Constitutional and legal implication of phone tapping
The controversy relating to telephone tapping had time and again been raised previously also by several MPs, Ministers including Sri Chandra Shekhar Ex.- Prime Minister ending with hue and cry raised by Amar Singh, MP and Secretary of Samajwadi Party as well as Mrs. Jaylalitha, chief minister of Tamil Nadu and Maneka Gandhi and such type of complaints and grievances in future also are likely to be raised because of bona fide grievances and or vendetta.india Updated: May 29, 2006 00:14 IST
The controversy relating to telephone tapping had time and again been raised previously also by several MPs, Ministers including Sri Chandra Shekhar Ex.- Prime Minister ending with hue and cry raised by Amar Singh, MP and Secretary of Samajwadi Party as well as Mrs. Jaylalitha, chief minister of Tamil Nadu and Maneka Gandhi and such type of complaints and grievances in future also are likely to be raised because of bona fide grievances and or vendetta.
As such it is necessary for general public as well as Governmental and public authorities to understand the constitutional and legal implications arising out of phone tapping.
The Indian Telegraph Act, 1885 is basically a pre-constitutional and colonial Act and as such the provisions of the said Act of 1885 have to be viewed and understood in the context of constitutional and Post Constitutional law of freedom of speech and expression enshrined in Article 19 (i) (a) and Fundamental Right of life and liberty enshrined in Article 21 vis-à-vis right of Press as well as Audio Visual media to publicise for benefit of general public as well as the provisions of right of Information Act recently introduced as well as power of the Government to take possession of licensed telegraph and order interception of messages under the Indian Telegraph Act, 1885. Section 5 of The Indian Telegraph Act, 1985 was substituted by Act No. 38 of 1972 with effect from 21-08-1972 with power of the Government as Sovereign State to take possession of the licensed telegraph and to order interception of messages on the occurrence of any public emergency or in the interest of public safety or in the interest of sovereignty and integrity of India, security of the State, friendly relations with foreign States or public order or for preventing incitement for commission of an offence so that the Central Government and the state government may for reasons to be recorded in writing by order direct that any message, class of messages from any person or class of persons or relating to any particular subject shall be intercepted, detained or shall be disclosed to the government making said order and also during public emergency or for safety reasons to take temporary possession of any telegraph of any licensed person.
The Sovereignty of the Nation lies in the We, People of India and as such the right of privacy of any public servant, constitutional authorities, statutory authorities and other functionaries of the state controlled Corporation as well as MP, MLA, Minister, Chief Minister and Prime Minister and howsoever high post a person may occupy cannot be claimed against sovereignty and integrity of India with regard of the State, friendly relations with foreign States, Public Order, or incitement of general public and right of people of India to know at least as to whether the free phone facilities which are being given to the aforesaid categories of public functionaries are being correctly used or are being misused and whether the said free phone facilities given out of the tax-payers money of this country are being used for corrupt, illegal, immoral and personal activities or they are being used only in the official discharge of their assigned duties and the said right of the people of Sovereign India also get fortified by recent Act namely the Right of Information Act which has been promulgated and brought into effect with great pomp and show pretended to be for the benefit of common man of this country.
Those who have voluntarily chosen a public life either on account of their public greed or sense of public duties either as public servant, constitutional and statutory functionaries and other local authorities or functionaries of the State controlled Corporations, at least they cannot have any grudge or grievance that their telephone facilities are being intercepted or being watched because it is an open secret that in the garb of holding post, constitutional and statutory post, these authorities have mis-used free phone facilities as well as other benefits, facilities and privileges for their personal and wrongful advantage and as such there is always need in public interest and national interest to watch and intercept and give details of any misuse of any nature of any public fund and facilities by such persons.
The Right to Freedom of Speech and Expression under Article 19 (i) (a) of the Constitution, has been given to the citizens of India only and it is doubtful and debatable proposition that if citizen choose to give up his private life voluntarily and opts to become a public servant or constitutional or statutory authority of any dimension and nature for discharge of public duties then duties part must override to any right of freedom of speech and expression and may eclipse the freedom of speech and expression when it comes in conflict with the public purpose and public interest.
Similarly right to life and liberty has been interpreted by the Hon'ble Supreme Court may not also be applicable to its full extent so far public servants, constitutional and statutory functionaries and local authorities discharging public duties, are concerned because in the discharge of public duty, parameter and their right to Life and Liberty shall be tested on the touch stone of public purpose and public interest any they cannot claim any right to life and liberty or privacy endangering public interest and public purpose or devoid of their official discharge of duties.
The right of Press and other media for which they have their solemn duty to disclose any scandalous, corrupt and anti-national, immoral and other activities prejudicial to public purpose and public interest, cannot be curtailed and as such no body can raise any grievance against the Press and other Media for exposing illegal, immoral and corrupt activities of any public servant, constitutional or statutory authority or other local government authorities.
In any event the persons working as public servants or holding constitutional and statutory posts as well as functionaries of other authorities and corporations and local bodies can claim that the matters which are governed under the Official Secret Act, 1923 cannot be subjected to phone tapping or piracy but any other type of acts, deeds, transactions, use of free telephone cannot be claimed by any such authority under any garb of duties, privileges or right of privacy on any ground whatsoever.
The writer is an advocate at the Allahabad High Court.
Note: The views expressed herein belong to the writer.