Phones can be tapped only in public emergency: Bombay high court
The court also upheld the petitioner’s contention that the permission given by the home ministry to tap his phone under Section 5(2) of the Indian Telegraph Act infringed on his “fundamental right to privacy.”Updated: Oct 23, 2019 03:39 IST
The Bombay high court on Tuesday asked the Central Bureau of Investigation (CBI) to destroy the conversations taped of a Mumbai businessman, Vineet Kumar in a bribery case, saying the orders issued to tap the phone was in violation of the law.
The court also upheld the petitioner’s contention that the permission given by the home ministry to tap his phone under Section 5(2) of the Indian Telegraph Act infringed on his “fundamental right to privacy.”
Kumar, 54, was accused in 2011 of bribing a public sector bank employee to illegally secure credit facilities for his business. The CBI registered an FIR on April 11, 2011, alleging that Kumar gave the bank official Rs 10 lakh as bribe, and submitted taped conversations along with the charge sheet as evidence against Kumar.
The businessman approached the Bombay high court challenging the validity of the three orders, passed by the MHA on October 29, 2009, December 18, 2009 and February 24, 2010, allowing the CBI to intercept his telephone conversations.
He challenged validity of the orders on the grounds that they were beyond the powers of Section 5(2) of the Indian Telegraph Act, 1885. The section allows the Central government to tap phones on occurence of any public emergency, or in the interest of public safety if the Centre is satisfied that it is necessary to do so in interest of integrity and sovereignty of India.
In addition, Kumar claimed, the CBI was in non-compliance of Telegraph Rules, and that it was infringing upon his fundamental right to privacy.
He urged the court to strike down the orders and order destruction of the taped telephone conversations, in terms of the directions issued by the apex court in a 1997 case involving the People’s Union for Civil Liberties (PUCL).
The Supreme Court order had issued guidelines to tap phones for ensuring public safety in case of public emergency under Section 5 (2) of the Act. The court had said “it is necessary to lay down procedural safeguards for the exercise of powers under Section 5 (2) so that the right of privacy of a person is protected.”
The bench accepted his contentions, stating that the impugned three interception orders “neither have sanction of law nor issued for legitimate aim.”
“The impugned three interception orders could not satisfy the test of “principles of proportionality and legitimacy… We, therefore, have no hesitation in holding that all three impugned orders are liable to be set aside. Accordingly, we quash and set aside the same,” a division bench of Justice Ranjit More and Justice NJ Jamadar said, in its order.
In addition to the 1997 PUCL case, the petitioner had challenged the orders citing a 2017 nine-judge constitution bench decision in the KS Puttaswamy case.
“The expression ‘Public Safety’ as held in PUCL case means the state or condition of freedom from danger or risk for the people at large,” said the bench. “When either of two conditions is not in existence, it was impermissible to take resort to telephone tapping.”
“The impugned three interception orders were issued allegedly for the reason of ‘public safety’,” the court said in its order, and added, “…unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers under the said section,” the court said.
The bench also ordered destruction of the intercepted conversations. “Having held that the impugned interception orders have been issued in contravention of the provisions of section 5(2) of the Act, we have no option but to further direct the destruction of intercepted messages,” it said.
Commenting on the order, Supreme Court lawyer Gautam Bhatia, tweeted: “What an unbelievable civil rights judgment from the Bombay High Court which defines the powers of the government to tap one’s mobile phones.