Bejoy Satheesh vs The Ministry Of ...
2021 Latest Caselaw 19392 Ker

                                   -1-

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
            THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                        &
                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
     THURSDAY, THE 16TH DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943
                         WP(C) NO. 13038 OF 2018
PETITIONER/S:

            BEJOY SATHEESH
            AGED 45 YEARS, S/O.SRI.R.SATHEESAN, 301, NORTH FORT
            GARDEN, THRIPUNITHURA-682301, ERNAKULAM DISTRICT, KERALA
            STATE.
            BY ADVS.
            SRI.T.RAMPRASAD UNNI
            SMT.R.S.ASWINI SANKAR
            SRI.T.H.ARAVIND
            SRI.S.M.PRASANTH
            SRI.G.RENJITH


RESPONDENT/S:

     1      THE MINISTRY OF TELECOMMUNICATIONS
            GOVERNMENT OF INDIA, NEW DELHI-110001, REPRESENTED BY ITS
            SECRETARY.
     2      THE MINISTRY OF HOME AFFAIRS
            GOVERNMENT OF INDIA, NEW DELHI, REPRESENTED BY ITS SPECIAL
            SECRETARY (INTERNAL SECRETARY)
     3      TELECOM REGULATORY AUTHORITY OF INDIA
            MAHANAGAR DOORSANCHAR BHAVAN, JAWAHARLAL NEHRU MARG, NEW
            DELHI-110001.
     4      IDEA CELLULAR LTD.
            CORPORATE OFFICE, 10TH FLOOR, THE BIRLA CENTURION, PLOT
            NO.794, B WING, PANDURANG BUDHKAR MARG, WORLI, MUMBAI-
            400030, REPRESENTED BY ITS MANAGING DIRECTOR.
            BY ADVS.
            SMT.C.G.PREETHA, CGC FOR R1 TO R3
            SRI.ARUN THOMAS
            SRI.JENNIS STEPHEN
            SMT.KARTHIKA MARIA
            SMT.MARIA ROY
            SRI.SANTHOSH MATHEW FOR R4
            SRI.VIJAY V. PAUL
            SMT.VEENA RAVEENDRAN

     THIS   WRIT   PETITION   (CIVIL)    HAVING   COME   UP   FOR   ADMISSION   ON
16.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No. 13038 of 2018            -2-




                              JUDGMENT

S. Manikumar, C. J.

Instant public interest writ petition has been filed for the

following reliefs:-

"i) To issue a Writ of Mandamus directing the respondents 1 to 3 to take appropriate steps to prevent the 4 th respondent from recording private conversations.

ii) To declare that the action of the 4th respondent in recording private conversations is illegal and in violation of the fundamental rights of the petitioner and other citizens of India."

2. Brief facts which lead to the filing of the writ petition are as

hereunder:-

According to the petitioner, present writ petition is moved in

public interest, seeking to highlight a grave violation of the

fundamental rights of the citizens of India, whose right to privacy is

grossly violated at the instance of a major mobile network provider.

Petitioner has contended that Idea Cellular Ltd., represented by

its Managing Director, Mumbai, the 4 th respondent, has come up with

a service of "call recording", by which the said service provider can

record all calls to the customer at its premises and sent it to such

customers. The call recording service could be done until now only for

the specific reasons and on the grounds stated in the decision reported

in 1997 (1) SCC 301.

Petitioner has further contended that the State has framed rules

also in this regard. Now, in flagrant violation of those rules and the

principles laid down by the Apex Court, the 4 th respondent has now

floated a call recording service, which has potential to intrude into the

valuable right to privacy guaranteed by the Constitution, and declared

recently authoritatively by the Hon'ble Apex Court in the Right to

Privacy case.

Petitioner has also contended that unless this Court intervenes in

the matter and passes appropriate orders or directions, a serious breach

to privacy of citizens of India in violation of the existing norms and

guidelines issued by the government of India to mobile network

providers, would take place.

3. On behalf of the Telecom Regulatory Authority of India, New

Delhi, the 3rd respondent, a statement has been filed, which reads

thus:-

"3. It is submitted that TRAI is a statutory body set up under the Telecom Regulatory Authority of India Act, 1997 (24 of 1997), inter alia, to regulate telecom services and to protect the interests of service providers and consumers of telecom sector, etc. The recommendatory, regulatory and tariff functions of TRAI are set out in Section 11 of TRAI Act, 1997.

