By: Sweety Kumari
|NAME OF THE CASE||People’s Union of Civil Liberties v. Union of India and Another|
|CITATION||AIR 1997 SC 568, (1997) 1 SCC 301|
|DATE OF THE CASE||December 18, 1996|
|PETITIONER||People’s Union of Civil Liberties|
|RESPONDENT||Union of India|
|BENCH/JUDGE||K Singh & S S Ahmad|
|STATUTES/CONSTITUTION INVOLVES||The Constitution of India; The Indian Telegraph Act, 1885|
|IMPORTANT SECTIONS||The Constitution of India —Article 19(1), 21 The Indian Telegraph Act, 1885 — Section 5(2), 7(2)(b)|
In the present case a public interest litigation has been filed by the People’s Union of Civil Liberties challenging the validity of the Section 5(2) of the Indian Telegraph Act, 1885 claiming that it violated the right of privacy of the individuals. In this case the Supreme Court held that phone tapping is violative of any individual’s right to privacy if it is done without following the proper safeguards and legal process. The Court stated that Section 5(2) had some specific circumstances where phone can be tapped but also sated that for reasonable exercise of this power the procedural safeguards were absent. The Apex Court laid down certain detailed guidelines for exercising this power so that right to privacy is protected.
In the present case the Supreme Court held that phone tapping without following legal procedure was violative of right of privacy which is a fundamental right. It held that this right cannot be violated except by following a procedure which is established by the law. It criticised the executive for not following the appropriate procedure and misusing its power of surveillance.
Right to privacy is a right which is included in “right to life and personal liberty” which is a fundamental right enshrined in Article 21 granted to individuals which cannot be infringed except by a procedure established by law. Article 19 also states certain important rights of personal liberty granted to the citizens by the Constitution of India.
The Court also stated that in the absence of a fair procedure for regulating the exercise of powers under Section 5(2) of the Indian Telegraph Act it is difficult to protect the rights of citizens which is guaranteed to them under Article 19 and Article 21 of this Constitution.
FACTS OF THE CASE
In this case a public interest litigation has been filed by a voluntary organisation, named PUCL which challenged the validity of Section 5(2) of the Indian Telegraph Act, 1885. This section empowered the Union or the State Government the right to intercept messages during any public emergency or for the cause of public safety if it is satisfied that there is a necessity to do so on the grounds of sovereignty and integrity of the nation, friendly relations with foreign states and public order. The aforementioned section was challenged by a PIL under Article 32 of the Indian Constitution because there was a report of the Central Bureau of Investigation indicating that politician’s phones were tapped and there were several procedural lapses in tapping of the phones which was conducted by Mahanagar Telephone Nigam Limited (MTNL) at the government officials’ request.
ISSUES RAISED BEFORE THE COURT
- Whether section 5(2) of the Indian Telegraph Act was infringing the right to privacy of the citizens?
- Whether there was a requirement to include procedural safeguards in Section 5(2) in order to remove arbitrariness and prevent indiscriminate tapping of phones?
ARGUMENTS FROM THE PETITIONER SIDE
- Learned counsel for the petitioner argued that right to privacy is a fundamental right guaranteed by the Constitution under Articles 19(1) and 21 and these rights should not be violated.
- He further contended that it is essential to read down the provisions of section 5(2) of the Indian Telegraph Act to protect the right to privacy.
- He also contented that judicial scrutiny of the decisions should be made as the only procedural safeguard that could remove arbitrariness and unreasonableness.
ARGUMENTS FROM THE RESPONDENT SIDE
- Learned counsel for the respondent argued that removing Section 5(2) will affect public interest and security of the state.
- He further argued that there is no misuse of power by the Government as it can only be ordered by a specifically authorised officer appointed by the Government, under certain situations and after recording of the reasons for tapping of the phone.
- He also contended that the person whose phone has been tapped cannot be informed about the same because it could defeat the purpose for which the phone was tapped.
Constitution of India
Article 19(1)(A): – (1) All citizens shall have the right
- to freedom of speech and expression;
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
The 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.]
