Madras High Court
P.Kishore vs The Secretary To Government on 2 July, 2025
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
2025:MHC:1510
WP.No.143 of 2018
In the High Court of Judicature at Madras
Reserved on : Delivered on :
20.6.2025 02.7.2025
Coram :
The Honourable Mr.Justice N.ANAND VENKATESH
Writ Petition No.143 of 2018
& WMP.Nos.206 & 207 of 2018
P.Kishore ...Petitioner
Vs
1.The Secretary to Government
of India, Ministry of Home
Affairs, North Block, Central
Secretariat, New Delhi.
110001.
2.The Director, CBI, Plot No.5B,
6th Floor, CGO Complex,
Lodhi Road, New Delhi.
110003.
3.The Additional Superintendent
of Police, SPE : CBI : ACB :
Chennai. (RC MA1 2011 A 0033)
(R2 & R3 are impleaded in
WMP.No.5360 of 2020 vide
separate order dated
02.7.2025 by NAVJ) ...Respondents
1/94
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WP.No.143 of 2018
PETITIONS under Article 226 of The Constitution of India praying
for the issuance of a Writ of Certiorarified Mandamus to call for the
records of the respondent in No.14/3/97-CBI dated 12.8.2011, quash
the same and consequently declare the intercepted telegraphic
messages/conversations to and from 98410-77377 as invalid (prayer
amended as per order of court dated 10.1.2018 vide WMP.No.
844 of 2018 by KRCBJ).
For Petitioner : Mr.Sharath Chandran for
Mr.Rajagopal Vasudevan
For Respondents : Mr.AR.L.Sundaresan, ASG
assisted by
Mr.T.V.Krishnamachari, SPC for R1
and
assisted by
Mr.K.Srinivasan, SPC for R2 & R3
ORDER
This is a petition filed by the petitioner under Article 226 of The
Constitution of India challenging an order dated 12.8.2011 passed by
the first respondent under Section 5(2) of the Telegraph Act, 1885
(hereinafter called the Act) and Rule 419-A of the Telegraph Rules,
1951 (hereinafter called the Rules) authorizing tapping of the mobile
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phone of the petitioner by the second respondent.
2. This case raises seminal constitutional questions touching the
scope of the right to privacy and the power of the Law Enforcement
Agencies to resort to covert surveillance by tapping the mobile phones
to obtain information regarding the commission of an alleged crime.
3. The circumstances giving rise to this challenge are as under:
(i) The petitioner - one Mr.P.Kishore was the Managing Director
of one M/s.Everonn Education Limited, Perungudi, Chennai. On
12.8.2011, the first respondent passed an order under Section 5(2) of
the Act and Rule 419-A(1) of the Rules authorizing the interception of
messages from the phone of the petitioner. The impugned order
alleged that interception should be made and disclosed to the CBI for
reasons of public safety and in the interest of public order and for
preventing incitement to the commission of an offence.
(ii) In the meantime, pursuant to the aforesaid order, on
29.8.2011, the third respondent registered a first information report
(FIR) in R.C.MA1 2011 A 0033 of 2011 against one Mr.Andasu
Ravinder, IRS, Additional Commissioner of Income Tax, Company
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Range, Chennai (A1), the petitioner (A2) and one Mr.Uttam Bohra (A3)
for offences under Section 120-B of the Indian Penal Code (IPC) and
Section 7 of the Prevention of Corruption Act, 1988. The FIR alleged
that A1 had conducted a search in the business premises of the said
M/s.Everonn Education Limited, which was found to have concealed
certain taxable income. A1 was alleged to have demanded a bribe of
Rs.50 lakhs from A2 to help the said company evade taxes. Pursuant
to this conspiracy, A2 was to hand over the said sum of money to A1
later that night and A3, who was a friend of A1, was to take the money
thereafter to an unknown place.
(iii) On the basis of the above information, the officials of the CBI
proceeded to Aayakar Bhavan Campus around 8:55 pm and took
positions when they saw a Maruti Alto Car bearing registration number
TN-04-AD-9747 driven by A3 proceeding towards the residence of A1.
A3 alighted from the car and proceeded towards the stairs leading to
the residence of A1. A1 was seen coming down from the stairs with a
carton box in a polythene bag and getting into the car of A3 to take
away the money to an unknown place. At that time, the CBI officials
intercepted and apprehended A1 and A3. The carton box was seized
and was later opened wherein it was found to have contained Rs.50
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lakh. Neither A1 nor A3 could give satisfactory explanation for the
money seized. It should be noted that it is not the case of the CBI that
the petitioner (A2) was present on the spot at that time or that the
money was seized from him.
(iv) The CBI completed the investigation and filed a final report
before the 9th Additional District Court-cum-Special Court for CBI
Cases, Chennai. The same has been taken on file as C.C.No.3 of 2013
and was stated to be pending.
(v) The petitioner (A2) had initially challenged the said order
dated 12.8.2011 passed under Section 5(2) of the Act before this
Court by filing Crl.O.P.No.12404 of 2014. This Court had, by an order
dated 06.6.2014, granted an interim order of stay, which continued to
be extended from time to time. Later, Crl.O.P.No.12404 of 2014 was
dismissed on 27.10.2017 granting liberty to the petitioner to challenge
the said order dated 12.8.2011 before the appropriate forum. It
appears that this course was resorted to since the impugned order has
been passed by the first respondent under Section 5(2) of the Act.
Since the first respondent is obviously not a Criminal Court under the
Criminal Procedure Code (Cr.P.C), the challenge to such an order could
have only been made under Article 226 and not by way of a petition
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under Section 482 of the Cr.P.C. This petition under Article 226 has
been filed pursuant to the liberty granted by this Court in the order
dated 27.10.2017 in Cr.O.P 12404 of 2014.
4. The 1st respondent has filed its counter affidavit opposing the
writ petition on the following grounds:
(i) The impugned order has been passed in strict compliance with
Section 5(2) of the Act and Rule 419-A of the Rules. Since the
petitioner was having a conversation to commit an offence, it was
intercepted in the interest of public safety preventing further
incitement to the commission of an offence.
(ii) Tapping of phones in the instant case has been done in
consonance with the law laid down by the Hon'ble Supreme Court in
the case of Hukam Chand Shyam Lal Vs. Union of
India [reported in 1976 (2) SCC 128].
(iii) The decision of the Hon'ble Supreme Court in the case of
R.M.Malkani Vs. State of Maharashtra [reported in 1973 (1)
SCC 471] has categorically stated that the argument based on right to
privacy is not available to a guilty citizen against the efforts of the
police to vindicate the law. Hence, the prayer of the petitioner is not
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maintainable and ought to be dismissed.
5. The third respondent filed a counter affidavit for himself and
on behalf of the second respondent contending, inter alia, as follows:
(i) Based on source information, the CBI had registered a regular
FIR on 29.8.2011. A team of the CBI officials was thereafter deputed
to carry out the search under Section 165 of the Cr.P.C. at the
residential premises of the said Mr.Andasu Ravinder (A1) at No.121, IT
Colony, Uthamar Gandhi Road, Nungambakkam, Chennai-34. After
reaching the residential premises of the said Mr.Andasu Ravinder (A1),
the CBI officials saw the car of the said Mr.Uttam Bohra (A3) reaching
the said residence. A1 came down from his residence on the 1st floor
and proceeded towards the car. He was seen to be carrying a carton
box with a polythene bag. A1 met A3 and both boarded the car. When
they were about to depart, the CBI team intercepted the car and
recovered the polythene bag from A1. The bag was found to have
contained Rs.50 lakhs and neither A1 nor A3 was able to account for
possession of the said sum of money. The CBI completed the
investigation and filed a final report before the 9th Additional Court for
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CBI Cases, Chennai in C.C.No.3 of 2013 against three accused
persons, of which, the petitioner has been arrayed as A2.
(ii) The bribe of Rs.50 lakhs was handed over to A1 by A2 and
A1 was later intercepted while attempting to secret this money with
the help of A3. The interception orders were necessary since they were
issued for the purpose of detecting, preventing, investigating and
prosecuting the corrupt activities. The order dated 12.8.2011 was
passed in consonance with Section 5(2) of the Act and reflected
complete application of mind.
(iii) The order dated 12.8.2011 was passed after following the
procedure established by law. Such procedures are just and reasonable
and pass the test of proportionality and legitimacy. Since the order
dated 12.8.2021 has been passed by the Home Secretary, there is a
presumption of constitutionality attached to the order of interception.
(iv) The guidelines issued in the judgment of the Hon'ble
Supreme Court in the case of People's Union for Civil Liberties Vs.
Union of India [reported in AIR 1997 SC 568] have been strictly
complied with. In any event, in view of the judgment of the Hon'ble
Apex Court in the case of R.M.Malkani, it is not open to the petitioner
to claim any right to privacy either under Article 21 or under Article 19
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of The Constitution of India since the protections given therein are not
for the guilty citizens.
(v) According to the CBI, the order of the first respondent under
Section 5(2) of the Act has been passed on account of a “public
emergency”. As regards the expression “public safety” occurring in
Section 5(2), the CBI stated that this aspect cannot be confined to
events or situations, which would be apparent to any reasonable
person. Since the offence, in the instant case, is one of corruption, the
same would impact public safety since it undermined the reputation of
the Income Tax Department.
(vi) There was no violation of the safeguards provided under
Rule 419-A of the Rules since there was no direction from the
first respondent to place the samples before any Review Committee.
(vii) The power to take voice samples has been recognized by
the Hon'ble Apex Court in the case of Ritesh Sinha Vs. State of U.P.
[reported in AIR 2019 SC 3592] and the use of intercepted voice
conversations was upheld by a learned Single Judge of this Court in
the case of Sanjay Bhandari Vs. Secretary to Government of
India, Ministry of Home Affairs & another [W.P.Nos.5466
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& 5470 of 2020 dated 23.11.2020]. Hence, the impugned order did
not suffer from any infirmity whatsoever.
6. A reply affidavit has been filed by the petitioner contending as
follows:
(i) The impugned order mechanically repeats the expressions
used in Section 5(2) of the Act. The other orders passed in respect of
some of the other accused have been placed on record to show that
they are basically cyclostyled orders, which reflect no independent
application of mind.
