. Before the expiry thereof, order dated 18 th
December 2009 is issued for further period of 60 days. And
before the expiry of this second order, third order dated 24 th
February 2010 is issued for further period of 60 days. There is no
record produced to show that the compliance of Rules. This is
wholly impermissible and in violation of the directions issued by
the supreme Court in PUCL's case (supra), which stand affirmed
by the constitution bench judgment in K. T. Puttaswamy (supra).
30. In the instant case, now there is an admission by the
Respondent that the record have been destroyed purportedly
under sub-rule (18) of rule 419(A). The words "such" in sub-rule
(18) therefore, refers to the direction and/or to the intercepted
patilsr 28/ 37
wp-2367 of 19(J).doc
message referred to in previous sub-rule (17) which are not in
accordance with the provisions of sub-section (2) of section 5.
31. The findings of review committee would be either
directions being in accordance with the provisions or not. If
findings are in favour of the directions, i.e., if the directions
conform to the requirements of provisions, no further step is
contemplated. However, if the findings are that directions are
not in accordance with the provisions, then Rule 419(A)(17)
further provides for setting aside the directions and orders for
destruction of the copies of intercepted messages or class of
messages. Thus, orders for destruction are contemplated in Rule
419(A)(17) if and only if the directions so issued under rule
419(A)(1) for interception are ultra vires of section 5(2).
Significantly, the destruction of record (i.e., copies of the
intercepted messages and or class of messages) is mandatorily
coupled with setting aside the directions for interceptions.
. The stand of the Respondent, therefore, draws adverse
inference against the Respondent and would not put them on a
better footing to take advantage of their own wrong.
patilsr 29/ 37
wp-2367 of 19(J).doc
32. In KLD Nagashree v. Government of India [ AIR-2007
AP 102] while considering the rules as existed before 12.7. 2007
and directing the destruction of intercepted messages pursuant
to the illegal direction, it was observed in paragraphs 35 to 38 :
"35. Keeping in view the object and purpose of the
said Rules as declared in People's Union for Civil Liberties's
case (supra) and particularly since the violation of the said
provisions would result in infraction of right to privacy of an
individual which is a part of the right guaranteed under
Article 21 of the Constitution of India, I am of the opinion
that Rule 419-A though procedural in nature is mandatory
and the non-compliance of the same would vitiate the
entire proceedings.
36. It is also relevant to note that under Sub-rule
(9) if the Review Committee is of the opinion that the
directions are not in accordance with the provisions of Rule
419-A, it is empowered to set aside the directions and
order for destruction of the copies of the intercepted
message. The fact that the consequences of non-
compliance of the procedure prescribed under Rule 419-A
are also provided under the same Rule further makes clear
the intention of the Legislature to make the said procedure
mandatory. Hence, the non-compliance of the procedure
under Rule 419-A is undoubtedly fatal.
37. At any rate, since the impugned order is also in
contravention of the substantive law as laid down in Sub-
section (2) of Section 5 of the Act and is declared illegal,
the consequential action of the respondents 2 and 3 in
intercepting the mobile telephone of the petitioner is
automatically rendered unauthorised. Hence, whatever
information is obtained pursuant to the order dated 17-11-
2003 cannot be taken into consideration for any purpose
whatsoever.
patilsr 30/ 37
wp-2367 of 19(J).doc
38. For the reasons stated above, the Writ Petition
is allowed declaring the impugned order dated 17-11-2003
as illegal and void and consequently directing that the
copies of the intercepted messages pursuant to the said
order shall be destroyed. No costs."
. We are in complete agreement with the view taken by
the Andhra Pradesh High Court which considers the rules
providing for consequences for non compliance, as well as the
directions of the supreme Court in PUCL's case (supra) while
deciding this issue.
