BY-PRAKHAR SINGH[1]

IN THE SUPREME COURT OF INDIA

NAME OF THE CASE	People’s Union for Civil Liberties vs. Union of India & ors
CITATION	Writ petition (C) No. 256 of 1991
DATE OF THE JUDGEMENT	18 December 1996
APPELANT	People’s union for civil liberties
RESPONDANT	Union of India & ors.
BENCH/JUDGE	Kuldip Singh and S. Saghir Ahmad
STATUTES/CONSTITUTION INVOLVED	Constitution of India; Telegraph Act, 1885
IMPORTANT SECTIONS/ARTICLES	Constitution of India, Arts. 21, Arts. 19(1) (a), Arts. 19(2), Arts. 14, Arts. 32, Arts. 51, Arts. 13, Arts. 226Telegraph Act, 1885, Ss. 5(2), Ss. 7(2)(b)

ABSTRACT

People’s Union for Civil Liberties brought up recent case of telephone tapping in a PIL filed with the Supreme Court. The petitioner questioned whether Section 5(2) of the Indian Telegraph Act, 1885 was constitutional. The writ suit was submitted in response to the Central Bureau of Investigation’s (CBI) report on “Tapping of Politicians Phones”.

In this ruling, the Supreme Court determined that phone tapping without the proper precautions and without obeying the law was a violation of people’s fundamental rights to privacy. The right to privacy was included under the rights to “life” and “personal liberty” under Article 21 of the Indian Constitution, which may not be violated “unless in accordance with procedure provided by law.” It was argued that the only way to know whether the right had been infringed or not was to look into each individual incident. The Court examined Section 5(2) and found that it clearly outlined the requirements for issuing interception orders. The first need under this clause was to meet two conditions, namely the “existence of any public emergency” or in “the interest of public safety”.

INTRODUCTION

“There is nothing we like to communicate to others as much as the seal of secrecy together with what lies under it.”-Friedrich Nietzsche.

Eighth Prime Minister of India Chandra Shekhar made a shocking accusation against the V.P. Singh-led government at the time in 1990, claiming that it had illegally tapped the cell phones of 27 MPs, including his own. “The claim snowballed into a national scandal, leading to a Central Bureau of Investigation (CBI) inquiry that would disclose just how widespread, common, and illegal telephone tapping had grown during India’s politically tumultuous 1980s and early 1990s,” according to the CBI report.

 “Telephone tapping refers to secret listening or recording a communication in telephone with the intention of getting information about others activity. It is also termed as ‘Wire-tapping’ in U.S.A. Phone tapping can only be done in an official manner with permission from the department concerned. But, if it is undertaken in an unofficial and unlawful manner then it is illegal and will result in prosecution of the person responsible for breach of privacy. In India, Phone tapping can only be done in an authorized manner with permission from the department concerned.”

The act of telephone tapping has an impact on both the Constitution’s Fundamental Rights to freedom of speech and expression as well as the right to privacy. Art. 21 of the Constitution, which protects life and liberty, states that only laws passed by the legislature that adhere to just, fair, and reasonable procedures and meet constitutional requirements are permitted. In addition, it is unlawful to violate the right to freedom of expression unless Article 19 of the Constitution specifically permits it.

The People’s Union for Civil Liberties filed a public interest petition, which brought the case before the Supreme Court of India. Kuldip Singh, J.’s landmark 1996 judgment in People’s Union for Civil Liberties (PUCL) vs. Union of India[2] “affirmed that telephone tapping infringed the fundamental right to privacy, and created safeguards against arbitrariness in the exercise of the state’s surveillance powers.”

Public Interest Litigation- litigation filed in a court of law, for the protection of “Public Interest”, such as Pollution, Terrorism, Road safety, Constructional hazards etc. Any matter where the interest of public at large is affected can be redressed by filing a Public Interest Litigation in a court of law. Public interest litigation is the power given to the public by courts through judicial activism. However, the person filing the petition must prove to the satisfaction of the court that the petition is being filed for a public interest and not just as a frivolous litigation by a busy body.[3]

FACTS OF THE CASE

Telephone tapping is a grave violation of someone’s privacy. The right to conduct telephone conversations in the privacy of one’s home or place of business without interference is becoming more and more vulnerable to abuse as highly sophisticated communication technology develops. It is undeniably true that every government, no matter how democratic, engages in some level of secret operations as part of its intelligence apparatus, but at the same time, the right of citizens to privacy must be preserved from abuse by the current ruling elite.

The People’s Union of Civil Liberties, a non-profit organisation, has filed this petition under Article 32 of the Indian Constitution in the public interest, highlighting recent cases of telephone tapping. The Indian Telegraph Act, 1885 Section 5(2) has been challenged by the petitioner as being unconstitutional. In its place, it is suggested that the act’s provisions be adequately interpreted down to contain procedural protections that would eliminate arbitrariness and prevent the indiscriminate telephone tapping.

