Safiya Malik

The High Court of Madras Single Bench of Justice N Anand Venkatesh held that the interception orders issued under Section 5(2) of the Indian Telegraph Act authorising phone tapping of the petitioner were without jurisdiction. The court quashed the orders and directed that the intercepted materials collected pursuant to such orders shall not be used for any purpose whatsoever. It held that the order violated the fundamental right to privacy under Article 21 of the Constitution of India and directed destruction of all intercepted records obtained through the impugned orders.

This writ petition was filed under Article 226 of the Constitution of India challenging an order dated 12.08.2011 passed by the first respondent under Section 5(2) of the Telegraph Act, 1885 and Rule 419-A of the Telegraph Rules, 1951 authorising tapping of the petitioner’s mobile phone by the second respondent.

The petitioner sought quashing of the interception order and declaration of intercepted telegraphic messages/conversations to and from 98410-77377 as invalid.

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The interception was authorised on 12.08.2011 alleging that it was necessary for reasons of public safety, public order, and to prevent incitement to commission of an offence. Pursuant to this, on 29.08.2011, the third respondent registered an FIR in RC MA1 2011 A 0033 of 2011 against Mr. Andasu Ravinder (A1), Additional Commissioner of Income Tax, Company Range, Chennai; the petitioner (A2); and Mr. Uttam Bohra (A3) for offences under Section 120-B IPC and Section 7 of the Prevention of Corruption Act, 1988.

The FIR alleged that A1 conducted a search in the business premises of M/s. Everonn Education Limited which had concealed taxable income. A1 allegedly demanded a bribe of Rs.50 lakhs from A2 to help the company evade taxes. Pursuant to this conspiracy, A2 was to hand over the money to A1 later that night and A3, a friend of A1, was to take the money thereafter to an unknown place.

The CBI officials proceeded to Aayakar Bhavan Campus around 8:55 pm, took positions and saw A3’s car proceeding towards A1’s residence. A3 alighted and proceeded to the stairs leading to A1’s residence. A1 came down with a carton box in a polythene bag and boarded A3’s car. The CBI officials intercepted and apprehended A1 and A3. The carton box was seized and found to contain Rs.50 lakhs. Neither A1 nor A3 could satisfactorily explain the money. The CBI did not allege that A2 was present at the spot.

The CBI completed investigation and filed a final report before the 9th Additional District Court-cum-Special Court for CBI Cases, Chennai, taken on file as C.C.No.3 of 2013.

The petitioner had earlier challenged the order dated 12.08.2011 under Section 5(2) by filing Crl.O.P.No.12404 of 2014. The High Court granted interim stay on 06.06.2014 which continued. The petition was dismissed on 27.10.2017 granting liberty to challenge the order before the appropriate forum. Hence, this writ petition was filed under Article 226.

The first respondent filed its counter stating that the order was passed in strict compliance with Section 5(2) and Rule 419-A as the petitioner was having conversations to commit an offence. It cited Hukam Chand Shyam Lal v. Union of India (1976) 2 SCC 128 and R.M. Malkani v. State of Maharashtra (1973) 1 SCC 471 to argue that right to privacy is not available to a guilty citizen against police efforts to vindicate the law.

The third respondent filed counter for itself and on behalf of the second respondent contending that based on source information the CBI registered the FIR, deputed a team for search under Section 165 CrPC at A1’s residence. The interception was necessary for detection, prevention, investigation, and prosecution of corrupt activities. The order was passed by the Home Secretary with complete application of mind and carried presumption of constitutionality. The guidelines in PUCL v. Union of India AIR 1997 SC 568 were complied with. The CBI argued that corruption impacts public safety as it undermines reputation of public institutions. It also stated there was no violation of safeguards under Rule 419-A and the power to take voice samples has been upheld in Ritesh Sinha v. State of U.P. AIR 2019 SC 3592 and Sanjay Bhandari v. Secretary to Government of India, Ministry of Home Affairs & Anr [WP.Nos.5466 & 5470 of 2020].

The petitioner’s reply affidavit contended that the order mechanically repeated expressions used in Section 5(2) without application of mind. It cited PUCL, K.S. Puttaswamy v. Union of India (2017) 10 SCC 1, and other High Court decisions quashing similar orders. It argued that unless public emergency or public safety existed, Section 5(2) cannot be invoked. The government’s press note dated 25.04.2011 reiterated that phone tapping must strictly comply with Section 5(2) and PUCL guidelines. The intercepted conversations were not placed before the Review Committee as mandated under Rule 419-A. The order being without jurisdiction, evidence obtained must be wiped out as unconstitutional. It argued that Pooran Mal v. Director of Inspection (AIR 1974 SC 348) and R.M. Malkani were decided before right to privacy was recognised under Article 21, and the First Bench of Madras High Court in SNJ Breweries v. Principal Director of Income Tax (2024) 2 CWC 727 held they require re-look post Puttaswamy.

The learned ASG appearing for respondents countered that Section 5(2) should accommodate newer contingencies like corruption affecting public safety, and restricting public safety to situations evident to a reasonable person would exclude hidden threats. The interception was necessary to prevent and detect corruption. He argued evidence obtained remains admissible even if the order is set aside.

The court framed the following questions for consideration:

1. What is the scope of right to privacy under Article 21 in the context of telephone conversations? Does unauthorised phone tapping violate Article 21?

