Phone tapping violates privacy rights, says Madras HC
The judge emphasised that corruption cases must be investigated lawfully, and constitutional protections cannot be bypassed even in serious crimes.
The Madras high court on Wednesday held that phone tapping, even to detect a crime, amounts to the violation of an individual’s fundamental right to privacy, unless it is strictly justified under a procedure established by law.
The court said that the existing provisions of the Telegraph Act and Telegraph Rules do not permit covert interception of phone calls or messages of an individual merely to detect the commission of a crime. Such surveillance, the court said, is permissible only in cases of public emergency or in the interest of public safety.
Justice N Anand Venkatesh, accordingly, quashed an authorisation issued by the Union ministry of home affairs (MHA) in 2011 for tapping the phone of a Chennai resident involved in an alleged case of bribery and for making the results of such interception available to the Central Bureau of Investigation (CBI).
The judge emphasised that corruption cases must be investigated lawfully, and constitutional protections cannot be bypassed even in serious crimes.
Justice Venkatesh said that a citizen’s “right to privacy is a fundamental right protected under Article 21 of the Constitution, as well as part of the broader freedoms guaranteed by Part III of the Constitution”.
Citing the Supreme Court’s judgments in cases such as Gobind vs the State of Madhya Pradesh, PUCL vs Union of India, and the landmark Puttaswamy judgement, the high court emphasised that privacy is an inherent and essential part of personal liberty, though it remains subject to reasonable restrictions under the Constitution.
Justice Venkatesh also cited the observations made by former Supreme Court judge justice SK Kaul’s concurring remarks in the Puttaswamy judgment and said the same underscored the need to recognize and adapt to evolving constitutional values, “replacing outdated interpretations with a modern understanding of individual rights”.
“There can be no doubt that telephone tapping would infringe Article 21 unless such infringement has the sanction of a procedure established by law,” the high court said.
The court quashed the phone tapping order against the petitioner, P Kishore, after noting that though the MHA had granted such permission saying it was for “preventing incitement to the commission of an offence”, any law enforcement agency was not empowered to “resort to covert surveillance by tapping the mobile phones to obtain information regarding the commission of an alleged crime”.
The MHA, in its affidavit filed before the court, had claimed that it had passed the phone tapping order “in strict compliance” with section 5(2) of the Telegraph Act and rule 419-A of the Telegraph Rules which grant the Centre or state governments the power to intercept or detain messages during a public emergency or in the interest of public safety.
Since the petitioner was having a conversation about committing an offence, it was intercepted in the interest of public safety preventing further incitement to the commission of an offence, MHA had said.
Justice Venkatesh however, noted that in previous judgments, the Supreme Court clarified that the occurrence of public emergency or the interest of public safety could never be a secretive condition or situation.
“Either of the situations 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,” Justice Venkatesh said.
The court noted that in the present case, the order for phone tapping was linked to a CBI investigation based on a first information report (FIR) registered in August 2011, in which Kishore was named as an accused.
The FIR alleged that IRS officer Andasu Ravinder, then additional commissioner of Income Tax, had demanded a ₹50 lakh bribe from Kishore to help his company evade taxes. The bribe was allegedly routed through Ravinder’s friend Uttam Bohra. Acting on this information, CBI intercepted Ravinder and Bohra near Ravinder’s residence and recovered a carton containing ₹50 lakh. Neither of the two could explain the source of the cash, but Kishore was not present at the scene, and no money was found in his possession.
Challenging the surveillance order, Kishore argued that the interception violated his fundamental right to privacy under Article 21 of the Constitution.