33. The Respondents relied on the judgment in Dharambir
Khattar v.. Union of India [2012 SCC Online Delhi 5805] which
relies on R. L. Malkhani v. State of Maharashtra [1973(1) SCC
471], State (NCT of Delhi) Navjot Sandhu [2005 (11) SCC 600]
and Pooran Mal vs. Director of Inspection (Investigation) [1974(1)
SCC 345] to urge that even if there is some violation of the rules
framed under the Act in collecting the material, such material can
be relied upon as evidence during the trial. In particular, the
following observations from Dharambir (supra) was stressed
upon:
"Therefore, without going into the issue of whether
there was non-compliance of the provisions of
patilsr 31/ 37
wp-2367 of 19(J).doc
Section 5(2) or of Rule 419-A, it is clear that even if
there was, in fact, no compliance, the evidence
gathered thereupon would still be admissible. This
is the clear position settled by the Supreme Court
and, therefore, no further question of law arises on
this aspect of the matter."
34. In Dharambir (supra) the challenge before the Delhi
High Court was to constitutional validity of section 5(2) of the Act
and the intercepted messages were sought to be declared void
on that basis. The compliance of final directions in PULC's case
(supra) directing destruction of the intercepted messages on
finding contravention of section 5(2) of the Act was not in
consideration. The fact of complete lack of jurisdiction and
mandatory rules itself providing for consequences of destruction
in such event was not the issue involved and considered. Most
importantly, while delivering the said judgment, Delhi High Court
did not have the benefit of authoritative pronouncement of the
the nine judges constitution bench judgment in K. T. Puttaswamy
(supra). No examination on the touchstone of principles of
proportionality and legitimacy, as laid down by the nine judges
constitution bench judgment in K. T. Puttaswamy (supra) was
involved. The facts before the Delhi High Court were materially
different. The case of Dharambir Khattar (supra) is, thus,
patilsr 32/ 37
wp-2367 of 19(J).doc
distinguishable on the above peculiar facts and ground.
35. Similarly, Navjot Sandhu (supra) was a case of
prevention of terrorist activities. It was serious case relating to
the national security. It was nobody's case that ingredients of
section 5(2) of the Act could not be satisfied or there was
complete lack of jurisdiction under section 5(2) of the Act as in
the instant case. Moreover, the said judgment is only prior to
decision in K. T. Puttaswamy (supra). It in paragraph 154, it
relies on R. M. Malkhani (supra) which as noticed in paragraph 51,
K. T. Puttaswamy (supra) followed the same line of reasoning as
in Kharak Singh (supra) while rejecting the privacy based
challenge under Article 21 of the constitution of India, which now
stands overruled.
36. Poorn Mal (supra) is a decision where the facts and
issues were not similar to the instant case. Here the action of the
executive is in breach of the fundamental rights under Article 21
of the Constitution of India as also directions of the Supreme
Court in PUCL's case (supra), in that case there was no direction
or provision which could mandate the destruction of record in the
patilsr 33/ 37
wp-2367 of 19(J).doc
absence of valid order. No case of any infraction of Article 21 of
the Constitution of India was raised. That apart, Pooran
Mal(supra) inter alia follows M. P. Sharma (supra) and majority
opinion in A. K. Gopalan v. State of Madras [(1950) SCR 88] which
today stand overruled. The following paragraphs from Pooran
Mal (supra) where reliance is placed on A. K. Gopalan (supra) and
M. P. Sharma (supra) which are now overruled by the nine judges
constitution bench decision in K. T. Puttaswamy (supra) :
"23. As to the argument based on "the spirit of our
Constitution", we can do no better than quote from the judgment
of Kania, C. J. in A. K.Gopalan v. The State of Madras :
"There is considerable authority for the statement that the
Courts are not at liberty to declare an Act void because in their
opinion it is opposed to a spirit supposed to pervade the
Constitution but not expressed in words. Where the fundamental
law has not limited, either in terms or by necessary implication,
the general powers conferred upon the Legislature we cannot
declare a limitation under the notion of having discovered
something in the spirit of the Constitution which is not even
mentioned in the instrument. It is difficult upon any general
principles to limit the omnipotence of the sovereign legislative
power by judicial interposition, except so far as the express
words of a written Constitution give that authority."
...........
