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Scope of Right to privacy for phone tapping

Communication has always been the most significant part and important invention by human being. With the advancement in the technology and science the interaction between humans are easy. We can connect to people sitting a thousand miles away on one touch by phone calls, emails and messages.

There is only one major concern with communication is Security. Every individual have right to protect the conversation between them which falls under Article 21[1] of Constitution of Indian. Article 21 of our Constitution lays down that no person shall be deprived of his life and personal liberty except according to the procedure which has been laid down by the law. The phrase personal liberty also includes within its ambit the right to privacy. Although this is not mentioned expressly, but the right to privacy is an implied right guaranteed by the Constitution of India.

The term phone tapping means interception of the contents of communication through a secret connection to the telephone line of one whose conversations are to be monitored usually without the consent of person whose communication are monitored. Here, the question arise about the violation of right of privacy of individual. Every act without the consent of the person termed as illegal act by private person or public officer but in the case of public emergency or in the interest of public safety does not need any consent.

With an increasing irregularities and misusing the power of position for the procedure of phone tapping in India, The Telegraph act,1885 plays major role for controlling and avoiding unauthorized phone tapping in our society. Section 5(2)[2] of Indian Telegraph Act, empowers the government to and to order interception of messages.

On the occurrence of any public emergency, or in the interest of public safety, the Central government or State government or any person specifically authorized by the Central or State government, if satisfied that it is necessary or expedient to do so, may take temporary possession of any telegraph established, maintained or worked by any person licensed under the Indian Telegraph Act.

The term intercept or interception have not defined in the Indian Telegraph Act but same can be understand by the definition of Major Law Lexicon, 4th Edition, 2010[3] defines the term interception as the act of listening In and recording communications, intended for another party for the purpose of obtaining intelligence.

The Supreme Court in 1996 judgment in People's Union for Civil Liberties (PUCL) v. Union of India[4], where the petitioner challenged the constitutional validity of section 5(2) on the basis of infringing the fundamental right to privacy and the government must adopt the safeguards against the arbitrariness in the exercise of the state's surveillance powers. The supreme Court observed;

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. Telephone conversation is a part of modern mans 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 mans private life. Right to privacy would certainly include telephone-conversation in the privacy of one 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.

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 authorized in this behalf, can intercept messages if satisfied that it is necessary or expedient so to do in the interest of:
  1. The sovereignty and integrity of India.
  2. The security of the State.
  3. Friendly relations with foreign states.
  4. Public order.
  5. For preventing incitement to the commission of an offence.

In PUCL[5] case the Court also laid down detailed safeguards to check arbitrariness in the issuance of telephone tapping orders, including the following measures
  1. Orders for telephone tapping may only be issued by the Home Secretary of the central government or a state government. In an emergency, this power may be delegated to an officer of the Home Department of the central or state government, and a copy of the order must be sent to the concerned Review Committee (see below) within one week.
  2. The authority making the order must consider whether the information which is considered necessary to acquire could reasonably be acquired by other means.
  3. Orders issued under the Indian Telegraph Act, 1885 shall be valid for two months from the date of issue.
  4. Review Committees shall be constituted consisting of Secretary-level officers at both the central and state levels. They may evaluate whether an interception order has been passed in compliance with the law, and if it has not, they may set it aside and direct the destruction of any copies of the intercepted communications.
  5. The authority issuing the interception order must maintain records of: (i) the intercepted communications; (ii) the extent to which material is disclosed; (iii) the number of persons to whom the material is disclosed and their identity; (iv) the extent to which the material is copied; and (v) the number of copies made (each of which must be destroyed as soon as its retention is no longer necessary).

Similarly in the case of R.M Malkani v. State of Maharashtra[6], where the hon'ble Supreme Court observed:
30. Article 21 was invoked by submitting that the privacy of the appellants conversation was invaded. Article 21 contemplates procedure established by law with regard to deprivation of life or personal liberty. The telephonic conversation of an innocent citizen will be protected by Courts against wrongful or high handed interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. It must not be understood that the Courts will tolerate safeguards for the protection of the citizen to be imperiled by permitting the police to proceed by unlawful or irregular methods.

Recently in the case of Vinit Kumar v. Central Bureau of Investigation[7], where the CBI ordered to intercept the calls of petitioner in the bribe case. Petitioner challenged the said order in High Court of Bombay on the grounds that such order were ultra-virus of section 5(2) of Indian Telegraph act,1885 because as per the rule 419 of Indian Telegraph Act CBI does not have any power to issues any order for phone tapping.

The court observed:
We may also add here that if the directions of the Apex Court in PUCL case (supra) which are now re-enforced and approved by the Apex Court in K.T. Puttaswamy (supra) as also the mandatory rules in regard to the illegally intercepted messages pursuant to an order having no sanction of law, are permitted to be flouted, we may be breeding contempt for law, that too in matters involving infraction of fundamental right of privacy under Article 21 the Constitution of India.

To declare that dehors the fundamental rights, in the administration of criminal law, the ends would justify the means would amount to declaring the Government authorities may violate any directions of the Supreme Court or mandatory statutory rules in order to secure evidence against the citizens. It would lead to manifest arbitrariness and would promote the scant regard to the procedure and fundamental rights of the citizens, and law laid down by the Apex Court.