(ii) The expression “public order” has been explained by the
Hon'ble Supreme Court in the case of Hukam Chand Shyam Lal and
in the subsequent decision of the Hon'ble Supreme Court in People's
Union for Civil Liberties. These decisions make it clear that unless
there is a a public emergency or public safety, the power under
Section 5(2) of the Act cannot be resorted to. The decision of the
Hon'ble Supreme Court in People's Union for Civil Liberties has
been upheld by the Supreme Court in the case of K.S.Puttaswamy
Vs. Union of India [reported in 2017 (10) SCC 1] while
recognizing the right to privacy as an integral element of Article 21 of
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The Constitution of India. Several High Courts have quashed similar
orders under Section 5(2) of the Act following the decision of the
Hon'ble Supreme Court in People's Union for Civil Liberties.
Consequently, the impugned order is also vitiated and must be set
aside as one without jurisdiction.
7. Heard the respective learned counsel appearing for either
parties.
8. Mr.Sharath Chandran, learned counsel appearing on behalf of
the petitioner contended as follows :
(a) The law as regards the right to privacy has evolved over the
past 75 years. In the decision of the Hon'ble Supreme Court in the
case of M.P.Sharma Vs. Satish Chandra [reported in 1954 (1)
SCC 385 : 1954 SCR 1077], a Bench consisted of 8 learned Judges
had initially taken the view that there was no right to privacy under
The Constitution of India.
(b) This view was reiterated by the majority in the Constitution
Bench in the case of Kharak Singh Vs. State of U.P. [reported in
1964 (1) SCR 332 : AIR 1963 SC 1295] barring K.Subba Rao,J,
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who dissented. However, in the decisions of the Hon'ble Supreme
Court in Gobind Vs. State of M.P. [reported in 1975 (2) SCC 148]
and in R.Rajagopal Vs State of Tamil Nadu [reported in 1994 (6)
SCC 632], echoes of the existence of a right to privacy were heard.
These echoes grew louder in the decision of the Hon'ble Apex Court in
People's Union for Civil Liberties, which was concerned with the
phone tapping. In the said decision it was conclusively held that the
unauthorized phone tapping violated the right to privacy under Article
21 of The Constitution.
(c) Once Article 21 was triggered, the impairment of a
fundamental right would have to be sustained only on the anvil of a
procedure established by law. The statutory backing to tap phones is
traceable to Section 5(2) of the Act. Unless the jurisdictional conditions
in that provision are satisfied, phone tapping would be illegal.
(d) In view of the decision of the Hon'ble Apex Court in
People's Union for Civil Liberties, Section 5(2) of the Act will not
stand attracted unless and until there existed a public emergency or
was done in the interest of public safety. The Supreme Court held that
neither the occurrence of public emergency nor the interest of public
safety is a secretive condition or situation. Either of the situations
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would be apparent to a reasonable person. Covert surveillance of the
type conducted in this case definitely cannot fall within the aforesaid
two situations contemplated under Section 5(2) of the Act.
(e) On 25.4.2011, the Government of India reiterated the legal
position that phone tapping could be carried out only in strict
compliance with Section 5(2) of the Act and in accordance with law
and the guidelines laid down by the Hon'ble Apex Court in the case of
People's Union for Civil Liberties. This press note was issued four
months prior to the impugned order. That apart, even as per the
counter affidavit of the CBI, the intercepted conversations were not
placed before the Review Committee in terms of Rule 419-A of the
Rules, which is mandated by the decision of the Hon'ble Apex Court in
the case of People's Union for Civil Liberties. Thus, the
Government cannot feign ignorance of the law, when it purportedly
issued the impugned order.
(f) Since the impugned order has been issued without
jurisdiction, the same must necessarily be set aside. The evidence so
obtained must also stand wiped out since the action is no longer in the
realm of a mere irregularity, but is founded on unconstitutionality.
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(g) The common law doctrine of fruit of a poisonous tree was
held to be inapplicable in India in view of the judgments of the Hon'ble
Apex Court in the case of Pooran Mal Vs. Director of Inspection
(Investigation) of Income Tax, Mayur [reported in AIR 1974 SC
348] and in the case of R.M.Malkani. But, these decisions were
rendered at a time when right to privacy was not recognized under
Article 21. Previously, the evidence obtained as a result of an illegal
search may be admissible provided it is relevant.
(h) The First Bench of this Court in the case of SNJ Breweries
Vs. Principal Director of Income Tax (Investigation) [reported
in (2024) 2 CWC 727] has considered the issue and held that the
decisions of the Hon'ble Supreme Court in Pooran Mal and R.M.
Malkani require a re-look in the light of the law laid down by the 9
Judges' Bench of the Hon'ble Apex Court in the case
of K.S.Puttaswamy.
9. These submissions were countered by Mr.AR.L.Sundaresan,
learned ASG appearing on behalf of the respondents and he submitted
as follows:
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(a) The provisions of Section 5(2) of the Act ought to be
expanded so as to accommodate newer contingencies such as the case
on hand. Adverting to paragraph 16 of the counter affidavit of the CBI,
it was submitted that since the matter involved corruption in high
places, the issue involved a risk to public safety. Since the reputation
of the Income Tax Department was at stake, there was a resultant
threat to public safety.
(b) Restricting the concept of public safety to situations that
would be evident to a reasonable person would exclude situations like
detection of crimes carried on by secretive means since most of the
threat is from hidden actors. Such information is sensitive in nature
and cannot be placed in the public domain. Therefore, the scope of
Section 5(2) of the Act must be expanded beyond its literal words to
accommodate newer situations such as the one on hand.
(c) There was a complete application of mind while passing the
impugned order, which is evident from the order itself. Referring to
paragraph 10 of the counter affidavit of the CBI, it was submitted that
such interception was necessary to prevent the offence of corruption
and for detection of corrupt activities, which was permissible under the
rubric of public safety under Section 5(2) of the Act.
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(d) Adverting to the decision of the Hon'ble Apex Court in R.M.
Malkani, it was submitted that the said decision was clearly applicable
to the case on hand. Even if the impugned order is set aside, the
evidence so collected cannot be eschewed. It is a settled principle of
law that it is not the source, but the relevancy of the evidence that
matters.
(e) The decision of the Hon'ble Supreme Court in the case of
People's Union for Civil Liberties has been subsequently translated
into the Enactment of Rule 419-A of the Rules. The Government has
scrupulously adhered to these Rules while passing the impugned
order.
(f) Lastly, the present case involved a serious crime of bribery
and corruption and the intercepted conversation led to the registration
of the FIR. Thus, this material should not be kept aside on
technicalities.
10. From the rival submissions and the materials on record, the
following are the questions that arise for the consideration of this
Court:
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(1) What is the scope of the right to
privacy guaranteed under Article 21 of The
Constitution in the context of private
conversations over the telephone/mobile
phone? Does the unauthorized phone tapping
violate Article 21 of The Constitution?
(2) Does the impugned order meet the
requirements of Section 5(2) of the Act ?
(3) Have the respondents complied with
the procedural safeguards as set out in Rule
419-A of the Rules ?
(4) If the answer to questions (2) & (3)
is in the negative, what is the effect of
evidence collected pursuant to an
unconstitutional act of phone tapping ?
The Right to Privacy and Phone Tapping :
11. The right to privacy has, for long, been regarded as one of
the most sacred liberties of the subject. Long before, it took its roots in
this country, its existence was recognized and upheld by the Courts
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under the common law for several centuries in the context of privacy
of one’s property and possessions.
12. Way back in 1604, in Seymane Vs. Richard Gresham
[reported in 1604 All ER Rep.62], it was famously declared that
“the house of every one is to him as his castle and fortress, as
well for his defence against injury and violence, as for his
repose.” The sanctity of a man’s home was regarded as so sacred
that it was declared in Huckle Vs. Money [reported in 95 ER
768] as under:
“… To enter a man's house by virtue of a
nameless warrant, in order to procure evidence, is
worse than the Spanish Inquisition; a law under
which no Englishman would wish to live an hour….”
13. In the landmark case of Entick Vs. Carrington [reported
in (1765) 19 Howells' State Trials 1029 : (1765) 95 ER 807 : 2
Wils KB 275], Lord Camden observed:
“The great end for which men entered into
society was to secure their property. That right is
preserved sacred and incommunicable in all
instances where it has not been taken away or
abridged by some public law for the good of the
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whole…. By the laws of England, every invasion of
private property, be it even so minute, is a
trespass. No man can set foot upon my ground
without my licence but he is liable to an action
though the damage be nothing.”
14. These developments led William Pitt, the Elder, to famously
declare in 1781 as follows :
“The poorest man may in his cottage bid
defiance to all the force of the Crown. It may be
frail—its roof may shake—the wind may blow
through it—the storm may enter, the rain may
enter—but the King of England cannot enter—all
his force dare not cross the threshold of the ruined
tenement.”
15. In the United States, Lord Camden’s opinion in Entick was
extensively quoted by the U.S. Supreme Court in the case of Boyd Vs.
United States [reported in 116 US 616 (1886)] wherein it
was declared that a compulsory production of a man’s papers violated
the 4th and 5th Amendments of the U.S. Constitution. The Supreme
Court observed as follows :
“It is not the breaking of his doors, and the
rummaging of his drawers, that constitutes the
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essence of the offense; but it is the invasion of his
indefeasible right of personal security, personal
liberty. and private property, where that right has
never been forfeited by his conviction of some
public offense,—it is the invasion of this sacred
right which underlies and constitutes the essence
of Lord CAMDEN's judgment. Breaking into a house
and opening boxes and drawers are circumstances
of aggravation; but any forcible and compulsory
extortion of a man's own testimony, or of his
private papers to be used as evidence to convict
him of crime, or to forfeit his goods, is within the
condemnation of that judgment. In this regard the
fourth and fifth amendments run almost into each
other.