4. The petitioner has filed the petition alleging grave violation of the fundamental rights regarding right to privacy by major mobile network providers. It has been alleged that SEBI has issued instructions to all Stock Brokers in the country to provide mechanism for recording all telephonic conversation which form part of business transaction for up-keeping of the records for further verification. M/s Idea Cellular Ltd. has provided a call recording solution, using which the purchaser can record any telephone call that comes to the purchaser on telephone network.

5. All Telecom Service Providers are governed by the license agreement entered into with Department of Telecommunications (DoT). Further, since the licence is issued by DoT, its interpretation can be best done by DoT. It is submitted that TRAI has no role in the matter."

4. Subsequent to the filing of the writ petition, then Idea Cellular

Ltd., represented by its Managing Director, Mumbai, the 4 th

respondent, has merged with Vodafone India Ltd. Statement has been

filed by the 4th respondent, explaining the merger, as well as the grant

of permission, to have the conversation recorded between the stake

holders. Relevant paragraphs of the same are reproduced hereunder:-

"9. It is submitted that in view of the rise in the number of disputes and litigations against banks for engaging recovery agents in the recent past, RBI issued a guideline on 24-04-2008 making it mandatory for Banks to ensure that there is a recording of the content/text of the calls made by recovery agents to the customers, and vice-versa. This has not been challenged by the Petitioner in the present Writ Petition.

10. Insurance Regulatory and Development Authority has also issued guidelines on Distance Marketing of Insurance Products mandating call recording in exercise of the powers conferred upon the Authority under Section 14(1) of the IRDA Act, 1999 to protect the interests of the policyholders and to regulate, promote and to ensure the orderly growth of the insurance industry. This has not been challenged by the Petitioner in the present Writ Petition.

11. Similarly, in order to strengthen regulatory provisions against un-authorized trades by stockbrokers and also to harmonise the requirements across markets, SEBI has issued a circular on 26-09-2017 to all recognised Stock Exchanges to use telephone recording system to record the client placing the order and instructions and maintain telephone recordings as part of its records. This has not been challenged by the Petitioner in the present Writ Petition.

12. It is submitted that in all such calls, the customers are informed that the call is being recorded. This process of call

recording is usually done with the help of a call logger with every analogue/digital telephone line and the call logs (voice files) are transferred on to the central server on a periodic basis. Due to the vast spread operations of EBHs across the country and the number of lines that are in use, they face many challenges like capturing proper Caller Line Identification, unable to manage recording etc. Therefore, secure call recording solutions are provided to Banks, Equity Broking Houses, Insurance companies etc. The same solution can be extended to various enterprises across industry verticals in compliance with the regulatory provisions. Call Recording Server (CRS) is hosted at the Master Switching Centre locations which will act as call logger and recording servers. All the calls originated and terminated from CRS activated subscribers are routed through CRS for recording purpose. Service Agreement will be signed between Vodafone Idea Ltd and all the enterprise customers stating that recordings are being stored and shared with third party service provider making it clear that liability lies with Enterprise Customer.

13. It is submitted that mobile call recording solutions are offered by Vodafone Idea Limited strictly in accordance with law and after complying with all the statutory and procedural requirements."

5. Abovesaid averments are also supported by documents and

circulars issued by the statutory authorities. Guidelines issues by the

RBI dated 24.04.2008, mandating call recording, is reproduced:-

6. Along with the statement, respondent No. 4 has produced the

guidelines issued by the IRDA dated 05.04.2011, mandating call

recording, which is reproduced:-

7. Respondent No. 4 has also produced circular of the SEBI

dated 26.07.2017, mandating call recording, which is reproduced:-

8. On this day, when the matter came up for further hearing, Mr.

Ramprasad Unni, learned counsel for the petitioner, seeks permission to

withdraw the writ petition, with liberty to take suitable steps.

Placing on record the above, writ petition is dismissed as

withdrawn. Liberty as prayed for is granted.

Sd/-

S. MANIKUMAR CHIEF JUSTICE

Sd/-

SHAJI P. CHALY JUDGE Eb

///TRUE COPY/// P. A. TO JUDGE

APPENDIX OF WP(C) 13038/2018

PETITIONER EXHIBITS EXHIBIT P1- TRUE RELEVANT EXTRACT OF THE CALL RECORDING SOLUTION LAUNCHED BY THE 4TH RESPONDENT.

EXHIBIT P2- TRUE COPY OF THE REPRESENTATION DATED 26/03/2018 SUBMITTED BY THE PETITIONER. EXHIBIT P3- TRUE COPY OF THE MAIL RECEIVED BY THE PETITIONER FROM THE 4TH RESPONDENT.