Phones can be tapped only in public emergency or in interest of public safety: Bombay HC

A city businessman was granted relief by the Bombay high court on Tuesday after it quashed three orders of the Union Ministry of Home Affairs (MHA) that allowed

A city businessman was granted relief by the Bombay high court on Tuesday after it quashed three orders of the Union Ministry of Home Affairs (MHA) that allowed the Central Bureau of Investigation (CBI) to intercept his phone calls.

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A division bench of justice Ranjit More and justice NJ Jamadar held that under Section 5(2) of the Indian Telegraph Act, an order for interception can be issued on either the occurrence of any public emergency or in the interest of the public safety, and ordered the CBI to destroy the taped conversations.

“The impugned three interception orders were issued allegedly for the reason of ‘public safety’,” the court said in its order.

It 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.”

Vineet 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.

He urged the court to strike down the orders and order destruction of the tapped 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 bench accepted his contentions, stating that the impugned three interception orders “neither have sanction of law nor issued for legitimate aim.” It added, “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.”

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 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.