16. But, the right to privacy, as we now know it, gained impetus
after two Boston lawyers viz. Samuel Warren and Louis Brandeis wrote
a famous article titled “The Right to Privacy” in the 1894 issue of
the Harvard Law Review. They argued that the concept of privacy was
no longer restricted to an invasion of property, but also extended to
the protection of the personal rights of an individual as well. It was
observed thus:
“ 'Recent inventions and business methods
call attention to the next step which must be taken
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for the protection of the person, and for securing to
the individual what Judge Cooley calls the right " to
be let alone.' Instantaneous photographs and
newspaper enterprise have invaded the sacred
precincts of private and domestic life ; and
numerous mechanical devices threaten to make
good the prediction that 'what is whispered in the
closet shall be proclaimed from the house-tops.'
For years there has been a feeling that the law
must afford some remedy for the unauthorized
circulation of portraits of private persons ; and the
evil of the invasion of privacy by the newspapers,
long keenly felt, has been but recently discussed
by an able writer.”
17. The seeds of the right to privacy or the right to be let alone,
which were sown in this seminal article germinated into a full blossom
in the case of Olmstead Vs. United States [reported in 1928
SCC OnLine US SC 131 : 277 US 438 (1928)]. The issue before the
U.S. Supreme Court was as to whether the use of evidence of private
telephone conversations between the defendants and others, which
were intercepted by means of wiretapping, amounted to a violation of
the Fourth and the Fifth Amendments of the U.S. Constitution. The
Fourth Amendment of the U.S. Constitution declared thus:
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“The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation,
and particularly describing the place to be
searched, and the persons or things to be seized.”
18. The Fifth Amendment guaranteed to a citizen thus:
"No person shall be held to answer for a
capital, or otherwise infamous crime, unless on
a presentment or indictment of a Grand Jury,
except in cases arising in the land or naval
forces, or in the Militia, when in actual service
in time of war or public danger; nor shall any
person be subject for the same offence to be
twice put in jeopardy of life or limb; nor shall
be compelled in any criminal case to be a
witness against himself, nor be deprived of life,
liberty, or property, without due process of
law; nor shall private property be taken for
public use, without just compensation."
It should be mentioned that while wiretapping could violate the 4th
Amendment, the use of such evidence in a criminal case could violate
the 5th Amendment as well.
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19. As noted earlier, the decision in the case of Boyd had
recognized privacy as an aspect of a property right. The question in
the case of Olmstead was as to whether this could be extended to
telephone wire tapping. The majority decision delivered by the Chief
Justice William Howard Taft held that wiretapping did not amount to a
search and seizure within the meaning of the Fourth Amendment.
Justice Brandeis dissented. He echoed the very same lines of reasoning
seen in his 1894 article, which he had co-written as a lawyer in the
Harvard Law Review when he observed :
“Discovery and invention have made it
possible for the government, by means far more
effective than stretching upon the rack, to obtain
disclosure in court of what is whispered in the
closet.
The progress of science in furnishing the
government with means of espionage is not likely
to stop with wire tapping. Ways may some day be
developed by which the government, without
removing papers from secret drawers, can
reproduce them in court, and by which it will be
enabled to expose to a jury the most intimate
occurrences of the home. Advances in the psychic
and related sciences may bring means of exploring
unexpressed beliefs, thoughts and emotions. ‘That
places the liberty of every man in the hands of
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every petty officer’ was said by James Otis of much
lesser intrusions than these. To Lord Camden a far
slighter intrusion seemed ‘subversive of all the
comforts of society.’ Can it be that the Constitution
affords no protection against such invasions of
individual security?”
20. In two seminal paragraphs, Justice Brandeis declared
wiretapping to be a violation of the Fourth Amendment and set out his
now infamous prophecy:
“The evil incident to invasion of the privacy
of the telephone is far greater than that involved in
tampering with the mails. Whenever a telephone
line is tapped, the privacy of the persons at both
ends of the line is invaded, and all conversations
between them upon any subject, and although
proper, confidential, and privileged, may be
overheard. Moreover, the tapping of one man's
telephone line involves the tapping of the
telephone of every other person whom he may call,
or who may call him. As a means of espionage,
writs of assistance and general warrants are but
puny instruments of tyranny and oppression when
compared with wire tapping.
Experience should teach us to be most on
our guard to protect liberty when the government's
purposes are beneficent. Men born to freedom are
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naturally alert to repel invasion of their liberty by
evil-minded rulers. The greatest dangers to liberty
lurk in insidious encroachment by men of zeal,
well-meaning but without understanding.”
21. As experience has now shown, the dissent of Justice Brandeis
was truly, to borrow the words of Chief Justice Hughes, “an appeal to
the brooding spirit of the law, to the intelligence of a future
day, with the hope that a later decision may possibly correct
the error which the dissenting Judge believes the court to have
been betrayed.” The majority view in the case of Olmstead that the
4th Amendment protected persons and not places gave room for a
very serious criticism in the case of Lopez Vs. United
States [reported in 1963 SCC OnLine US SC 117 : 373 US 427
(1963)] wherein it was observed thus:
“63. But even without empirical studies, it
must be plain that electronic surveillance imports a
peculiarly severe danger to the liberties of the
person. To be secure against police officers'
breaking and entering to search for physical
objects is worth very little if there is no security
against the officers' using secret recording devices
to purloin words spoken in confidence within the
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four walls of home or office. Our possessions are of
little value compared to our personalities.”
22. The wheel turned a full circle when the dissenting opinion of
Justice Brandeis was declared as the law in the case of Katz Vs.
United States [reported in 389 US 347 (1967)] wherein the
question was as to whether a public telephone booth was a
constitutionally protected area so that the evidence obtained by
attaching an electronic listening recording device to the top of such a
booth would violate the right to privacy of the user of the
booth. Overruling the majority view in the case of Olmstead, it was
held thus:
“The Government stresses the fact that the
telephone booth from which the petitioner made
his calls was constructed partly of glass, so that he
was as visible after he entered it as he would have
been if he had remained outside. But what he
sought to exclude when he entered the booth was
not the intruding eye—it was the uninvited ear. He
did not shed his right to do so simply because he
made his calls from a place where he might be
seen. No less than an individual in a business
office, [ Silverthorne Lumber Co. v. United States,
251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319.] in a
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friend's apartment, [ Jones v. United States, 362
U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697.] or in a
taxicab, [ Rios v. United States, 364 U.S. 253,
80 S.Ct. 1431, 4 L.Ed.2d 1688.] a person in a
telephone booth may rely upon the protection of
the Fourth Amendment. One who occupies it, shuts
the door behind him, and pays the toll that permits
him to place a call is surely entitled to assume that
the words he utters into the mouthpiece will not be
broadcast to the world. To read the Constitution
more narrowly is to ignore the vital role that the
public telephone has come to play in private
communication.
Once this much is acknowledged, and once it
is recognized that the Fourth Amendment protects
people and not simply 'areas'—against
unreasonable searches and seizures it becomes
clear that the reach of that Amendment cannot
turn upon the presence or absence of a physical
intrusion into any given enclosure.
….The Government's activities in
electronically listening to and recording the
petitioner's words violated the privacy upon which
he justifiably relied while using the telephone
booth and thus constituted a 'search and seizure'
within the meaning of the Fourth Amendment. The
fact that the electronic device employed to achieve
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that end did not happen to penetrate the wall of
the booth can have no constitutional significance
These considerations do not vanish when the
search in question is transferred from the setting of
a home, an office, or a hotel room to that of a
telephone booth. Wherever a man may be, he is
entitled to know that he will remain free from
unreasonable searches and seizures.”
Thus, it was concluded that the unauthorized surveillance by way of
wiretapping would violate the 4th Amendment by constituting an
unlawful search and seizure.
Development of Right to Privacy in India :
23. It is well known that in India, the Supreme Court had initially
taken the view that there existed no right to privacy akin to the
4th Amendment to the U.S. Constitution. In the United States, privacy
was located in the 4thAmendment as an aspect of the guarantee
against unreasonable searches and seizures. In the case of M.P.
Sharma, a Bench of 8 learned Judges of the Hon'ble Supreme Court
declared that there existed no fundamental right to privacy in The
Constitution. The focus of the Court was entirely on Article 20(3) and
it was held thus:
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“A power of search and seizure is in any
system of jurisprudence an 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.”
24. We must give due allowance for this approach since this
decision was delivered in the heydays of the A.K Gopalan
doctrine [A.K.Gopalan Vs. State of Madras (reported in AIR
1950 SC 27)], which viewed the fundamental rights as isolated silos.
It was not until 1970 in R.C.Cooper’s case [R.C.Cooper Vs. Union
of India (reported in AIR 1970 SC 564)] that the fluidity of the
various parts within the context of fundamental rights and the
constitutional law were explicitly recognized.
25. In the decision of the Hon'ble Supreme Court in
Kharak Singh, the question before the 6 Judges' Constitution Bench
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was as to whether Chapter 22 of the U.P.Police Regulations
violated Articles 19(1)(d) and 21 of The Constitution. The majority
view of N.Rajagopala Ayyangar,J struck down Regulation 236(b) of
the said Regulations, which authorized “domiciliary visits” i.e., the
policeman or chaukidar enters the house and knocks at the door at
night and after awakening the suspect makes sure of his presence at
his home as being violative of Article 21 of The Constitution. However,
the Majority still refused to recognize the right to privacy as an aspect
of personal liberty under Article 21. N.Rajagopala Ayyangar,J
observed thus:
“Nor do we consider that Article 21 has any
relevance in the context as was sought to be
suggested by learned Counsel for the petitioner. As
already pointed out, the right of privacy is not a
guaranteed right under our Constitution and
therefore the attempt to ascertain the movements
of an individual which is merely a manner in which
privacy is invaded is not an infringement of a
fundamental right guaranteed by Part III.”