The writ petition was filed in the wake of the report on “Tapping of politicians phones” by the Central Bureau of Investigation (CBI).

ISSUE RAISED BEFORE THE COURT

• Was the right to privacy violated in accordance with Section 5(2) of the Act?

• Was it necessary to read down Section 5(2) of the Act in order to add procedural protections that would prohibit arbitrary decisions and prevent indiscriminate phone tapping?

ARGUMENTS FROM THE APPELANT SIDE

• Learned counsel for the petitioner stated that a fundamental right guaranteed by Articles 19(1) and 21 of the Constitution was the right to privacy.

• Learned counsel for the petitioner also expressed that while Section 5(2) was crucial for the various state purposes, it was essential to read in procedural safeguards to prevent Section 5(2) from being deemed unconstitutional. This would require reading down the provisions to protect the right to privacy.

• It is also expressed that messages may be intercepted in the interest of India’s security and sovereignty as well as to handle any other emergency circumstance for the protection of national interest.

ARGUMENTS FROM THE RESPONDENT SIDE

• Learned counsel representing the respondent stated that the repeal of Section 5(2) would harm public interests and jeopardise state security.

• It is also expressed that denied the allegations of misuse of power as they claimed that phone tapping can only be ordered by an officer specifically authorized by the Central or State Government and only under certain conditions and was therefore sufficiently checked.

RELATED PROVISIONS

• Constitution of India

• Article 21:- Protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to procedure established by law[4].

• Article 19(1) (a):- To freedom of speech and expression[5].

• Article 19 (2):- Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.[6]

• Article 14:- Equality before law. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.[7]

• Article 32:- Remedies for enforcement of rights conferred by this Part
• The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
• The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
• Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ).
• The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution[8].

• Article 51:- Promotion of international peace and security. The State shall endeavour to
• Promote international peace and security.
• Maintain just and honourable relations between nations.
• Foster respect for international law and treaty obligations in the dealings of organised peoples with one another; and encourage settlement of international disputes by arbitration PART IVA FUNDAMENTAL DUTIES. [9]

• Article 13:-  Laws inconsistent with or in derogation of the fundamental rights
• All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this part, shall, to the extent of such inconsistency, be void.
• The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
• In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
• Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality[10].

• Article 226:- Power of High Courts to issue certain writs
• Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
• The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
• Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without.
• Furnishing to such party copies of such petition and all documents in support of the plea for such interim order.
• Giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated.
• The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32.[11]

• Indian Telegraph Act, 1885

• 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.[12]

• Section 7(2) (b):- The precautions to be taken for preventing the improper interception or disclosure of messages.[13]

JUDGEMENT

The Honourable court stated that both the parties have adhered to Kharak Singh V. The State of U.P. and Ors[14] and hence it was ruled that Article 21 in the afore-mentioned case was discussed as the word “life” and “personal liberty” were focussed and they concluded that it includes the Right to Privacy. In Munn vs. Illinois[15], the word life was included to contain “not merely the right to the continuance of a person’s animal existence, but a right to the possession of each of his organs-his arms and legs etc.” In Wolfs Colorado, it was stated that the search by police would mean the invasion of one’s privacy and against “the very essence of a scheme of ordered liberty.” The court then referred to Semayne’s case[16], where the principle of that “every man’s house is his castle” and that it puts forward the concept of personal liberty devoid of feudalism. Thus, the court ruled that Regulation 236 clause (b) of surveillance clearly violates Article 21 (the right of a citizen to live freely from not only restricted movements but also from encroachments of his private life) and added that it should be declared as unconstitutional and struck down as no law has been laid down.

In Govind Singh V. State of Madhya Pradesh[17], this court upheld the validity of the regulations 855 and 856 of the Madhya Pradesh Police Regulations holding that Article 21 is not violated as the regulations were established by the “procedure established by law” in R.R. Gopal case[18], the court stated that “right to privacy has acquired constitutional status.” The right to privacy has not been defined as a concept in Constitution and it would depend on the facts of the case, herein the telephonic conversation in one’s home in privacy is covered under the ambit of right to privacy. Hence, telephone tapping violates Article 21 of the Constitution of India unless it is allowed by the procedure established by law.

Article 19(1) (a) of the Constitution covers right to freedom of speech and expression and this freedom guarantees a citizen to speak freely by mouth, writing, printing or in any other manner since the person is speaking on phone, he is exercising his right under Article 19 hence Telephone-tapping unless it comes within the grounds of restrictions under Article 19(2) would infract Article 19(1) (a) of the Constitution. In Keshvanand Bharti case[19], it was held that Article 51 of the Constitution directs State to respect the international law and treaties in dealing of peoples: “It seems to me that, in view of Article51 of the directive principles, this Court must interpret language of the Constitution, if not intractable, which is after all a municipal law, in the right of the United Nations Charter and the solemn declaration subscribed to by India.”