In M. P. Sharma v. Satish Chander, already referred to, a search
and seizure made under the Criminal Procedure Code was
challenged as illegal on the ground of violation of the
fundamental right under Article 20(3), the argument being that
the evidence was no better than illegally compelled evidence. In
support of that contention reference was made to the Fourth and
Fifth amendments of the American Constitution and also to some
American cases which seemed to hold that the obtaining of
incriminating evidence by illegal seizure and search tantamounts
to the violation of the Fifth amendment. The Fourth amendment
does not place any embargo on. reasonable searches and
seizures. It. provides that the right of the people to be secure in
patilsr 34/ 37
wp-2367 of 19(J).doc
their persons, papers and effects against unreasonable searches
and seizures shall not be violated. .Thus the privacy of a citizen's
home was specifically safeguarded under the- Constitution,
although reasonable searches and seizures were not taboo.
Repelling the submission, this Court observed at page 1096."
A power of search and seizure is in any system of jurisprudence
in overriding power of the State for the protection of social
security and that power is necessarily regulated by law. When
the Constitution makers have thought fit not to subject such
regulation to constitutional limitations by recognition of a
fundamental right to privacy,. analogous to the American Fourth
Amendment, we have no justification to import it, into a totally
different fundamental right, by some process of strained
construction. Nor is it legitimate to assume that the
constitutional protection under article 20(3) would be defeated
by the statutory provisions for searches.
It, therefore, follows that neither by invoking the spirit of our
Constitution nor by a strained construction of any of the
fundamental rights can we spell out the exclusion of evidence
obtained on an illegal search."
37. Even the judgment of Hon'ble Supreme Court in
Umesh Kumar v. State of UP [(2013) 10 SCC 591] , in paragraph
35 refers to and relies upon R. M. Malkhani, Pooran Mal and
Navjot Sandhu (supra), which are already discussed hereinabove.
Moreover, the said cases are distinguishable from the facts of the
instant case. We are also bound by the judicial discipline which
requires that we should follow the latter decision of greater
strength bench in preference to the lesser strength bench
decision.
38. Further in Hussein Ghadially v. State of Gujarat
patilsr 35/ 37
wp-2367 of 19(J).doc
[(2014) 8 SCC 425] for non compliance with the mandatory
requirement of approval, in the light of Article 21 the Constitution
of India, even the conviction under the TADA Act was set aside.
"21.3 Thirdly, because if the statute provides for a thing
to be done in a particular manner, then it must be done in
that manner alone. All other modes or methods of doing that
thing must be deemed to have been prohibited.
......
29. The upshot of the above discussion, therefore, is
that the requirement of a mandatory statutory provision
having been violated, the trial and conviction of the
petitioners for offences under the TADA must be held to have
been vitiated on that account."
39. We may also add here that if the directions of the
Apex Court in PUCL'case (supra) which are now re-enforced and
approved by the Apex Court in K. T. Puttaswamy (supra) as also
the mandatory rules in regard to the illegally intercepted
messages pursuant to an order having no sanction of law, are
permitted to be flouted, we may be breeding contempt for law,
that too in matters involving infraction of fundamental right of
privacy under Article 21 the Constitution of India. To declare that
dehorse the fundamental rights, in the administration of criminal
law, the ends would justify the means would amount to declaring
the Government authorities may violate any directions of the
patilsr 36/ 37
wp-2367 of 19(J).doc
Supreme Court or mandatory statutory rules in order to secure
evidence against the citizens. It would lead to manifest
arbitrariness and would promote the scant regard to the
procedure and fundamental rights of the citizens, and law laid
down by the Apex Court.
40. We, therefore, quash and set aside three interception
orders dated 29th October, 2009, 18th December, 2009 and 24th
February, 2010 and consequently direct the destruction of copies
of intercepted messages/ recordings. The intercepted messages/
recordings stand eschewed from the consideration of trial Court.
The Petitioner is at liberty to adopt the remedy available in law
for the other reliefs sought in the writ petition.
[N. J. JAMADAR, J.] [RANJIT MORE, J.]
patilsr 37/ 37