2. Does the impugned order meet requirements of Section 5(2)?

3. Have procedural safeguards under Rule 419-A been complied with?

4. If not, what is the effect of evidence collected pursuant to unconstitutional phone tapping?

The court observed: “The right to privacy has, for long, been regarded as one of the most sacred liberties of the subject. Long before, it took its roots in this country, its existence was recognized and upheld by the Courts under the common law for several centuries in the context of privacy of one’s property and possessions.”

It recorded historical evolution of the right to privacy, quoting Seymane v. Richard Gresham (1604 All ER Rep.62) declaring: “The house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose.”

Referring to Huckle v. Money (95 ER 768): “… To enter a man's house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition; a law under which no Englishman would wish to live an hour….”

In Entick v. Carrington (1765) 19 Howells' State Trials 1029, Lord Camden observed: “The great end for which men entered into society was to secure their property. That right is preserved sacred and incommunicable in all instances where it has not been taken away or abridged by some public law for the good of the whole…. By the laws of England, every invasion of private property, be it even so minute, is a trespass. No man can set foot upon my ground without my licence but he is liable to an action though the damage be nothing.”

The court noted William Pitt’s 1781 declaration: “The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter, the rain may enter—but the King of England cannot enter—all his force dare not cross the threshold of the ruined tenement.”

In Boyd v. United States (116 US 616), it was held: “It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty. and private property, where that right has never been forfeited by his conviction of some public offense,—it is the invasion of this sacred right which underlies and constitutes the essence of Lord CAMDEN's judgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony, or of his private papers to be used as evidence to convict him of crime, or to forfeit his goods, is within the condemnation of that judgment.”

Justice Brandeis in his dissent in Olmstead v. United States (1928) was quoted: “Discovery and invention have made it possible for the government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet. The progress of science in furnishing the government with means of espionage is not likely to stop with wire tapping… Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

The court observed that Justice Brandeis’ dissent became law in Katz v. United States (1967) where it was held: “The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment.”

The court then analysed Indian jurisprudence, stating: “In M.P. Sharma, a Bench of 8 Judges held that there was no fundamental right to privacy under the Constitution. In Kharak Singh, the majority held likewise, but Subba Rao, J. in dissent held that right to privacy was an essential ingredient of personal liberty under Article 21.”

It quoted Subba Rao, J.: “It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty… If physical restraints on a person's movements affect his personal liberty, physical encroachments on his private life would affect it in a larger degree.”

The court discussed Gobind v. State of M.P., where it was held: “There can be no doubt that privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior.”

In R. Rajagopal v. State of Tamil Nadu, the Supreme Court declared: “The right to privacy is implicit in the right to life and liberty guaranteed under Article 21. It is the right to be let alone.”

The court cited PUCL v. Union of India: “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… We have, therefore, no hesitation in holding that right to privacy is a part of the right to “life” and “personal liberty” enshrined under Article 21 of The Constitution.”

It quoted K.S. Puttaswamy v. Union of India: “It was unanimously declared that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21.”

The court recorded: “Section 5(2) of the Telegraph Act requires public emergency or public safety as sine qua non for phone tapping. Neither the occurrence of public emergency nor the interest of public safety are secretive conditions or situations. Either of the situations would be apparent to a reasonable person.”

It cited PUCL again: “Even if the Government is satisfied that interception is necessary in the interests of sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order or preventing incitement to commission of offence, it cannot intercept messages unless a public emergency has occurred or the interest of public safety requires.”

The court stated: “In the instant case, a perusal of the impugned order shows that there is no mention of any public emergency. The order mechanically reproduces statutory phrases without recording satisfaction of existence of public emergency or public safety.”

It observed: “The interception was carried out as part of a covert operation. Such covert surveillance is not public emergency or public safety as contemplated under Section 5(2).”

The court recorded: “There has been non-compliance with Rule 419-A(17) which mandates that the Review Committee shall record its findings as to whether directions issued under Section 5(2) are in accordance with the provisions and if not, set aside the directions and order destruction of intercepted messages.”

It stated: “In the instant case, the intercepted material has not been placed before the Review Committee at all. Thus, there has been complete non-compliance of mandatory provisions.”

The court held: “The impugned order is unconstitutional and void under Article 13 and no rights or liabilities can flow from it. The evidence obtained under such an order cannot be used for any purpose whatsoever.”

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The court issued the following directives:

The impugned order dated 12.08.2011 bearing No.14/3/97-CBI passed by the first respondent is quashed. The court directed that the intercepted conversations collected pursuant to the impugned order shall not be used for any purpose whatsoever. The intercepted materials collected in violation of Section 5(2) of the Telegraph Act and Rule 419-A(17) of the Rules shall be destroyed as mandated under Rule 419-A(17).

It is clarified that this direction shall have no bearing on other material collected by the CBI subsequent to and independent of the intercepted call records. Such material shall be considered by the Trial Court on its own merits without being influenced by any observations made in this order.

In the result, the writ petition is allowed. No costs. Consequently, the connected WMPs are closed.

Advocates Representing the Parties

For the Petitioners: Mr. Sharath Chandran for Mr. Rajagopal Vasudevan

For the Respondents: Mr. AR.L. Sundaresan, Assistant Solicitor General assisted by Mr. T.V. Krishnamachari, Special Public Prosecutor and assisted by Mr. K. Srinivasan, Special Public Prosecutor

Case Title: P. Kishore Vs. The Secretary to Government, Ministry of Home Affairs & Ors.

Case Number: WP.No.143 of 2018

Justice: Justice N. Anand Venkatesh