Subba Rao,J took a slightly different path. The learned Judge viewed
privacy as an integral part of personal liberty under Article 21. The
learned Judge held thus:
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“It is true our Constitution does not
expressly declare a right to privacy as a
fundamental right, but the said right is an essential
ingredient of personal liberty. Every democratic
country sanctifies domestic life; it is expected to
give him rest, physical happiness, peace of mind
and security. In the last resort, a person's house,
where he lives with his family, is his “castle”; it is
his rampart against encroachment on his personal
liberty. The pregnant words of that famous Judge,
Frankfurter J., in Wolf v. Colorado [[1949] 238 US
25] pointing out the importance of the security of
one's privacy against arbitrary intrusion by the
police, could have no less application to an Indian
home as to an American one. If physical restraints
on a person's movements affect his personal
liberty, physical encroachments on his private life
would affect it in a larger degree. Indeed, nothing
is more deleterious to a man's physical happiness
and health than a calculated interference with his
privacy. We would, therefore, define the right of
personal liberty in Article 21 as a right of an
individual to be free from restrictions or
encroachments on his person, whether those
restrictions or encroachments are directly imposed
or indirectly brought about by calculated measures.
It so understood, all the acts of surveillance under
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Regulation 236 infringe the fundamental right of
the petitioner under Article 21 of the Constitution.”
26. Despite these observations, a Division Bench of this Court, in
the case of RamkishanSrikishan Jhaver Vs. Commissioner of
Commercial Taxes [reported in (1965) 57 ITR 664], found
themselves bound by the majority view of the Hon'ble Supreme Court
in the case of Kharak Singh and was not prepared to go so far as to
recognize the right to privacy on par with the protection guaranteed
under the Fourth Amendment in the United States was concerned.
27. In the decision of the Hon'ble Supreme Court in Gobind,
Regulations 855 & 856 of the Madhya Pradesh Police Regulations
authorizing domiciliary visits were questioned as being violative of
Articles 19(1)(d) and 21 of The Constitution. Justice Mathew, who
delivered the opinion of a unanimous Three Judges' Bench, began by
observing thus:
"The question whether right to privacy is
itself a fundamental right flowing from the other
fundamental rights guaranteed to a citizen under
Part III is not easy of solution.”
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As regards the competing claims of privacy and State interest, it was
observed:
“There can be no doubt that privacy-dignity
claims deserve to be examined with care and to be
denied only when an important countervailing
interest is shown to be superior. If the Court does
find that a claimed right is entitled to protection as
a fundamental privacy right, a law infringing it
must satisfy the compelling State interest test.
Then the question would be whether a State
interest is of such paramount importance as would
justify an infringement of the right. Obviously, if
the enforcement of morality were held to be a
compelling as well as a permissible State interest,
the characterization of a claimed right as a
fundamental privacy right would be of far less
significance. The question whether enforcement of
morality is a State interest sufficient to justify the
infringement of a fundamental privacy right need
not be considered for the purpose of this case and
therefore we refuse to enter the controversial
thicket whether enforcement of morality is a
function of State.”
28. In the decision of the Hon'ble Supreme Court in Gobind,
though the relevant Regulations were ultimately saved by reading it
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down narrowly, it appears that the Hon'ble Supreme Court did,
however, proceed on the basis that a right to privacy did exist, which
is evident from the following observation:
“The right to privacy in any event will
necessarily have to go through a process of case-
by-case development. Therefore, even assuming
that the right to personal liberty, the right to move
freely throughout the territory of India and the
freedom of speech create an independent right of
privacy as an emanation from them which one can
characterize as a fundamental right, we do not
think that the right is absolute.”
29. By the 1990’s, it had become clear that the Majority view in
the decision of the Hon'ble Supreme Court in Kharak Singh had been
severely watered down almost to the point of it being denuded of its
status as a precedent. In the decision of the Hon'ble Supreme Court
in R.Rajagopal, a Two Judges' Bench declared that the right to
privacy is implicit in the right to life and liberty guaranteed to the
citizens of this country by Article 21. It characterized the right as a
“right to be let alone”.
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30. The next decision of the Hon'ble Supreme Court in People's
Union for Civil Liberties is a watershed in the development of the
Constitutional Right to privacy in India. This was a petition under
Article 32 of The Constitution challenging the validity of Section 5(2) of
the Act and seeking issuance of guidelines in the wake of
indiscriminate tapping of telephones of members of the opposition. The
Court pointed out the problem as under :
“Telephone-tapping is a serious invasion of
an individual's privacy. With the growth of highly
sophisticated communication technology, the right
to hold telephone conversation, in the privacy of
one's home or office without interference, is
increasingly susceptible to abuse. It is no doubt
correct that every Government, howsoever
democratic, exercises some degree of sub rosa
operation as a part of its intelligence outfit but at
the same time citizen's right to privacy has to be
protected from being abused by the authorities of
the day.”
It then proceeded to declare:
“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 attracted.
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The said right cannot be curtailed “except
according to procedure established by law”.”
The Court proceeded to hold that in the context of phone tapping, an
invasion into the right to privacy was through a procedure established
by law ie., Section 5(2) of the Act. It also laid down certain procedural
safeguards by way of directions under Article 142 of The Constitution,
which will be referred to and dealt with in another part of this order.
31. At this juncture, it should be observed that the decision of
the Hon'ble Supreme Court in M.P.Sharma was by a Bench of 8
Judges and the decision of the Hon'ble Supreme Court in
Kharak Singh was by a Bench of 6 Judges. Although the decisions of
the Hon'ble Supreme Court in Gobind, R.Rajagopal and People's
Union for Civil Liberties had declared the right to privacy to be a
part of Article 21, this view could not be definitively proclaimed since
the shadow in the decision of M.P.Sharma still hung over these
decisions. Matters eventually came to head when the matter was
referred to a Nine Judges' Bench of the Hon'ble Supreme Court by a
Constitution Bench in K.S.Puttaswamy (Privacy-9J) Vs. Union of
India [reported in 2017 (10) SCC 1].
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32. It is not necessary to burden this order with the various
scholarly opinions in the Nine Judges Bench judgment of the Hon'ble
Supreme Court in the case of in K.S.Puttaswamy (Privacy-9J)
except to state that it was unanimously declared that the decision of
the Hon'ble Supreme Court in M.P.Sharma to the extent that it held
that the right to privacy is not protected by The Constitution stood
overruled. Approving the decisions of the Hon'ble Supreme Court
in Gobind and People's Union for Civil Liberties, it was
unanimously declared that 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, as Justice S.K Kaul, in his concurring judgment,
poignantly remarks:
“Let the right to 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.”
33. Thus, there is no doubt that the right to privacy is an integral
facet of the right to life and personal liberty under Article 21 of The
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Constitution. We may, therefore take as settled that where the State
seeks to place any restriction on an individual’s right to privacy, it
must be protected unless it is shown that such restriction
is authorized under a procedure established by law.
34. The next question is as to whether phone tapping constitutes
a violation of the right to privacy under Article 21. The answer to this
question is no longer res integra. In the decision of the Hon'ble
Supreme Court in People's Union for Civil Liberties, it was held
thus:
“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
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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.”
From a reading of the above, there can be no doubt that telephone
tapping would infringe Article 21 unless such infringement has the
sanction of a procedure established by law.
Does the impugned order meet the requirements of Section
5(2) of the Act :
35. The “law”, which is referred to in the context of phone
tapping in the decision of the Hon'ble Supreme Court in People's
Union for Civil Liberties, is the Act namely the Telegraph Act, 1885.
It is, therefore, necessary to first set out the relevant provisions of this
Act as they stood at different points in time. When the Act was
originally enacted, Section 5 read as follows:
“5. (1) On the occurrence of any public
emergency, or in the interest of the public safety,
the Governor General in Council or a Local
Government, or any officer specially authorised in
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this behalf by , the Governor General in Council,
may
(a) take temporary possession of any
telegraph established, maintained or worked by
any person licensed under this Act ; or
(b) order 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 intercepted or detained, or
shall be disclosed to· the Government or an officer
thereof mentioned in the order.
(2) If any doubt arises as to the existence of
a public emergency, or whether any act done
under Sub-Section (1) was in the interest of the
public safety, a certificate signed by a Secretary to
the Government of India or to the Local
Government shall be conclusive proof on the
point.”
36. The Act, 1885, being a pre-constitutional legislation, several
doubts arose as to the constitutionality of its provisions particularly in
the light of the unbridled power it conferred contrary to the freedoms
guaranteed under Article 19 of The Constitution. In its 38th Report on
the Indian Post Office Act, 1898, the Law Commission of India dealt
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with the in pari materia provisions in Section 26 of the said Act, which
permitted interception of postal articles on the ground of public
emergency or public safety. Section 26 of the Indian Post Office
Act, 1898 was modelled on the lines of Section 5 of the Act. The Law
Commission recommended that both Section 5 of the Act, 1885 and
Section 26 of the Indian Post Office Act, 1898 be amended so as to
bring it in line with the permissible restrictions set out in Article 19(2)-
(6) of The Constitution.
37. Pursuant to these recommendations, Section 5 of the Act,
1885 was substituted by Central Act 38 of 1972 to read as follows :
“Power for Government to take possession of
licensed telegraphs and to order interception of
messages.—
(1) 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,
take temporary possession (for so long as the
public emergency exists or the interest of the
public safety requires the taking of such action) of
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any telegraph established, maintained or worked
by any person licensed under this Act.
(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 intercepted or detained, or
shall be disclosed to the Government making the
order or an officer thereof mentioned in the order:
Provided that 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.”
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It would be evident that the effect of the amendment was to bring
Section 5(1) & (2) of the Act, 1885 in line with the permissible heads
of restrictions under Article 19 of the Constitution.
38. The scope of Section 5(1) of the Act came up for
consideration before the Hon'ble Supreme Court in Hukam Chand
Shyam Lal wherein it was observed thus:
“.........Firstly, the occurrence of a "public
emergency” is the sine qua non for the exercise of
power under this section. As a preliminary step to
the exercise of further jurisdiction under this
section the Government or the authority concerned
must record its satisfaction as to the existence of
such an emergency. Further, the existence of the
emergency which is a pre-requisite for the exercise
of power under this section, must be a “public
emergency” and not any other kind of emergency.
The expression public emergency has not been
defined in the statute, but contours broadly
delineating its scope and features are discernible
from the section which has to be read as a whole.
In Sub-Section (1) the phrase ‘occurrence of any
public emergency’ is connected with and is
immediately followed by the phrase “or in the
interests of the public safety”.
