Home I Index | What's new

PUCL, December 2008

PUCL PIL challenging validity of a section in the Telegraph Act, 1885

PUCL v State of India (Case of CORAM: KULDIP SINGH AND
S. SAGHIR AHMAD, JJ.)

 

1996(9) SCALE

Petitioner:
PEOPLE'S UNION FOR CIVIL LIBERTIES (PUCL)

Vs.

Respondents:
THE UNION OF INDIA AND ANOTHER [1]

Case of CORAM: KULDIP SINGH AND S. SAGHIR AHMAD, JJ.

CONSTITUTION - ARTICLE 19(1)(a) - INDIAN TELEGRAPH
ACT, 1885 –SECTION 5(2) - Validity of - Held,
Telephone tapping, unless it comes within the grounds
of restrictions under Article 19(2) would infract
Article 19(1)(a) of the Constitution Court issued
directions as to the manner in which an order for
telephone tapping in terms of Section 5(2) of the Act
should be issued.

Referred: Kharak Singh vs 7he State of U.P. & Ors,
(1964) 1 SCR 332; Govind vs State of Madhya Pradesh,
(1975) 2 SCC 148; R.Rajagopal alias R.R.Gopal and
Another vs State of Tamil Nadu, (1994) 6 SCC 632;
Jolly George Varghese vs Bank of Cochin, AIR 1980 SC
470; Kesavananda Bharathi vs State of Kerala, (1973)
Supp. SCR 1; Hukam Chand Shyam Lal vs Union of India &
Ors, 1976 (2) SCC 128; Maneka Gandhi vs Union of
India, (1978) 2 SCR 621.

Kuldip Singh, J. – Telephone - Tapping is a
section 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, however
democratic, exercises some degree of subrosa as a part
of its intelligence out-fit but as the same time
citizen’s right to privacy has to be protected
front being abused by the authorities of the day.

2. This petition- public interest- under Article 32 of
the Constitution of India has been filed by the
People’s Union of Civil Liberties, a voluntary
organisation, high lighting the incidents of telephone
tapping in the recent past. The petitioner has
challenged the constitutional validity of Section 5(2)
of the Indian Telegraph Act, 1885 (the act), in the
alternative it is contended that the said provisions
be suitably read-down to include procedural safeguards
to rule out arbitrariness and to prevent the
indiscriminate telephone-tapping.

4. The writ petition was filed in the wake of the
report on "Tapping of politicians the Central phones"
by Bureau of investigation (CBI). Copy of the report
as published in the "mainstream" volume XXIX dated
March 26, 1991 has been placed on record along with
the rejoinder filed by the petitioner. The
authenticity of the report has not been questioned by
the learned counsel the Union of India before its.
Para 21 and report site is under:-

"21. Investigation -has revealed the following lapses
on the part of MTNL

i) In respect of 4 telephone numbers though they were
shown to be under interception in the statement
supplied by MTNL, the authorisation for putting the
number under interception could not be provided. This
shows that records have not been maintained properly.

ii) In respect of 279 telephone numbers, although
authority letters from various authorised agencies
were available, these numbers have not been shown in
list supplied by MTNL showing interception of
telephones to the corresponding period. This shows
that lists supplied period were incomplete.

iii) In respect of 133 cases, interception bite phones
were done beyond the authorised part. The GM (o), MTNL
in his explanation has said that this was done in good
faith on oral requests of the representatives of the
competent authorities and that instructions have now
been issued that interception beyond authorised
periods will be done only on receipt of written
requests.

iv) In respect of III cases, interception of
telephones have exceeded 180 days period and no
permission of Government for keeping the telephone the
telephone under interception beyond 180 days was
taken.

v) The files pertaining to interception have not been
maintained properly.

22. Investigation has also revealed that various
authorised agencies are not maintaining the files
regarding interception of telephones properly. One
agency is not maintaining even the log books of
interception. The reasons for keeping a telephone
number on watch have also not been maintained
properly. The effectiveness of the results of
observation have to be reported to the Government in
quarterly returns which is also not being sent in time
and does not contain all the relevant information. In
the case of agencies other than I.B., tile returns are
submitted to the MHA. The periodicity of maintenance
of the records is not uniform. It has been found that
whereas DRI keeps record for the last 5 years, in case
of I.B., as soon as the new quarterly statement is
prepared, the old returns are destroyed for reasons of
secrecy. The desirability of maintenance of
unit-return and periodicity of these documents needs
to be examined.