India has signed the International Covenant on Civil and Political Rights, 1966 which contains Article 17 that protection of law shall be provided to people if there is interference in their privacy. Article 12 of the Universal Declaration of Human Rights, 1948 also mentions the same. Article 17 does not run contrary to any Municipal Law of the country and “Article 21 of the Constitution has therefore, been interpreted in conformity with the international law.”

In Hukam Chand Shyam Lai vs. Union of India and Ors[20], there should be “public emergency” and not any other version of emergency mentioned in Section 5(1) of the Act. “Mere ‘economic emergency’-as the High Court calls it -may not necessarily amount to a ‘public emergency’ and justify action under this section unless it raises problems relating to the matters indicated in the section.” The court stated that the Central or the State or any other government authority cannot order for telephone- tapping unless there is public emergency, and the court interpreted public emergency as risk or threat or danger to the society at a large scale. Therefore section 5(2) of the Act allows the competent authority to pass an order in the interest of “(i) sovereignty and integrity of India, (ii) the security of the State, (iii) friendly relations with foreign States, (iv) public order or (v) for preventing incitement to the commission of an offence.” If any of the conditions mentioned above are satisfied only then will there be passing of an order. In Maneka Gandhi V. Union of India, laid down that the procedure should be fair and reasonable for all those modalities falling within the ambit of Article 21.

The court agreed that there are no procedural rules laid down for exercising the powers under Section 5(2) of the Indian Telegraph Act and also agreed that the Central Government should make rules under Section 7 of the Act to take precautions for interception of messages.

Thus, the court held that an order for telephone- tapping would not be issued rather than Home Secretary, Central Government and Home Secretary of the State Governments. “The order shall require the person to whom it is addressed to intercept in the course of their transmission by means a public telecommunication system, such communications as are described in the order. The order may also require the person to whom it is addressed to disclose the intercepted material to such persons and in such manner as are described in the order.” The order issued under Section 5(2) should cease at the end of two months from the date of issue and it can be renewed if found necessary to continue hence the total time period should not exceed six months.

The authority issuing the order should maintain the intercepted communications, to what limit is the material disclosed, to how many people the material and the identity is disclosed, to what limit the material is copied, the number of copies made of that material. It further directed that the intercepted material should be used with limited quantity and destroyed after its usage if no longer needed. A Review Committee should be formed comprising of the Cabinet Secretary, Law Secretary and the Secretary, Telecommunication to be installed at the level of Central Government and at the State level there should be a Review Committee consisting of Chief Secretary, Law Secretary and another member other than Home Secretary appointed by the State Government. The Committee should see that relevant orders have been passed under Section 5(2) of the Act. If on investigation, it is found that there has been contravention of Section 5(2) of the Act, the destruction of copies should be ordered otherwise the committee should record the finding to that effect and hence the petition was disposed of.

CONCLUSION

According to me, the remedy is judicial oversight of executive surveillance actions and laws, and this oversight must aim to increase systemic transparency. We need stronger regulations and oversight systems to ensure that people’s privacy is safeguarded from being abused or used without their knowledge in the digital age. This verdict has shown to be ineffectual because illegal monitoring activities are far more advanced than what the case dealt with.  In this era of advanced technology, the threat to privacy is real and has grown. One’s privacy is violated because information is accessible to organisations other than those authorised by the State. In such a delicate situation, it is necessary to take appropriate precautions and strike a balance between the rights of the population and the interests of the State.

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[1] Author is 3^rd semester student of Amity Law School, Lucknow.

[2] People’s Union for Civil Liberties (PUCL) vs. Union of India, (1997) 1 SCC 301.

[3] DRISHTI IAS, https://www.drishtiias.com/to-the-points/Paper2/public-interest-litigation (last visited, Jul. 22, 2022)

[4] INDIA CONST. art. 21.

[5] INDIA CONST. art. 19, cl. 1, cl. a.

[6] INDIA CONST. art. 19, cl. 2.

[7] INDIA CONST. art. 14.

[8] INDIA CONST. art. 32.

[9] INDIA CONST. art. 51.

[10] INDIA CONST. art. 13.

[11] INDIA CONST. art. 226.

[12]  Indian Telegraph Act, 1885, §5, cl. 2.

[13]  Indian Telegraph Act, 1885, §7, cl. 2, cl. b.

[14]  Kharak Singh vs. the State of U.P. and Ors, AIR 1963 SC 1295.

[15]  LAWCORNELL, https://www.law.cornell.edu/supremecourt/text/94/113 (last visited Jul. 23, 2022).

[16]  Semayne’s case, 1604 5 Co Rep 91 a.

[17]  Govind Singh vs. State of Madhya Pradesh, AIR 1975 SC 1378.

[18]  R. Rajagopal vs. State of T.N, AIR 1995 SC 264.

[19]  Kesavananda Bharati vs. State of Kerala, AIR 1973 SC 1461.

[20]  Hukam Chand Shyam Lai vs. Union of India and Ors, AIR 1976 SC 789.