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These two phrases appear to take colour from each other. In the first
part of Sub-Section (2), those two phrases again occur in association
with each other and the context further clarifies with amplification that
a “public emergency” within the contemplation of this Section is
one, which raises problems concerning the interest of the public
safety, the sovereignty and integrity of India, the security of
the State, friendly relations with foreign States or public order
or the prevention of incitement to the commission of an
offence.
39. The provisions of Section 5(2) of the Act were elaborately
considered by the Hon'ble Supreme Court in the case of People's
Union for Civil Liberties wherein it was observed in paragraphs 28 to
30 as under:
“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 interest of
public safety demands, the authorities have no
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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.
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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.
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
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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".
40. From a reading of the decisions of the Hon'ble Apex Court in
Hukam Chand Shyam Lal and People's Union for Civil Liberties,
it is clear that to invoke Section 5(2) of the Act, the following
conditions must be cumulatively satisfied:
• The first step under Section 5(2) is the
occurrence of a public emergency or where
interest of public safety so demands. 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. Neither the
occurrence of public emergency nor the
interest of public safety is a secretive condition
or situation. Either of the situations would be
apparent to a reasonable person.
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• It is only when the above two
situations exist that the Authority may then
pass an order directing interception of
messages after recording its satisfaction that it
is necessary or expedient so to do in the
interest of (i) the 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.
• In other words, unless and until there
is a public emergency or it is necessary in the
interests of public safety, 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.
41. Keeping these principles in mind, it is seen that in the instant
case, a perusal of the impugned order would show that it has been
passed purportedly in exercise of powers under Section 5(2) of the Act
and Rule 419-A of the Rules. The order reads as follows:
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"TOP SECRET
No 14/3/97-CBI
MINISTRY OF HOME AFFAIRS
(Government of India)
ORDER
1. Whereas as per provision in Sub-Rule (1)
of Rule 419-A of the Indian Telegraph Rules, 1951
notified on 01.03.2007 as Indian Telegraph
Amendment Rules, 2007 framed in exercise of
powers conferred by Section 7 of the Indian
Telegraph Act, 1885 (13 of 1885), the Secretary,
Ministry of Home Affairs, Government of India has
been authorized to exercise powers of the Central
Government under Sub-Section (2) of Section 5 of
the Indian Telegraph Act, 1885 (13 of 1885).
2. Now, therefore, I, Union Home Secretary,
being satisfied that, for reasons of public safety, it
is necessary and expedient to do in the interests of
public order and for preventing the incitement to
the commission of an offence hereby direct that
any telephone message relating to clandestine
contact/movement/activity to and from ********
shall be intercepted and disclosed to the Director,
CBI.
3. I am further satisfied that it is necessary
to monitor this telephone as the information
cannot be acquired through any other reasonable
means.
4. This order shall remain in force for a
period not exceeding 60 days from the date ie.,
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04.07.2011 and in ‘total’ it is not exceeding the
180 days limit of the Sub-Rule 419A(6) of the
Indian Telegraph Act, 1885.
(R.KSingh)
Secretary to the Govt of India
Ministry of Home Affairs
New Delhi
New Delhi
Dated : 12.08.2011”
42. A reading of the impugned order shows that the Secretary to
Government has mechanically repeated the wordings of Section 5(2)
of the Act without adverting to any factual basis. 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. This is all the more important since the order passed under
Section 5(2) of the Act by the Secretary is subject to a review under
Rule 419-A(17) of the Rules before the Review Committee.
43. There appears to be no serious application of mind by the
first respondent since the order recites that it is passed for “reasons
of public safety”, which the Court is required to presume is “in the
interests of public safety” as provided under Section 5(2) of the Act.
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But, the invocation of this ground in this case is clearly unsustainable
since the Hon'ble Supreme Court in the case of People's Union for
Civil Liberties clearly held as follows:
“The expression “public safety” means the
state or condition of freedom from danger or risk
for the people at large. 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.”
44. Admittedly, the entire operation in this case involves covert
surveillance of the mobile phone of the petitioner and
consequent interception of conversations between the accused
persons. This was clearly a covert operation. The term ‘interests of
public safety’ as explained in the decision of the Hon'ble Supreme
Court in People's Union for Civil Liberties contemplates a situation,
which is not secretive and is apparent to a reasonable person. By no
stretch of imagination, can the facts of this case be characterised to
meet the aforesaid requirements so as to bring it within the rubric of
‘interests of public safety’ as explained by the Supreme Court.
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45. In similar circumstances, a learned Single Judge of the
Karnataka High Court, in the case of Dr.S.M.Mannan Vs. CBI
[reported in 2024 SCC OnLine Kar 80], refused to hold that covert
surveillance in a case of illegal gratification would come within the
scope of Section 5(2) of the Act. It was observed as follows:
“The order is dated 18-09-2019. It is this
that has to be placed before the Review
Committee. The order is passed invoking
subsection (2) of Section 5 of the Telegraph Act.
The order reads that Union Home Secretary is
satisfied that it was necessary and expedient in
public safety to order interception. What public
safety was involved in the case at hand is not
known, and is not discernible anywhere either in
the order or in the requisition. I fail to understand
what public safety or public emergency was
involved in the case at hand. The allegation is with
regard to acceptance of illegal gratification. If that
be so, a drastic measure of wiretapping could not
have been permitted against the petitioner, as
admittedly he did not involve any of the trait
necessary under sub-section (2) of Section 5 of the
Act and its interpretation by the Apex Court.
Therefore, wiretapping is loosely permitted against
the petitioner. This finding that the act of
wiretapping is illegal would cut at the root of the
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matter and obliterate all the acts or steps taken by
the prosecution in its aftermath. I deem it
appropriate to notice if there is any semblance of
merit in the allegation as well.”
46. Realizing this perhaps, the first respondent appears to have
taken an alternative stand before this Court. In the counter affidavit
filed before this Court, the 1st respondent has contended as under:
“4. I deny the contention raised in
paragraph 5 of the affidavit. It humbly submit that
the respondent has acted strictly in accordance
with the Indian Telegraph Act, 1885 read with
Indian Telegraph Rules, 1951 (amended vide
Indian Telegraphic (Amended Rules, 1999) and
Rules made pursuant to the Indian Telegraphic
(Amended Rules). I submit that the impugned
order dated 12.08.2011 passed by the Respondent
in the Proceedings No 14/3/97-CBI is valid since
the Petitioner’s telephonic conversation is unlawful
to commit an offence, hence it was intercepted in
the interest of public safety and preventing further
incitement by the Petitioner to the commission of
an Offence. …………”
The first respondent has thereafter made a reference to the decision of
the Hon'ble Supreme Court in Hukam Chand Shyam Lal and stated
as follows:
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“6……..That it is respectfully submitted that
the Respondent herein has used the mechanism of
telephone tapping only on the occurrence of the
aforesaid circumstances mentioned in Hukum
Chand Shyam Lal’s case namely on the occurrence
of any “public emergency” or in the “interest of
public safety”
47. He would further submit that the terms ‘public emergency’
and ‘public safety’ have been interpreted by the Hon’ble Supreme
Court to mean problems concerning the interests of the public safety,
the sovereignty and integrity of India, the security of the State,
friendly relations with Foreign States or public Order or for preventing
the incitement to the commission of an offence and hence, the
allegation questioning the validity of the order passed by the first
respondent is irrational.
48. The counter affidavit, instead of lending clarity, unfortunately
exposes the flawed understanding of the first respondent. While the
impugned order invokes the ground of 'interests of public safety’,
the counter affidavit of the first respondent seeks to invoke ‘public
emergency’ as a ground to validate the exercise of powers under
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Section 5(2) of the Act. It is too well settled that the grounds for
passing a statutory order cannot be improved upon in a counter
affidavit (See M.S.Gill Vs. Chief Election Commissioner [reported
in AIR 1978 SC 851].
49. That apart, even if one were to accept the contention at face
value, it cannot carry the case of the first respondent any further since
the Hon'ble Supreme Court in the case of People's Union for Civil
Liberties termed a public emergency to mean "the prevailing of a
sudden condition or state of affairs affecting the people at
large calling for immediate action.” Admittedly, that is not the
case here. The facts of this case do not disclose any emergency at
all let alone a public emergency. This is a case of covert surveillance in
a case involving alleged receipt of illegal gratification. If the arguments
were to be accepted, then every case under the Prevention of
Corruption Act, 1988 could be termed as being opposed to the
interests of public safety. By its very nature of things, the facts in this
case cannot come within rubric of public emergency or interests of
public safety as expounded by the Hon'ble Supreme Court.
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50. It was also sought to be contended that phone tapping was
essential to preserve public order by preventing and detecting crime.
The expression “public order” is well known. In the decision of the
Hon'ble Supreme Court in Commissioner of Police Vs. C.Anita
[reported in 2004 (7) SCC 467], it was held thus:
“public order” has a narrower ambit, and
public order could be affected by only such
contravention which affects the community or the
public at large. Public order is the even tempo of
life of the community taking the country as a whole
or even a specified locality. The distinction between
the areas of “law and order” and “public order” is
one of the degree and extent of the reach of the
act in question on society. It is the potentiality of
the act to disturb the even tempo of life of the
community which makes it prejudicial to the
maintenance of the public order. If a contravention
in its effect is confined only to a few individuals
directly involved as distinct from a wide spectrum
of the public, it could raise problem of law and
order only. It is the length, magnitude and
intensity of the terror wave unleashed by a
particular eruption of disorder that helps to
distinguish it as an act affecting “public order” from
that concerning “law and order”
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51. Thus, the effect of breach of public order would involve
a wide spectrum of the public and does not involve a covert operation
hatched and carried out in secrecy such as the case on hand. 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.
52. Realizing this legal position, the CBI, in its counter affidavit,
would seek to attack the very basis of the decision of the Hon'ble
Supreme Court in People's Union for Civil Liberties, by contending,
inter alia, in paragraph 10 as hereunder:
"Restricting the concept of public safety to
the mere “situations that would be apparent to the
reasonable person” will exclude most of the actual
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threats which present the most grave
circumstances to the public safety like terrorist
attacks, corruption at high places, economic and
organized crimes, most of which are hatched in the
most secretive of manners.”