Section 5(2) of the Act is as under:-

"5(2) - On the occurrence of any public emergency, or
in the interest of public safety, the Central
Government or a State Government or any Officer
specially authorised in this behalf by the Central
Govt. 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 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".

5. The above provisions clearly indicate that in the
event of the occurrence of a public emergency or in
the interest of public safety the Central Government
or the State Government or any officer specially
authorised in this behalf, can intercept messages if
satisfied 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.

(v) For preventing incitement to the commission of an
offence.

6. The CBI report indicates that under the above
provisions of law Director Intelligence Bureau,
Director General Narcoties Control Bureau, Revenue
Intelligence and Central Economic Intelligence Bureau
and the Director Enforcement Directorate have been
authorised by the Central Government to do
interception for the purposes indicated above. In
addition, the State Governments generally give
authorisation to the Police/Intelligence agencies to
exercise the powers under the Act.

7. The Assistant Director - General, Department of
Telecom has filed counter affidavit on behalf of the
Union of India. The stand taken by the Union of India
is as under:-

"The allegation that the party in power at the
Center/State or officer authorised to tap the
telephone by the Central/State Government could misuse
this power is not correct. Tapping of telephone could
be done only by the Central/State Government order by
the officer specifically authorised by the Central
State Government on their behalf and it could be done
only under certain conditions such as National
Emergency in the interest of public safety, security
of State, public order etc. It is also necessary to
record the reasons for tapping before tapping is
resorted to. If the party, whose telephone is to be
tapped is to be informed about this and also the
reasons for tapping, it will defeat the very purpose
of tapping of telephone. By the very sensitive nature
of the work, it is absolutely necessary to maintain
secrecy in the matter. In spite of safeguards, if
there is alleged misuse of the power, regarding
tapping of telephones by any authorised officer, the
aggrieved part could represent to the State
Government/Central Government and suitable action
could be taken as may be necessary. Striking down the
provision Section 5(2) of tile Indian Telegraph Act,
is not desirable as it will jeopardise public interest
and security of the State".

Section 7 (2)(b) of the Act which gives rule making
power to the Central Government is as under :-

"7. Power to make rules for the conduct of telegraphs
- (1) The Central Government may, from time to time,
by notification in the Official Gazette, make rules
consistent with this Act for the conduct of all or any
telegraphs, established, maintained or worked by the
Government or by persons licensed under this Act.

(2) Rules under this section may provide for all or
any of the following, among other

matters, that is to say:-

(a) xx xx

(b) the precautions to be taken for preventing the
improper interception or disclosure of message".

8. No rules have been framed by the Central Government
under the provisions quoted above.

9. Mr.Rajinder Sachar, Sr. Advocate assisted by Mr.
Sanjay Parikh vehemently contended that right to
privacy is a fundamental right guaranteed under
Article 19(1) and Article 21 of the Constitution of
India. According to Mr. Sachar to save Section 5(2),
of the Act from being declared it is necessary to
read-down the said provision to provide adequate
machinery to safeguard the right to privacy. Prior
judicial sanction - ex-parte in nature - according to
Mr. Sachar, is the only safeguard, which can eliminate
the element of arbitrariness or unreasonableness. Mr.
Sachar contended that not only the substantive but
also the procedure provided therein has to be just,
fair and reasonable.

10. While hearing the arguments on September 26, 1995,
this Court passed the following order:

"Mr. Parikh is on his legs. He has assisted us in this
matter for about half an hour. At this stage, Mr.
Kapil Sibal & Dr. Dhawan, who are present in Court,
stated that according to them the matter is important
and they being responsible members of the Bar, are
duty bound to assist this Court in a matter like this
We appreciate the gesture. We permit them to intervene
in this matter. They need a short adjournment to
assist us.

The matter is adjourned to October 11,1995".

