PETITIONER:
PEOPLE‘S UNION FOR CIVILLIBERTIES (PUCL)
Vs.
RESPONDENT:
THE UNION OF INDIA AND ANOTHER
DATE OF JUDGMENT: 18/12/1996
BENCH:
KULDIP SINGH, S.SAGHIR AHMAD
ACT
HEADNOTE
JUDGMENT
JUDGMENT
Kuldip Singh, J. Telephone - Tapping is a serious invasion of an individual’s privacy. With the growth of highly sophisticated communication technology, the right to sold 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 subrosa operation as a part of its intelligence outfit but at the same time citizen’s right to privacy has to be protected from being abused by she authorities of the day.
This petition - public interest - under Article 32 of the Constitution of India has been filed by the People’s Union of Civil Liberties, a voluntary organisation, high lighting the incidents of telephone tapping in the recent past. The petitioner has challenged the constitutional validity of Section 5(2) of the Indian Telegraph Act, 1885 (the Act), in the alternative it is contended that the said provisions be suitably read-down to include procedural safeguards to rule out arbitrariness and to 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). Copy of the report as published in the "Mainstream" volume XXIX dated March 26.1991 has been placed on record along with the rejoinder filed by the petitioner. The authenticity of the report has not been questioned by the learned counsel for the Union of India before us. Para 21 and 22 of the report are as under :
"21. Investigation has revealed the
following lapses on the part of
MTNL i) In respect of 4 telephone
numbers though they were shown to
be under interception in the
statement supplied by MTNL, the
authorisation for putting the
number under interception could not
be provided. This shows that
records have not been maintained
properly.
ii) In respect of 279 telephone
numbers, although authority letters
from various authorised agencies
were available, these numbers have
not been shown in list supplied by
MTNL showing interception of
telephones to the corresponding
period. This shows that lists
supplied were incomplete.
iii) In respect of 133 cases,
interception of the phones were
done beyond the authorised part.
The GM (0) MTNL in his explanation
has said that this was done in good
faith on oral requests of the
representatives of the competent
authorities and that interception
beyond authorised periods will be
done only on receipt of written
requests.
iv) In respect of 111 cases;
interception of telephones have
exceeded 180 days period and no
permission of Government for
keeping the telephone under
interception beyond 180 days was
taken.
v) The files pertaining to
interception have not been
maintained properly.
22. Investigation has also revealed
that various authorised agencies
are not maintaining the files
regarding interception of
telephones properly. One agency is
not maintaining even the log books
of interception. The reasons for
keeping a telephone number on watch
have also not been maintained
properly. The effectiveness of the
results of observation have to be
reported to the Government in
quarterly returns which is also not
being sent in time and does not
contain all the relevant
information. In the case of
agencies other than I.B., the
returns are submitted to the MHA.
The periodicity of maintenance of
the records is not uniform. It has
been found that whereas DRI keeps
record for the last years, in case
of I.B., as soon as the new
quarterly statement is prepared,
the old returns are destroyed for
reasons of secrecy. The
desirability of maintenance of
unireturn and periodicity of these
documents needs to be examined.
Section 5(2) of the Act is as under
"5(2) - On the occurrence of any
public emergency, or in the
interest of public safety, the
Central Government or a State
Government or any Officer specially
authorised in this behalf by the
Central Govt. 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
and offence, for reasons to be
recorded in writing, by order,
direct that any message clear of
messages to or from any person or
class of persons, 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 detailed, or shall
be disclosed to the Government
making the order or an officer
thereof mentioned in the order:
Provided that press message
intended to be published in India
of correspondents accredited to the
Central Government or a States
Government shall not be intercepted
or detained, unless their
transmission has been prohibited
under this sub-section".
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 authorised in this behalf, can intercept messages if satisfied that it is necessary or expedient so to do in the interest of :
(i) The sovereignty and integrity of India.
(ii) The security of the State.
(iii) Friendly relations with foreign states.
(iv) Public order.
(v) For preventing incitement to the commission of an
offence.