53. As stated above, the Hon'ble Supreme Court, in the case of
People's Union for Civil Liberties, unequivocally set out the
following in paragraph 28:
“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.”
54. It should be pointed out that paragraph 28 of the decision of
the Hon'ble Supreme Court in People's Union for Civil Liberties has
been approved by the Constitution Bench of the Supreme Court in the
case of K.S.Puttaswamy (Aadhaar-5J) Vs. Union of India
[reported in 2019 (1) SCC 1] in the context of Section 33(2) of the
Aadhar Act, 2016, which permits disclosure of identity information and
authentication records in the interest of national security. Therefore,
the contention of the CBI that the observations in the decision of the
Hon'ble Supreme Court in People's Union for Civil Liberties require
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change is not an argument that can be countenanced before this
Court.
55. As pointed out by the learned counsel for the petitioner, the
contention of the CBI is clearly a ruse as the Government was very
much aware of the existing state of the law when it passed the
impugned order on 12.8.2011.
56. The attention of this Court was invited to a Press Note dated
25.4.2011, which was passed barely 4 months before the impugned
order. It would read as follows:
"Press Information Bureau
Government of India
Cabinet Secretariat
25-April-2011 19:24 IST
Clarifications on the Report on Tapping of
Telephones
There have been a number of articles on the
Cabinet Secretary’s report regarding tapping of
telephones which appeared in some section of the
media. It is important that the correct factual
position is presented to the media.
The provisions for authorization of
interception are contained in Section 5(2) of Indian
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Telegraph Act, 1885 read with Rule 419(A) of the
Indian Telegraph Rules, 1951 as well as Section 69
of the Information Technology Act, 2000 read with
Information Technology (Directions for Interception
or Monitoring or Decryption of Information) Rules,
2009.
The Hon’ble Supreme Court has upheld the
constitutional validity of interceptions and
monitoring under Section 5(2) of the Act through
its order dated 18.12.1996 in Writ Petition (C)
No.256/1991 by People’s Union for Civil Liberties
(PUCL) Vs. Union of India. It has also observed
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”, and accordingly, held that telephone
tapping would infringe the Right to Life and Right
to Freedom of Speech & Expression enshrined in
Articles 21 and 19(1)(a) respectively of the
Constitution of India, unless it is permitted under
the procedure established by law. The Hon’ble
Court further observed that Section 5(2) of the Act
clearly provides that ‘occurrence of any public
emergency’ or ‘interest of public safety’ is a sine
qua non for the application of these
provisions. Neither of these are secretive
conditions or situations. Either of the
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situations would be apparent to a reasonable
person.
In this regard, the Hon’ble Court has
recalled its observations in the case of Hukum
Chand Shyamlal Vs. Union of India and others,
1976 stating that ‘economic emergency’ is not one
of those matters expressly mentioned in the
statute, and further that mere ‘economic
emergency’ may not necessarily amount to a
‘public emergency’ and justify action under Section
5(2) of the Act, unless it raises problems relating
to the matters indicated in the section. ‘Public
emergency’ would mean the prevailing of a sudden
condition or state of affairs affecting the people at
large calling for immediate action. It is one which
raises problems concerning the interest of public
safety, the sovereignty and integrity of India, the
security of the State, friendly relations with
sovereign States or public order or the prevention
of incitement to the commission of an offence.
‘Public Safety’ means the state of condition of
freedom from danger or risk for the people at
large. It has been stated further that when
either of these two conditions are not in
existence, authorities cannot resort to
telephone tapping, even though there is
satisfaction that it is necessary or expedient
to do so in the interests of sovereignty and
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integrity of India, security of the State,
friendly relations with sovereign States,
public order or for preventing incitement to
the commission of an offence.
In the light of the above, the Hon’ble
Supreme Court gave directions covering the issue
of institutional safeguards to be put in place in
respect of interception under Section 5(2) of the
Indian Telegraph Act, which was incorporated in
terms of Rule 419(A) of the Indian Telegraph Rule,
1951.
In the light of recent controversies on
account of interception of certain telephone
numbers by a designated authorized agency, which
were extensively reported by media, the Hon’ble
Prime Minister directed the Cabinet Secretary to
look into the Rules, Procedures and Mechanism to
avoid their misuse. After examining all the relevant
issues, Cabinet Secretary recommended further
comprehensive refinement of Rules and
Procedures, in addition to providing for stronger
penal provisions for violations by amending the
law. It was also recommended to either remove
the CBDT from the list of authorized agencies in
respect of telephone interception as the income tax
laws fall within civil jurisdiction and do not always
impinge on the public safety or to specify
stipulations regarding the extent of surveillance
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allowed to the agency, including the level at which
requests are to be made for authorization by the
Home Secretary. It is clarified that the law
does not permit use of telephone tapping and
monitoring of conversations to merely detect
tax evasion. There are specific laws and rules that
contain provisions for detection of unaccounted
wealth and evasion of taxes, and interception of
telephones without ‘public emergency’ or ‘public
safety’ being at stake is not in accordance with the
law, as exhaustively interpreted by the Hon’ble
Supreme Court. The recommendations made by
the Cabinet Secretary reiterate this established
legal position, which should not be seen in terms of
conflicts between individuals or interest groups.”
57. The aforesaid Press Note is self-explanatory and correctly
sums up the Government’s own understanding of the position of law
laid down in the decision of the Hon'ble Supreme Court in People's
Union for Civil Liberties, which states that no phone tapping can be
authorized in the absence of a public emergency or in the interests of
public safety even though there is satisfaction that it is necessary or
expedient to do so in the interests of the sovereignty and integrity of
India, the security of the State, friendly relations with sovereign
States, public order or for preventing incitement to the commission of
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an offence. It has also understood the legal position that neither of the
above conditions viz., ‘public emergency’ or in the ‘interests of
public safety’ is a secretive condition or situation. Though a press
note is not a legal instrument, it is well settled that such documents
reflect the understanding of the legal provisions by the Executive.
58. In the decision of the Hon'ble Supreme Court in R & B
Falcon (A) Pty Ltd. Vs. CIT [reported in 2008 (12) SCC 466], it
was pointed out as follows :
"34. Rules of executive construction in a
situation of this nature may also be applied. Where
a representation is made by the maker of
legislation at the time of introduction of the Bill or
construction thereupon is put by the executive
upon its coming into force, the same carries a
great weight."
59. It is, therefore, not open to the CBI to say that the
requirement of public emergency and the interests of public safety
should be confined to situations, which are secretive when the
Government themselves have understood the scope of Section 5(2) of
the Act only in that manner.
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60. The CBI has also gone on record to state in paragraph 16 of
its counter affidavit that interception was necessary since it was
required to prevent the offence of corruption.
61. However noble and well-intended the objective may be,
tapping of phones de-hors a ‘public emergency’ or in the ‘interests
of public safety’ as stipulated in Section 5(2) of the Act cannot
be legally justified as the law presently stands.
62. The learned Additional Solicitor General of India would,
however, request this Court to expand the scope of Section 5(2) of the
Act to accommodate cases of this nature.
63. This Court is unable to accept this submission since the
boundaries for invasion of a fundamental right through the medium of
enacted law is a function of the Legislature and not the Court. Section
5(2) of the Act has set out the Lakshman Rekha and the role of the
Court is confined to seeing as to whether the threshold is not
crossed. As sentinels on the qui vive, the Courts are gatekeepers of
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Fundamental Rights. Gate keepers cannot become gate makers to
reposition the gates as and when the Executive requires without the
intervention of the Legislature as pointed out by H.R.Khanna,J in the
case of Godavari Sugar Mills Ltd. Vs. S.B.Kamble [reported in
1975 (1) SCC 696], which reads thus :
“Any provision which has the effect of
making an inroad into the guarantee of
fundamental rights in the very nature of things
should be construed very strictly and it would not,
in our opinion, be permissible to widen the scope
of such a provision or to extend the frontiers of the
protected zone beyond what is warranted by the
language of the provision.”
64. That apart, the above contention cannot be accepted since
this Court is bound by the interpretation put upon Section 5(2) of the
Act in paragraph 28 of the decision of the Hon'ble Apex Court in
People's Union for Civil Liberties, which has also been approved by
the Constitution Bench decision of the Hon'ble Supreme Court in K.S.
Puttaswamy (Aadhaar-5J) Vs. Union of India [reported in 2019
(1) SCC 1].
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65. The decision of the Hon'ble Supreme Court in People's
Union for Civil Liberties has been cited with approval in the decision
of the Hon'ble Apex Court in Anuradha Bhasin Vs. Union of India
[reported in 2020 (3) SCC 637]. This case is concerned with the
validity of the Temporary Suspension of Telecom Services (Public
Emergency or Public Safety) Rules, 2017 framed under Section 7 of
the Act. These Rules permit the restriction of telecom services
including access to the Internet. Rule 2(2) the said Suspension Rules
contains safeguards, which are akin to Rule 419-A of the Rules. One of
the safeguards is the forwarding of the reasoned order of the
Competent Authority to a Review Committee, which has been set up
under the said Suspension Rules within one working day. Rule 2(6)
requires the Review Committee concerned to meet within five working
days of issuance of the order suspending the telecom services and
record its findings as to whether the order issued under the said
Suspension Rules is in accordance with the provisions of the main
Statute viz. Section 5(2) of the Act.
66. In the above context, the Hon'ble Supreme Court was called
upon to examine the circumstances, under which, an order could be
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justified under Section 5(2) of the Act. After referring to the decisions
of the Hon'ble Supreme Court in Hukam Chand Shyam Lal
and People's Union for Civil Liberties, it was observed in the
decision of the Hon'ble Supreme Court in Anuradha Bhasin as
hereunder:
“100. Keeping in mind the wordings of the
section, and the above two pronouncements of this
Court, what emerges is that the prerequisite for an
order to be passed under this sub-section, and
therefore the Suspension Rules, is the occurrence
of a “public emergency” or for it to be “in the
interest of public safety”. Although the phrase
“public emergency” has not been defined under the
Telegraph Act, it has been clarified that the
meaning of the phrase can be inferred from its
usage in conjunction with the phrase “in the
interest of public safety” following it. Hukam Chand
Shyam Lal case [Hukam Chand Shyam Lal v. Union
of India, (1976) 2 SCC 128] further clarifies that
the scope of “public emergency” relates to the
situations contemplated under the sub-section
pertaining to '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'.