11. While assisting this Court Mr. Kapil Sibal at the
outset stated that in the interest of the security and
sovereignty of India and to deal with any other
emergency situation for the protection of national
interest, messages may indeed be intercepted.
According to him the core question for determination
is whether there are sufficient procedural safeguards
to rule our arbitrary exercise of power under the Act.
Mr. Sibal contended that Section 5(2) of the Act
clearly lays down the conditions/situations which are
sine qua non for the exercise of the power but the
manner in which the said power can be exercised has
not been provided. According to him procedural
safeguards short of prior judicial scrutiny - shall
have to be read in Section 5(2) of the Act to save it
from the vice of arbitrariness.

12. Both sides have relied upon the seven - Judge
Bench judgment of this Court in Kharak Singh vs. The
State of U.P. & Ors. (1964) 1 SCR 332. The question
for consideration before this Court was whether
"surveillance" finder Chapter XX of the U.P. Police
Regulations constituted an infringement of any of the
fundamental rights guaranteed by Par III of the
Constitution. Regulation 236(b) which permitted
surveillance by "domicilliary visits at night" was
held to be violative of Article 21 on the ground that
there was no "law" under which the said regulation
could be justified.

13. The word "life" and the expression "personal
liberty" in Article 21 were elaborately considered by
this Court in Kharak Singh’s case. The majority
read "right to privacy" as part of the right to life
under Article 21 of the Constitution on the following
resorting:

"We have already extracted a passage from the judgment
of Field, J. in Munn v. Illinois (1877) 94 U.S. 113,
142, where the learned Judge Pointed out that "Life"
in the 5th and 14th Amendments of the U.S.
Constitution corresponding to Art. 21, means not
merely the right to the continuance of a person's
animal existence, but a right to the possession of
each of his organs-his arms and legs etc. We do not
entertain any doubt that the word "life" in Art. 21
bears the same signification. Is then the word
"personal liberty" to be construed as excluding from
its purview an invasion on the part of the police of
the sanctity of a man's home and an intrusion into his
personal security and his right to sleep which is the
normal comfort and a dire necessity for human
existence even as an animal? It might not be
inappropriate to refer here to the words of the
preamble to the Constitution that it is designed to
"assure the dignity of the individual" and therefore
of those cherished human value as the means of
ensuring his full development and evolution. We are
referring to these objectives of the framers merely to
draw attention to the concepts underlying the
constitution which would point to such vital words as
"personal liberty" having to be construed in a
reasonable manner and to be attributed that sense
which would promote and achieve those objectives and
by no means to stretch the meaning of the phrase to
square with any preconceived notions or doctrinaire
constitutional theories. Frankfurter, J. observed in
Wolf v. Colorado (1949) 338 US 25:

"The security of one's privacy against arbitrary
intrusion by the police.... is basic to a free
society. It is therefore implicit in the concept of
ordered liberty and as such enforceable against the
States through the Due Process Clause. The knock at
the door, whether by day or by night, as a prelude to
a search, without authority of law but solely on the
authority of the police, did not need the commentary
of recent history to be condemned as inconsistent with
the conception of human rights enshrined in the
history and the basic constitutional documents of
English-speaking peoples... We have no hesitation in
saying that were a State affirmatively to sanction
such police incursion into privacy it would run
counter to the guaranty of the Fourteenth Amendment."

Murphy, J. considered that such invasion was against
"the very essence of scheme of ordered liberty".

It is true that in the decision of the U.S. Supreme
Court from which we have made these extracts, the
Court hid to consider also the impact of a violation
of the Fourth Amendment which reads.

"'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 it things to be seized."

and that our constitution does not in terms confer any
like constitutional guarantee. Nevertheless, these
extracts would show that an unauthorised intrusion
into a person's home and the disturbance caused to him
thereby, is as it were the violation of a common law
right of a man - an ultimate essential of ordered
liberty if not of the very concept of civilisation. An
English Common Law maxim asserts that "every man's
house is his castle" and in Semayne’s case
(1604) 5 Coke 91, where this applied, it was stated
that "the house of everyone is to him as his castle
and fortress as well as for his defence against injury
and violence as for his repose". We are not unmindful
of the fact that Semayne's case was concerned with the
law relating to executions in England, but the passage
extracted has a validity quite apart from the context
of the particular decision. It embodies an abiding
principle which transcends mere protection of property
rights and exponds a concept of "personal liberty"
which does riot rest on any element of feudalism or on
any theory of freedom which has ceased to be of value.