The CBI report indicates that under the above provisions of law Director Intelligence Bureau, Director General Narcotics Control Bureau, Revenue Intelligence and Central Economic Intelligence Bureau and the Director Enforcement Directorate have been authorised by the Central Government to do interception for the purposes indicated above. In addition, the State Governments generally give authorisation to the Police/Intelligence agencies to exercise the powers under the Act.
The Assistant Director General Department of Telecom has filed counter affidavit on behalf of the Union of India. The stand taken by the Union of India is as under :
"The allegation that the party in
power at the Centre/State or
officer authorised to tap the
telephone by the Central/State
Government could misuse this power
is not correct. Tapping of
telephone could be done only by the
Central/State Government order By
the Officer specifically
authorised by the Central/State
Government in their behalf and it
could be done only under certain
conditions such as National
Emergency in the interest of public
safety security of States public
order etc. It is also necessary to
record the reasons for tapping
before tapping is resorted to. If
the party whose telephone is to be
tapped is to be informed about this
and also the reasons for tapping it
will defeat the very purpose of
tapping of telephone. By the very
sensitive nature of the work, it is
secrecy in the matter. In spite of
safeguards, if there is alleged
misuse of the powers regarding
tapping of telephones by any
authorised officer, the aggrieved
part could represent to the state
Government and suitable action
could be taken as may be necessary.
Striking down the provision section
5(2) of the Indian telegraph Act,
is not desirable as it will
jeopardise public interest and
security of the State".
Section 7 (2)(b) of the Act which gives making power to the Central Government is as under :
"7. Power to make rules for the
conduct of telegraphs -- (1) The
Central Government mays from time
to time, by notification in the
official Gazetted make rules
consistent with this Act for the
conduct of all or any telegraphs,
established, maintained or worked
by the Government or by persons
licensed under this Act.
(2) Rules under this section may
provide for all or any of the
following, among other matters that
is to say:
(a) xx xx
(b) the precautions to be taken for
preventing the improper
interception or disclosure of
message".
No rules have been framed by the Central Government under the provisions quoted above.
Mr. Rajinder Sachar, Sr. Advocate assisted by Mr. Sanjay Parikh vehemently contended that right to privacy is a fundamental right guaranteed under Article l9(1) and Article of the Constitution of India. According to Mr. Sachar to save Section 5(2) of the Act from to being declared unconstitutional it is necessary to read down the said provision to provide adequate machinery to safeguard the right to privacy. Prior judicial sanction - ex-parte in nature - according to Mr. Sachar, is the only safeguard, which can eliminate the element of arbitrariness or unreasonableness. Mr. Sachar contended that not only the substantive law but also the procedure provided therein has to be just, fair and reasonable.
While hearing the arguments on September 6, 1995, this Court passed the following order.
"Mr.Parikh is on his legs. He has
assisted us in this matter for
about half an hour. At this stage,
Mr. Kapil Sibal & Dr. Dhawan, who
are present in Court, stated that
according to them the matter is
important and they being
responsible members of the Bar,
are duty bound to assist this Court
in a matter like this. We
appreciate the gesture. We permit
them to intervene in this matter.
They need a short adjournment to
assist us.
The matter is adjourned to October
11, 1995".
While assisting this Court Mr. Kapil Sibal at the out set stated that in the interest of the security and sovereignty of India and to deal with any other emergency situation for the protection of national interest, messages may indeed be intercepted. According to him the core question for determination is whether there are sufficient procedural safeguards to rule out arbitrary exercise of power under the Act. Mr. Sibal contended that Section 5(2) of the Act clearly lays down the conditions/situations which are sine qua non for the exercise of the power but the manner in which the said power can be exercised has not been provided. According to him procedural safeguards short of prior judicial scrutiny - shall have to be read in Section 5(2) of the Act to save it from the vice of arbitrariness.
Both sides have relied upon the seven-Judge Bench judgment of this Court in Kharak Singh V. The State of U.P. & Ors. (1964) 1 SCR 332. The question for consideration before this Court was whether "surveillance" under Chapter XX of the U.P.Police Regulations constituted an infringement of any of the fundamental rights guaranteed by Part III of the Constitution. Regulation 236(b) which permitted surveillance by "domiciliary visits at night" was held to be violative of Article 21 on the ground that there was no "law" under which the said regulation could be Justified.