We, therefore, quash and set aside three interception orders dated 29th October, 2009, 18th December, 2009 and 24th February, 2010 and consequently direct the destruction of copies of intercepted messages/recordings. The intercepted messages/recordings stand eschewed from the consideration of trial Court.

Following are the 10 Agencies who can intercept the conversation with the prior procedure under section 5(2), Intelligence Bureau, Central Bureau of Investigation, Enforcement Directorate, Narcotics Control Bureau, Central Board of Direct Taxes, Directorate of Revenue Intelligence, National Investigation Agency, R&AW, Directorate of Signal Intelligence and Delhi Police Commissioner.

Many times in the matrimonial disputes where the husband or wife record the phone produce before the court for seeking divorce on the basis of call recording. similarly in the case of Rayala M. Bhuvaneswari vs. Nagaphanender Rayala[8], where the husband seeking divorce by recording the call.

The court held that:
Certain astonishing facts have come to light during the hearing of this revision. One of the facts relate to the purity of the relation between the husband and wife. Without the knowledge of the wife, the husband was recording her conversation on telephone which she was making with her friends and parents in India. If the husband is of such a nature and has no faith in the wife even about her conversations to her parents, then the institution of marriage itself becomes redundant.

There should be some trust between husband and wife and in any case, in my view, the right of privacy of the wife is infringed by her husband by recording her conversation on telephone to others and if such a right is violated, which is fundamental, can such husband, who has resorted to illegal means, which are not only unconstitutional, but also immoral, later on, rely on the evidence gathered by him by such means. Clearly, it must not be permitted.

In the landmark judgement K.S Puttaswamy v. Union Of India[9], where the illegal tapping of conversation violates right to privacy is now accepted and reinforced as guaranteed fundamental right under Article 21 of the Constitution of India, by a nine Judge Constitution Bench. The K.S Puttaswamy case overruled two judgment M. P. Sharma versus Satish Chandra and Kharak Singh case.

The court observed in the K.S Puttaswamy case,
the Court also held that telephone tapping infringes the guarantee of free speech and expression under Article 19(1)(a) unless authorized by Article 19(2). The judgment relied on the protection of privacy under Article 17 of the International Covenant on Civil and Political Rights (and a similar guarantee under Article 12 of the Universal Declaration of Human Rights) which, in its view, must be an interpretative tool for construing the provisions of the Constitution.

Article 21, in the view of the Court, has to be interpreted in conformity with international law. In the absence of rules providing for the precautions to be adopted for preventing improper interception and/or disclosure of messages, the fundamental rights under Articles 19(1)(a) and 21 could not be safeguarded. But the Court was not inclined to require prior judicial scrutiny before intercepting telephone conversations. The Court ruled that it would be necessary to lay down procedural safeguards for the protection of the right to privacy of a person until Parliament intervened by framing rules under Section 7 of the Telegraph Act. The Court accordingly framed guidelines to be adopted in all cases envisaging telephone tapping.

When any officer or any person intercept or altering, or unlawfully intercepting or disclosing, messages, or divulging purport of signals the call without prior permission of authority then the person punished with imprisonment for term which may extent to three years provided under section 26[10] of Indian Telegraph act,1885.

Section 26 of Indian Telegraph act,1885

Telegraph officer or other official making away with or altering, or unlawfully intercepting or disclosing, messages, or divulging purport of signals
If any telegraph officer, or any person, not being a telegraph officer but having official duties connected with any office which is used as a telegraph office.
  1. willfully, secrets, makes away with or alters any message which he has received for transmission or delivery, or
  2. willfully, and otherwise than in obedience to an order of the Central Government or of a State Government, or of an officer specially authorized [by the Central or a State Government] to make the order, omits to transmit, or intercepts or detains, any message or any part thereof, or otherwise than in pursuance of his official duty or in obedience to the direction of a competent Court, discloses the contents or any part the contents of any message, to any person not entitled to receive the same, or
  3. divulges the purport of any telegraphic signal to any person not entitled to become acquainted with the same,

  4. he shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both.

The conclusive scope of above Article is regarding right to privacy where the Apex Court expand the scope of privacy which is part of fundamental rights of Constitution of India but it is not absolute right The limitations which operate on the right to life and personal liberty would operate on the right to privacy. Any curtailment or deprivation of that right would have to take place under a regime of law for interest of public safety. With the rules and safeguards provided by supreme court for phone tapping must follow by the individual.

  1. Article 21- protection of life and personal liberty No person shall be deprived of the life or personal liberty except according to procedure established by law
  2. Section 5(2) :-On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central Government 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 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 the 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.]
  3. Major Law Lexicon, 4th Edition, 2010
  4. AIR 1997 SC 568
  5. AIR 1997 SC 568
  6. (1973) 1 SCC 471
  7. MANU/MH 2391/ 2019
  8. MANU/AP/0907/2007
  9. (2017) 10 SCC 1
  10. Telegraph officer or other official making away with or altering, or unlawfully intercepting or disclosing, messages, or divulging purport of signals

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