In our view cl. (b) of Regulation 236 is plaintly
violative of Art. 21 and as there is no "law" on which
the same could be justified it must be struck down as
unconstitutional."

14. Subba Rao, J. (as the learned Judge then was) in
his minority opinion also came to the conclusion that
right to privacy was a part of Article 21 of the
Constitution but went a step further and struck down
Regulation 236 as a whole on the following reasoning:

"Further, the right to personal liberty takes in not
only a right to be free from restrictions placed on
his movement, but also free from encroachments on his
private life. 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 Wold v. Colorado (1949) 338 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
Art. 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. If so understood, all the acts of'
surveillance under Regulation 236 infringe the
fundamental right of the petitioner insider Art. 21 of
the Constitution."

15. Article 21 of the Constitution has, therefore,
been interpreted by all the seven learned Judges in
Kharak Singh's case (majority and the minority
opinions) to include that "right to privacy" is a part
of the right to "protection of life and personal
liberty" guaranteed under the said Article.

16. In Govind vs State of Madhya pradesh (1975) 2 SCC
148, a three-Judge Bench of this Court considered the
constitutional validity of Regulations 855 and 856 of
the Madhya Pradesh Police Regulations which provided
surveillance by way of several measure indicated in
the said regulations. This Court upheld the validity
of the regulations by holding that Article 21 was not
violated because the impugned regulations were
"procedure established by law" in terms of the said
article.

17. In R. Rajagopal alias R. R. Gopal and another vs.
State of Tamil Nadu (1994) 6 SCC 632, Jeevan Reddy, J.
speaking for the Court observed that in recent times
right to privacy has acquired constitutional status.
The learned Judge referred to Kharak’s case,
Govind’s case and considered a large number of
American and English cases and finally came to the
conclusion 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 is a "right
to be let alone". A citizen has a right "to safeguard
the privacy of his own, his family, marriage,
procreation, motherhood, child-bearing and education
among other matters".

18. We have, therefore, no hesitation in holding that
right to privacy is a part of the right to "life and
"personal liberty" enshrined finder Article 21 of the
Constitution. Once the facts in a given case
constitute a right to privacy, Article 21 is
attracted. Tile said right cannot be curtailed "except
according to procedure established by law".

19. 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 ones 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.
Teelephone-conversation is a part of modern man's
life. It is considered so important that more and more
people are carrying mobile telephone instruments in
their pockets. Telephone conversation is an important
facet of a man's private life. Right to privacy would
certainly include telephone-conversation in the
privacy of one's home or office. Telephone-tapping
would, thus, infract Article 21 of the Constitution of
India unless it is permitted under the procedure
established by law.

20. Right to freedom of speech and expression is
guaranteed under Article 19(1)(a) of the Constitution.
This freedom means the right to express ones
convictions and opinions freely by word of mouth,
writing, printing, picture, or in any other manner.
When a person is talking on, telephone, he is
exercising his right freedom of speech and expression
Telephone-tapping unless it comes within the grounds
of restrictions under Article 19(1) would infract
Article 19(1)(a) of the Constitution.

21. India is a signatory to the International Covenant
on Civil and Political Rights, 1966 Article 17 of the
said covenant is as under:-

"Article 17
No one shall be subject to arbitrary unlawful
interference with his privacy family, human or
correspondence, nor to lawful attacks on his honour
and reputation.
Every one has the right to the protection of the law
against such interference or attacks."

Article 12 of the Universal Declaration of Human
Rights, 1948 is almost in similar terms.

22. International law today is not confined to
regulating the relations between the Scope continues
to extend. Today matters of social concern, such as
health, education and economics apart from human
rights fall within the ambit of International
Regulation, International law is more than ever aimed
as individuals.

23. It is almost accepted proposition of law that the
rules of customary international law which are not
contrary to the municiped law shall be deemed to be
incorporated in the domestic law.

24. Article 51 of the Constitution directed that the
State shall endeavour to inter alia foster respect for
international law and treaty obligations in the
dealings of organised peoples with one another.
Relying upon the said Article, Sikri, C.J. in
Kesavananda

Bharathi vs. State of Kerala ( 1973) Supp.