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101. The word “emergency” has various
connotations. Everyday emergency, needs to be
distinguished from the type of emergency wherein
events which involve, or might involve, serious and
sometimes widespread risk of injury or harm to
members of the public or the destruction of, or
serious damage to, property. Article 4 of the
International Covenant on Civil and Political Rights,
notes that ‘[I]n time of public emergency which
threatens the life of the nation and the existence of
which is officially proclaimed…’. Comparable
language has also been used in Article 15 of the
European Convention on Human Rights which says
“In time of war or other public emergency
threatening the life of the nation”. We may only
point out that the “public emergency” is required to
be of serious nature, and needs to be determined
on a case-to-case basis.
102. The second requirement of Section 5(2)
of the Telegraph Act is for the authority to be
satisfied that it is necessary or expedient to pass
the orders in the interest 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, and must record reasons thereupon. The
terms “necessity” and “expediency” bring
along the stages an emergency is going to
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pass through usually. A public emergency
usually would involve different stages and the
authorities are required to have regard to the
stage, before the power can be utilised under
the aforesaid Rules. The appropriate balancing of
the factors differs, when considering the stages of
emergency and accordingly, the authorities are
required to triangulate the necessity of imposition
of such restriction after satisfying the
proportionality requirement.”
67. In view of the above discussions and having regard to the
meaning ascribed to the expressions ‘public emergency’ and
‘interests of public safety’ in paragraph 28 of the decision of the
Hon'ble Supreme Court in People's Union for Civil Liberties as
affirmed by the Constitution Bench of the Hon'ble Supreme Court in
K.S.Puttaswamy (Aadhaar-5J) Vs. Union of India [reported in
2019 (1) SCC 1], it is clear that in the facts on hand, the impugned
order does not pass muster under any of the two condition precedents
i.e., ‘public emergency’ and ‘interests of public safety’ required
for exercise of jurisdiction under Section 5(2) of the Act. Consequently,
the impugned order is, on the face of it, without jurisdiction and is
liable to be quashed on this short ground.
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Have the respondents complied with the procedural safeguards
set out in Rule 419-A of the Rules :
68. In the decision in People's Union for Civil Liberties, the
Hon'ble Supreme Court had issued various directions/procedural
safeguards under Article 142, which were required to be mandatorily
followed in all cases of phone tapping. These directions were
incorporated into the Rules as Rule 419-A by virtue of the Indian
Telegraph (Amendment) Rules, 2007.
69. Adverting to these Rules, it was submitted by Mr.Sharath
Chandran, learned counsel appearing on behalf of the petitioner that
Rule 419-A of the Rules required the intercepted material to be placed
before a Review Committee to examine as to whether the interception
was carried out in accordance with Section 5(2) of the Act. The
attention of this Court was drawn to Rule 419-A(17) to (19), which
reads as follows:
“(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 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
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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.
(19) The service providers shall destroy
records pertaining to directions for interception of
message within two months of discontinuance of
the interception of such messages and in doing so
they shall maintain extreme secrecy.”
70. The attention of this Court was also drawn to the decision of
the Hon'ble Supreme Court in Anuradha Bhasin wherein similar
procedural requirements as contained in the said Suspension Rules,
2017 framed under the Act were held to be mandatory.
71. In response, the learned Additional Solicitor General
adverted to paragraph 13 of the counter affidavit of the CBI, which
reads as follows:
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“It is pertinent to mention here that in the
present case, no further direction from the
Competent Authority communicating any direction
from the Review Committee, was conveyed, which,
inter alia, means that in addition to the order for
lawful interception received from the Union Home
Secretary ie., Competent Authority, no other order
was received by the CBI in this matter.”
In view of the above stand, it is clear that in the facts of this case, the
intercepted material was not placed before the Review Committee at
all.
72. In the decision of the Hon'ble Supreme Court in Anuradha
Bhasin, the Supreme Court considered a similar review mechanism
contemplated under Rule 2(2) of the said Suspension Rules, 2017. It
was held thus:
"96. The second requirement under Rule
2(2) is the forwarding of the reasoned order of the
competent authority to a Review Committee which
has been set up under the Suspension Rules,
within one working day. The composition of the
Review Committee is provided under Rule 2(5),
with two distinct Review Committees contemplated
for the Union and the State, depending on the
competent authority which issued the order under
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Rule 2(1). Rule 2(6) is the final internal check
under the Suspension Rules with respect to the
orders issued thereunder. Rule 2(6) requires the
Review Committee concerned to meet within five
working days of issuance of the order suspending
telecom services, and record its findings about
whether the order issued under the Suspension
Rules is in accordance with the provisions of the
main statute viz. Section 5(2) of the Telegraph
Act.”
73. Emphasizing on the mandatory nature of the procedural
safeguards, in the case of Anuradha Bhasin, the Supreme Court held
thus:
"106. We also direct that all the above
procedural safeguards, as elucidated by us, need
to be mandatorily followed. In this context, this
Court in Hukam Chand Shyam Lal case [Hukam
Chand Shyam Lal v. Union of India, (1976) 2 SCC
128] , observed as follows : (SCC p. 133, para 18)
'18. It is well settled that where a power is
required to be exercised by a certain authority in a
certain way, it should be exercised in that manner
or not at all, and all other amodes (sic) of
performance are necessarily forbidden. It is all the
more necessary to observe this rule where power
is of a drastic nature.…'
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(emphasis supplied)
This applies with even more force considering the
large public impact on the right to freedom of
speech and expression that such a broad-based
restriction would have.”
74. In view of the above, it is clear that the exercise of power
under Section 5(2) of the Act was coupled with a duty to forward the
same under Rule 419-A(17) of the Rules to examine as to whether the
jurisdictional requirements under Section 5(2) had been satisfied.
Admittedly, in the instant case, the intercepted material has not been
placed before the Review Committee at all. Thus, there has been a
complete go by of the compliance of the mandatory provisions of law.
75. The attention of this Court was drawn to a decision of a
learned Single Judge of the Andhra Pradesh High Court in the case
of K.L.D.Nagasree Vs. Government of India, Ministry of Home
Affairs [reported in 2006 SCC OnLine AP 1085 : (2007) 1 AP
L.J. 1] wherein considering the violation of Rule 419-A of the Rules, it
was observed thus:
“35. Keeping in view the object and purpose
of the said Rules as declared in People's Union For
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Civil Liberties's case (2 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.
76. 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 of the Rules, 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, which further reinforces 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.
77. At any rate, since the impugned order is also in
contravention of the substantive law as laid down in Sub-Section (2) of
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Section 5 of the Act and is declared illegal, the consequential action of
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.
78. It should be mentioned here that the judgment of the
learned Single Judge of the Andhra Pradesh High Court in
K.L.D.Nagasree has been affirmed by a Division Bench of the Andhra
Pradesh High Court in Government of India Vs. K.L.D.Nagasree
[reported in 2023 SCC Online AP 1834] and the special leave
petition filed by the CBI in S.L.P.(Criminal) No.5584 of 2025 was
also dismissed on 15.4.2025.
79. The decision of the Andhra Pradesh High Court was followed
by a Division Bench of the Bombay High Court in the case of Vinit
Kumar Vs. CBI [reported in 2019 SCC Online Bombay 3155]
wherein it was held as under :
“30. 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
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continuation of the earlier order. This action of
issuing successive orders or repeated orders under
sub-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 1st order dated
29th October 2009 is valid for 60 days. Before the
expiry thereof, order dated 18th December 2009 is
issued for further period of 60 days. And before
the expiry of this second order, third order dated
24th 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)."
80. In the instant case, now there is an admission by the
respondents that the records have been destroyed purportedly under
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Sub-Rule (18) of Rule 419-A of the Rules. The word “such” in Sub-
Rule (18), therefore, refers to the direction and/or to the intercepted
message referred to in the previous Sub-Rule namely Sub-Rule (17),
which is not in accordance with the provisions of Sub-Section (2) of
Section 5.
81. The findings of the Review Committee would be either
directions being in accordance with the provisions or not. If the
findings are in favour of the directions, i.e., if the directions conform to
the requirements of the provisions, no further step is contemplated.
However, if the findings are such that the directions are not in
accordance with the provisions, then Rule 419-A(17) of the Rules
further provides for setting aside the directions and ordering for
destruction of the copies of intercepted messages or class of
messages. Thus, the orders for destruction are contemplated in Rule
419-A(17) only if the directions so issued under Rule 419-A(1) for
interception are ultra vires Section 5(2) of the Act. 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.
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82. This Court may also add here that if the directions of the
Honb'le Apex Court in the case of People's Union for Civil Liberties,
which are now re-enforced and approved by the Hon'ble Apex Court in
the case of K.T.Puttaswamy (Aadhaar-5J) Vs. Union of India
reported in 2019 (1) SCC 1] 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 to privacy under Article 21 of The Constitution of
India. To declare that de-hors the fundamental rights, in the
administration of Criminal Law, it would amount to declaring the
Government Authorities to violate any directions of the Hon'ble
Supreme Court or mandatory Statutory Rules in order to secure
evidence against the citizens. It would also lead to manifest
arbitrariness and would promote the scant regard to the procedure and
fundamental rights of the citizens and the law laid down by the Apex
Court.
83. It was brought to the notice of the Court that this judgment
is now pending consideration before the Hon'ble Supreme Court.
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However, the same view has been taken by the Rajasthan High Court
in the case of Shashikant Joshi Vs. State of Rajasthan [reported
in 2023 SCC OnLine Rajasthan 1108 : (2023) 3 RLW
2333] and recently in the case of Rakesh Kumar Meena Vs. State
of Rajasthan [reported in 2025 SCC Online Rajasthan 448].
84. The CBI had pointed out that a learned Single Judge of this
Court had, in the case of Sanjay Bhandari, taken a different view.