Section 7(2)(b): –
Power to make rules for the conduct of telegraphs. —
(2) Rules under this section may provide for all or any of the following among other matters, that is to say: —
(b) the precautions to be taken for preventing the improper interception or disclosure of messages;
The Supreme Court held that though there is no express provision of right to privacy in the Constitution of India but it is a part of right to life and personal liberty guaranteed under Article 21 which cannot be affected except by a procedure established by law. It could only be judged on a case-to-case basis that this right has been infringed or not. Therefore, telephone tapping will amount to infringement of right to privacy unless it is done in accordance with the procedure established by law.
“Telephone-Tapping is a serious invasion of an individual’s privacy. With the growth of highly sophisticated communication technology, the right to hold telephone conversation, in the privacy of one’s home or office without interference, is increasingly susceptible to abuse. It is no doubt correct that every Government, howsoever democratic, exercises some degree of sub rosa operation as a part of its intelligence out-fit but at the same time citizen’s right to privacy has to be protected from being abused by the authorities of the day”.
The Court stated that telephonic conversations in the privacy of one’s home or office without interference come under within the right to privacy. Telephonic conversations would be considered a citizen’s right to freedom of speech and expression under Article 19(1)(a) of the Constitution and these conversations can only be restricted through the grounds mentioned in Article 19(2).
Commission’s report which stated that “tapping of telephones was a serious invasion of privacy”. The report also stated that “tapping cannot be regarded as a tort because the law as it stands today does not know of any general right to privacy”. The report recommended that telephones must not be tapped but it can be tapped in situations like national security, crime investigation, public order.
The Court then examined Section 5(2) of the Indian Telegraph Act and noticed that the section clearly indicates the situations where interception orders can be given by the Government. For the issuance of the interception orders two conditions needed to be met – any public emergency has aroused or the orders can be passed only in the interest of public safety by the officer appointed and authorised by the Government for this purpose. He can pass the orders only when there is utmost necessity in the interest of following five bases:
- Sovereignty and integrity of India;
- Security of the State;
- Friendly relations with foreign States;
- Public order; or
- Preventing incitement to the commission of an offence.
And the orders can be passed by the officer only after recording of the reasons which should be in writing.
The Court stated that Section 5(2) cannot be declared unconstitutional but the two conditions and the five grounds under Section 5(2) should be followed while passing the interception orders. The Court further refused to impose judicial scrutiny as the single procedural measure before passing the interception orders and stated that this power is with the Central Government according to Section 7 of the Act.
Meanwhile, the Court laid certain guidelines in the interim period to remove unreasonableness and arbitrariness.
The guidelines stated by the Court are as follows:
- Only the Home Secretary of the Central Government or of a State Government is empowered to issue the order of telephone tapping and in emergency only this power can be delegated.
- The authority who is passing such orders must be satisfied that phone tapping was essential to obtain the information.
- The order for interception will cease to have effect after two months from issuance of such order unless it is renewed and total time period for the operation of such order is six months.
- The records should be maintained for the interception orders and the procedure followed for it.
- Review committees is to be formed to check that the orders are in accordance with the law.
Through this case the Supreme Court ruled out that privacy of the citizen is fundamental right guaranteed by this Constitution. It cannot be infringed by the Government except under certain specific situations, Phone tapping also comes under infringement of privacy, Government can tap phones with utmost care and following the whole procedure safeguards and specified legal process and there should be just reason for tapping of the phones.
In my view the Supreme Court has taken decision for betterment of the citizens since privacy is also considered vital for an individual and this decision has also given a space to the Government to sought important information regarding the national security and maintenance of public order which is also of utmost important.
 The Constitution of India, 1950, Article 19(1)(a)
 The Constitution of India, 1950, Article 21
 The Indian Telegraph Act, 1885, Section 5(2)
 The Indian Telegraph Act, 1885, Section 7(2)(b)
 People’s Union of Civil Liberties v. Union of India and Another, AIR 1997 SC 568, (1997) 1 SCC 301