SCR 1 observed as under:-

"It seems to me that, in view of Article 51 of the
directive principles, this Court must interpret
language of the Constitution, if not intractable,
which is after all a intractable law, in the light of
the United Nations Charter and the solemn declaration
subscribed to by India."

In A.D.M. Jabalpur vs. S. Shukla Khanna J. in his
minority opinion observed as under:-

"Equally well established is the rule of construction
that if there be a conflict between the municipal law
on one side and the international law or. the
provisions of any treaty obligations on the other, the
Courts would give effect to municipal law. If,
however, to construction of the municipal law are
Possible, the Courts should lean in favour of adopting
such construction as would make the provisions of the
municipal law to be in harmony with the international
law on treaty obligations. Every statute, according to
this rule is interpreted, so far as its language
permits, so as not to be inconsistent with the comity
of nations on the established rules of international
law, and the Court will avoid a construction which
would give rise to such inconsistency unless compelled
to adopt it by plain and unambiguous language."

In Jolly George Varghese vs. Bank of Cochin AIR 1980
SC 470, Krishna Iyer, J. posed the following
question:-

"From the perspective of international law the
question posed is whether it is right to enforce a
contractual liability by imprisoning a debtor in the
teeth of Article 11 of the International Covenant on
Civil and Political Rights. The Article reads: No one
shall be imprisoned merely on the ground of inability
to fulfil a contractual obligation."

The learned Judge interpreted Section 51 of the Code
of Civil Procedure consistently with Article 11 of the
International Covenant.

25. Article 1 7 of the International Covenant - quoted
above - does not go contrary to any part of our
Municipal law. Article 21 of the Constitution has,
therefore, been interpreted in conformity with the
international law.

26. Learned counsel assisting us in this case have not
seriously challenged the constitutional vires of
Section 5(2) of the Act. In this respect it would be
useful to refer to the observations of this Court in
Hukam Chand Shyam Lal vs. Union of India & Ors. 1976
(2) SCC 128:-

"Section 5(1) if properly construed, does not confer
unguided and unbridled power on the Central
Government/State Government/specially authorised
officer to take possession of any telegraph. 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 prerequisite 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
subsection (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". 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. It is
in the context of these matters that the appropriate
authority has to form an opinion with regard to the
occurrence of a 'public emergency' with a view to
taking further action under this section. Economic
emergency is not one of those matters expressly
mentioned in the statute. Mere 'economic emergency' -
as the High Court calls it - may not necessarily
amount to a 'public emergency' and justify action
under this section unless it raises problems relating
to the matters indicated in the section."

27. As mentioned above, the primary contention raised
by the learned counsel is to lay-down necessary
safeguards to rule-out the arbitrary exercise of power
under the Act.

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 tile interest of public safety demands,
the authorities have no jurisdiction to exercise the
powers under the said Section. Public emergency would
mean the prevailing of a sudden condition or state of
affairs affecting the people at large calling for
immediate action. The expression "public safety" means
the state or condition of freedom from danger or risk
for the people at large. When either of these two
conditions are not in exercise, the Central Government
or a State Government or the authorised officer cannot
resort to telephone tapping even though there is
satisfaction that it is necessary or expedient so to
do in the interests of sovereignty and integrity of
India etc. In other words, even if the Central
Government is satisfied that it is necessary or
expedient so to do in the interest of the sovereignty
and integrity of India or the security of the State or
friendly relations with sovereign States or public
order or for preventing incitement to the commission
of an offence, it cannot intercept the messages or
resort to telephone tapping unless a public emergency
has occurred or the interest of public safety or the
existence of the interest of public safety requires.
Neither the occurrence of public emergency nor the
interest of public safety are secretive conditions or
situations. Either of the situations would be apparent
to a reasonable person.

29. The first step under Section 5(2) of the Act,
therefore, is the occurrence of any public emergency
or 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
message/conversations is concerned the Section clearly
lays-down the situation/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 reasonably.
The said procedure itself must be just, fair and
reasonable. It has been settled by this Court in
Maneka Gandhi vs. Union of India (1978) 2 SCR 621,
that "procedure which deals with the modalities of
regulating, restricting or even rejecting a
fundamental right falling within Article 21 has to be
fair, not foolish, carefully designed to effectuate,
not to 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."