85. But, a close look at the said decision would show that in
paragraph 11, the learned Single Judge of this Court has reproduced
the contentions in the counter affidavit of the CBI, which have been
once again repeated before this Court in the instant case. It is also
seen that the attention of the learned Single Judge was not drawn to
the fact that paragraph 28 of of the decision of the Hon'ble Supreme
Court in People's Union for Civil Liberties has been affirmed by the
Constitution Bench of the Hon'ble Apex Court in
K.S.Puttaswamy (Aadhaar-5J) Vs. Union of India [reported in
2019 (1) SCC 1]. Therefore, unless and until the requirements of
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Section 5(2) of the Act are met, the order put to challenge would be
unconstitutional.
86. In view of the fact that the intercepted material was not
placed before the Review Committee in a manner contemplated under
Rule 419-A(17) of the Rules for scrutinizing as to whether the
requirements of Section 5(2) of the Act were satisfied or not, it must
necessarily follow that the impugned order is also vitiated by non-
compliance with the mandatory requirements of the aforesaid
provisions.
What is the effect of evidence collected in violation of Section
5(2) of the Act ?
87. Mr.AR.L.Sundaresan, learned Additional Solicitor General of
India appearing on behalf of the respondents would submit that even
assuming that the order under Section 5(2) of the Act was without
jurisdiction, the evidence so collected is admissible since it is a well
settled proposition of law that even illegally collected evidence is
admissible provided it is relevant. He placed strong reliance on the
decision of the Hon'ble Supreme Court in R.M.Malkani.
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88. The aforesaid contention is based on the common law rule
laid down in R V. Leatham [reported in (1861) 8 Cox CC],
wherein Crompton,J said : “It matters not how you get it; if you
steal it even, it would be admissible”. This principle was reiterated
in R.M.Malkani and in Pooran Mal. Both these decisions were
rendered when the decision of the Hon'ble Apex Court in M.P.Sharma
was still good law and there was no right to privacy guaranteed under
Article 21.
89. In R.M.Malkani, the Hon'ble Supreme Court dealt with an
appeal against conviction. Considering an argument of the violation of
the right to privacy, it was held thus:
“There is no scope for holding that the
appellant was made to incriminate himself. At the
time of the conversation there was no case against
the appellant. He was not compelled to speak or
confess. 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 telephonic conversation of
an innocent citizen will be protected by Courts
against wrongful or highhanded interference by
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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
Courts will tolerate safeguards for the protection of
the citizen to be imperilled by permitting the police
to proceed by unlawful or irregular methods. In the
present case there is no unlawful or even irregular
method in obtaining the tape-recording of the
conversation.”
90. This decision may not aid the case of the respondents for
more than one reason. In the first place, the decision of the Hon'ble
Supreme Court in R.M.Malkani was a case of an appeal against
conviction where the presumption of innocence did not apply. It is in
this context that the Hon'ble Supreme Court had observed that the
protection against phone tapping is not available to a guilty citizen.
Here, the petitioner is only accused of an offence. The presumption of
innocence still applies in his favour.
91. Secondly, as pointed out above, the decision was rendered
during the time when the judgment of the Hon'ble Apex Court in
M.P.Sharma was holding the field. It has been pointed out by
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D.Y.Chandrachud,J in paragraph 51 of the decision in
K.S.Puttaswamy (Privacy-9J) Vs. Union of India [reported in
2017 (10) SCC 1] held that the decision in R.M.Malkani had
rejected the argument based on privacy under Article 21 by placing
reliance on the decision of the Majority in Kharak Singh. As already
seen, the decision in K.S.Puttaswamy (Privacy-9J) Vs. Union of
India [reported in 2017 (10) SCC 1] was significant because it (a)
overruled the majority view in the decision in Kharak Singh and (b)
affirmed the existence of a right to privacy under Article 21.
92. Thus, the jurisprudential basis of the decision of the Hon'ble
Apex Court in R.M.Malkani having been altered, it remains to be seen
as to what is the effect of the decision in K.S.Puttaswamy on the
evidence that is collected by unconstitutional methods. The question
was considered by the First Bench of this Court in SNJ Breweries
wherein it was observed there as follows:
“Thus, it needs to be examined if the recent
judgment of 9 Judge Bench in Puttaswamy's case
recognizing right to privacy to be part of Article 21
of the Constitution of India necessitates a revisit of
Pooran Mal, to see the impact of the judgment
in Puttaswamy with regard to the view that
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illegally obtained evidence can be used. We say so,
since violation of the safeguards relating to search
would now render the search not just illegal but
unconstitutional. The sequitur of an
unconstitutional action is that it is rendered void.”
Having observed as above, the First Bench of this Court remitted the
matter to the learned Single Judge for consideration of the said
issue. Where the tapping of phones is found to have been done in
violation of Section 5(2) of the Act, the order would be clearly
unconstitutional. An unconstitutional order is void under Article 13 and
no rights or liabilities can flow from it.
93. In the context of eschewing evidence, which have been
obtained through unconstitutional means, it is necessary to reproduce
the following observations of Holmes,J in Olmstead as hereunder :
“49. ………. I am aware of the often-repeated
statement that in a criminal proceeding the court
will not take notice of the manner in which papers
offered in evidence have been obtained. But that
somewhat rudimentary mode of disposing of the
question has been overthrown by Weeks v. United
States, 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed.
652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177,
and the cases that have followed it. I have said
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that we are free to choose between two principles
of policy. But if we are to confine ourselves to
precedent and logic the reason for excluding
evidence obtained by violating the Constitution
seems to me logically to lead to excluding evidence
obtained by a crime of the officers of the law.”
94. Leaving aside the broader question of the general
admissibility of evidence obtained by unconstitutional means, this case
can be decided on a narrower basis i.e., on the basis of Rule 419-A of
the Rules. As has been pointed out earlier, one of the guidelines issued
by the Hon'ble Supreme Court in People's Union for Civil Liberties,
dealt with this issue and it reads as follows:
“35.
(9)…..
(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.”
95. Rule 419-A(17) of the Rules also authorizes the destruction
of intercepted messages/calls if it is found that the action is not in
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accordance with Section 5(2) of the Act. Noticing these provisions, the
learned Single Judge of the Andhra Pradesh High Court, in
K.L.D.Nagasree, had declared that the material obtained in violation
of Section 5(2) of the Act and Rule 419-A of the Rules cannot be used
for any purpose whatsoever. As noticed earlier, this decision has been
affirmed right up to the Supreme Court. Similarly in the Division Bench
decision of the Bombay High Court in Vinit Kumar and the two
decisions of the Rajasthan High Court in the cases of Shashikant
Joshi and Rakesh Kumar Meena, directions were issued for
destruction of records.
96. 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. In
view of the above discussions and as was done in the decision of the
Hon'ble Andhra Pradesh High Court in K.L.D.Nagasree, it would
suffice for this Court to declare that the intercepted material collected
pursuant to the impugned order in violation of Section 5(2) of the Act
and Rule 419-A(17) of the Rules shall not be used for any purposes
whatsoever.
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CONCLUSIONS :
97. The result of the above discussions can be summed up as
follows:
"i. 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.
ii. 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. Both these contingencies are not
secretive conditions or situations. Either of the
situations would be apparent to a reasonable
person. As laid down in paragraph 28 of the
decision of the Hon'ble Apex Court in People's
Union for Civil Liberties, it is only when the
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above two situations exist that the Authority
may pass an order directing interception of
messages after recording its satisfaction that it
is necessary or expedient so to do in the
interest of (1) the sovereignty and integrity of
India, (2) the security of the State, (3) friendly
relations with foreign States, (4) public order
or (5) for preventing incitement to the
commission of an offence.
iii. In the instant case, the impugned
order dated 12.8.2011 does not fall either
within the rubric of “public emergency” or
“in the interests of public safety” as
explained by the Hon'ble Supreme Court in the
case of People's Union for Civil Liberties.
The facts disclose that it was a covert
operation/secretive situation for detection of
crime, which would not be apparent to any
reasonable person. As the law presently
stands, a situation of this nature does not fall
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within the four corners of Section 5(2) of the
Act as expounded by the Hon'ble Supreme
Court in the case of People's Union for Civil
Liberties, which has been approved by the
Constitution Bench of the Hon'ble Supreme
Court in K.S.Puttaswamy (Aadhaar-5J) Vs.
Union of India [reported in 2019 (1) SCC
1].
iv. The respondents have also
contravened Rule 419-A(17) of the Rules by
failing to place the intercepted material before
the Review Committee within the stipulated
time to examine as to whether the interception
was made in compliance with Section 5(2) of
the Act.
v. As a consequence of (iii) and (iv)
above, the impugned order dated 12.8.2011
must necessarily be set aside as
unconstitutional and one without jurisdiction.
Besides violating Article 21, it is also ultra
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vires Section 5(2) of the Act besides being in
violation of the mandatory provisions of Rule
419-A of the Rules.
vi. It follows that the intercepted
conversations collected pursuant to the
impugned order dated 12.8.2011 in violation of
Section 5(2) of the Act and Rule 419-A(17) of
the Rules shall not be used for any purposes
whatsoever.
vii. It is, however, made clear that the
above direction shall have no bearing on the
other material that have been collected by the
CBI subsequent to and independent of the
intercepted call records, which shall
be considered by the Trial Court on its own
merits without being influenced by any of the
observations made in this order."
98. In the result, the writ petition is allowed. The order dated
12.8.2011 bearing No.14/3/97-CBI passed by the first respondent
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is quashed with the above directions. No costs. Consequently, the
connected WMPs are closed.
02.7.2025
Index : Yes
Neutral Citation : Yes
To
1.The Secretary to Government
of India, Ministry of Home
Affairs, North Block, Central
Secretariat, New Delhi.
110001.
2.The Director, CBI, Plot No.5B,
6th Floor, CGO Complex,
Lodhi Road, New Delhi.
110003.
3.The Additional Superintendent
of Police, SPE : CBI : ACB :
Chennai. (RC MA1 2011 A 0033)
RS
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N.ANAND VENKATESH,J
RS
WP.No.143 of 2018 &
WMP.Nos.206 & 207 of 2018
02.7.2025
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