31. We are of' the view that there is considerable
force in the contention of Mr. Rajinder Sachar, Mr.
Kapil Sibal and Dr. Rajiv Dhawan that no procedure has
been described for the exercise of the power under
Section 5(2) of the Act. It is not disputed that to
rules have been framed under Section (2)(b) of the Act
for providing the precaution to be taken for
preventing the improper interception or disclosure of
messages. In the absence of just and fair procedure
for regulating the exercise of power under Section
5(2) of the Act, it is not possible to safeguard the
rights of the citizens guaranteed under Articles
19(1)(a) and 21 of the Constitution of India. The CBI
investigation has revealed several lapses in the
execution of the orders passed under section 5(2) of
the Act. Paras 21 and 21 of report have already been
quoted in the earlier part of this judgment.

32. The Second Press Commission in paras 164, 165 and
166 of its report has commented on the "tapping of
telephones" under:-

"Tapping of Telephones

164. It is felt in some quarters, not without reason,
that not infrequently the Press in general and its
editorial echelons in particular have to suffer
tapping of telephones. 165. Tapping of telephones is a
serious invasion of privacy. It is a variety of
technological eavesdropping. Conversations on the
telephone are often of an intimate and confidential
charter. The relevant statute, i.e., Indian Telegraph
Act, 1885, a piece of ancient legislation, does not
concern itself with tapping. Tapping cannot be
regarded as a tort because the law as it stands today
does not know of any general right to privacy.

166. This is a hardly satisfactory situation. There
are instances where apprehensions of disclosure of
sources of informations of disclosure of sources of
information as well as the character of information
may result in constraints on freedom of information
and consequential drying up of its source. We,
therefore, recommend that telephones may not be tapped
except in the interest of national security, public
order, investigation o f crime and similar objectives
under orders made in writing by the Minister concerned
or an officer of rank to whom the power in that behalf
is delegated. The order should disclose reasons. An
order for tapping of telephones should expire after
three months from the date of tile order. Moreover,
within a period of six weeks the order should come up
for review before a Board constituted on the lines
prescribed in statutes proving for preventive
detention. It should be for the Board to decide
whether tapping should continue ally longer. The
decision of the Board should be binding on the
Government. It may be added that the Minister ' or his
delegates will be competent to issue a fresh order for
tapping of the telephone if circumstances

call for it. The Telegraph Act should contain a clause
to give effect to this recommendation".

33. While dealing with Section 5(2) of the Act, the
Second Press Commission gave following suggestion
regarding "public emergency" and "interest of public
safety":

"160. It may be noticed that the public emergency
mentioned in the sub-section is not an objective fact.
Some public functionary must determine its existence
and it is on the basis of the existence of a public
emergency that an authorised official should exercise
the power of withholding transmission of telegrams. We
think that the appropriate government should declared
the existence of the public emergency by the
notification warranting the exercise of this power and
it is only after the issue of such a notification that
the power of withholding telegraphic massages should
be exercised by the delegated authority. When such a
notification is issued, the principal officer of the
telegraph; office can be required to submit to the
District Magistrate, whom we consider to be the proper
person to be the delegate for exercising this power,
such telegrams brought for transmission which are
likely to be prejudicial to the interest sought to be
protected by the prejudicial to the interest sought to
be protected by the subsection. Thereupon the District
Magistrate should pass an order in writing withholding
or allowing the transmission of the telegram. We are
suggesting the safeguard of a prior notification
declaring the existence of a public emergency because
the power of interception is a determination of the
existance of the public emergency in the hands of a
delegate".

"We are of the view that whenever the power is excised
in the interest of public safety, it should, as far as
possible, be exercised by the concerned Minister of
the appropriate government for one month at a time
extendible by Government if the emergency continues.
However, in exceptional circumstances the power call
be delegated to the District Magistrate.

163. We also think that as soon as an order is pissed
by the District Magistrate withholding the
transmission of a telegraphic message, it should be
communicated to the Central or State Government, as
the case may be, and also to the sender and the
addressee of the telegram. The text of the order
should be placed on the table of the respective State
legislatures after three months. We recommend that, as
suggested by the Press Council of India in its annual
report covering 1969, the officer in charge of a
telegraph officer should maintain a register giving
particulars of the time of receipt, the sender and
addressee of every telegram which he refers to the
District Magistrate with recommendation of its
withholding. Similarly, the District Magistrate should
maintain a register of the time receipt, content and
addressee of each telegram and record his decision
thereon, together with the time of the decision. Data
of this nature will help courts, if called upon, to
determine the presence or absence of mala fide in the
withholding of telegrams" '

According to Mr. Sachar the only way to safeguard the
right of privacy of all individual is that there
should be prior judicial scrutiny before any order for
telephone-tapping is passed under Section 5(2) of the
Act. He states that such judicial scrutiny may be
ex-parte. Mr. Sachar contended that the judicial
scrutiny alone would take away the apprehension of
arbitrariness or unreasonableness of the action. Mr.
Kapil Sibal, on the other hand, has suggested various
other safeguards - short of prior judicial scrutiny -
based on the law on the subject in England as enacted
by the Interception of the Communications Act, 1985.

34. We agree with Mr. Sibal that in the absence of any
provision in the statute, it is not possible to
provide for prior judicial scrutiny as a procedural
safeguard. It is for the Central Government to make
rules under Section 7 of the Act. Rule 7(2)(b)
specifically provides that the Central Government may
make rules laying down the precautions to the taken
for preventing the improper interception or disclosure
of messages. The Act was enacted in the year 1885. The
power to make rules under Section 7 of the Act has
been there for over a century but the Central
Government has not thought it proper to frame the
necessary rules despite severe criticism of the manner
in which the power Section 5(2) has been exercised. It
is entirely for the Central Government to make rules
on the subject but till the ttime it is done the right
to privacy of an individual his to be safeguarded. In
order to rule-out arbitrariness the exercise of power
under Section 5(2) of the Act and till the time the
Central Government lays down just, fair and reasonable
procedure under Section 7(2)(b) of the Act, it is
necessary to lay down procedural safeguards for the
exercise of power under Section 5(2) of the Act so
that the right to privacy of a person is protected.

35. We, therefore, order and direct as under:-

1. An order for telephone-tapping in terms of Section
5(2) of the Act shall not be issued except by the Home
Secretary, Government of India (Central Government)
and Home Secretaries of the State Governments. In an
urgent case the power may be delegated to an officer
of the Home Department of the Government of India and
the State Governments not below the rank of Joint
Secretary. Copy of the order shall be sent to the
Review Committee concerned within one week of the
passing of the order.

2. The order shall require the person to whom it is
addressed to intercept in the course of their
transmission by means a public telecommunication
system, such communications as are described in the
order. The order may also require the person to whom
it is addressed to disclose the intercepted material
to such persons and in such manner as are described in
the order.

3. The matters to be taken into account in considering
whether an order is necessary under Section 5(2) of
the Act shall include whether tile information which
is considered necessary to acquire could reasonably be
acquired by other means.

4. The interception required under Section 5(2) of the
Act shall be the interception of such communications
as are sent to or from one or more addresses,
specified in the order, being an address or addresses
likely to be used for the transmission of
communications to or from, from one particular person
specified or described in the order or one particular
set of premises specified or described in the order.

5. The order under Section 5(2) of the Act shall,
unless renewed, cease to have effect at the end of the
period of two months from the data of issue. The
authority which issued the order may, at any time
before the end of two months period renew the order if
it considers that it is necessary to continue the
order in terms of Section 5(2) of the Act. The total
period for the operation of the order shall not exceed
six months.

6. The authority which issued the order shall maintain
the following records:

(a) the intercepted communications,
(b) the extent to which the material is disclosed,
(c) the number of persons and their

 

End Note

1. Judgment dated December 18, 1996 in W.P. (C) No.
246 of 1991. [Back to content]

 

 

remarks:3


People's Union for Civil Liberties, 81 Sahayoga Apartmrnts, Mayur Vihar I, Delhi 110091, India. Phone (91) 11 2275 0014