The word "life" and the expression "personal liberty" in Article 21 were elaborately considered by this court in Kharak Singh‘s case. The majority read "right to privacy" as part of the right to life under Article 21 of the Conctitution on the following reasoning:
"We have already extracted a
passage from the judgment of Field,
J. in Munn vs Illinois (1877) 94
U.S. 113, 142 were the learned
Judge Pointed out that "life" in
the 5th and 14th Amendments of the
U.S. Constitution corresponding to
Art.21, means 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. we do
not entertain any doubt that the
word "life" in Art.21 bears the
same signification. Is then the
work "personal liberty" to be
constructed as excluding from its
purview an invasion on the part of
the police of the sanctity of man’s
home and an intrusion into his
personal security and his right to
sleep which is the normal comfort
and a dire necessity for human
existence even as an animal? It
might not be inappropriate to refer
here to the words of the preamble
to the Constitution that it is
designed to "assure the dignity of
the individual" and therefore of
those cherished human value as the
means of ensuring his full
development and evolution. We are
referring to these objectives of
the framers merely to draw
attention to the concepts
underlying the constitution which
would point to such vital words as
"personal reasonable manner and to
be attributed that sense which
would promote and achieve those
objectives and by no means to
stretch the meaning of the phrase
to square with any preconceived
notions or doctrinaire
constitutional theories.
Frankfurter, J. observed in Wolf v.
Colorado (1949) 338 US
"The security of one’s privacy
against arbitrary intrusion by the
police is basic to a free society.
It is therefore implicit in the
concept of ordered party and as
such enforceable against the States
through the Due Process Clause. The
knock at the door, whether by day
or by night as a prelude to a
search without authority of law but
solely on the authority of the
police, did not need the commentary
of recent history to be condemned
as inconsistent with the conception
of human rights enshrined in the
history and the basic
constitutional documents of
English-speaking peoples We have
no hesitation in saying that here a
State affirmatively to sanction
such police incursion into privacy
it would run counter to the
guaranty of the Fourteenth
Amendment."
Murphy, J. considered that such
invasion was against "the very
essence of a scheme of ordered
liberty".
It is true that in the decision of
the U.S. Supreme Court from which
we have made these extracts, the
Court had to consider also the
impact of violation of the Fourth
Amendment which reads.
"The right of the people to be
secure in their persons, houses,
papers, and effect, against
unreasonable searches and seizures,
shall to be violated; and no
warrants shall issue but upon
probable cause, supported by oath
or affirmation, and particularly
describing the place to be
searched, and the persons of things
to be seized."
and that our constitution does not
in terms confer any like
constitutional guarantee.
nevertheless, these extracts would
show that an unauthorised intrusion
into a person’s home and the
disturbance caused to him thereby,
is as it were the violation of a
common law right of a manan
ultimate essential of ordered
liberty, if not of the very concept
of civilisation. An English common
Law maxim asserts that "every man’s
house is his castle" and in
Semayne‘s case (1604) 5 Coke 91,
where this was applied, it was
stated that "the house of everyone
is to him as his castle and
fortress as well as for his defence
against injury and violence as for
his repose" We are not unmindful of
the fact that Semayne’s case was
concerned with the law relating to
executions in England, but the
passage extracted has a validity
quite apart from the context of the
particular decision. It embodies an
abiding principle which transcends
mere protection of property rights
and expounds a concept of "personal
liberty" which does not rest on any
element of feudalism or on any
theory of freedom which has ceased
to be of value.
In our view cl.(b) of Regulation
236 is plainly violative of Art 21
and as there is no law on which the
same could be justified it must be
struck down as unconstitutional."
Subba Rao, J. (as the learned Judge then was) in his minority opinion also came to the conclusion that right to privacy was a part of Article 21 of the Constitution but went a step further and struck down Regulation 236 as a whole on the following reasoning:
"Further, the right to personal
liberty takes in not only a right
to be free from restrictions placed
on his movements, but also free
from encroachments on his private
life. 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
Every democratic country
sanctifies domestic life; it is
expected to give him rest, physical
happiness, peace of mind and
security. In the last resort, a
person’s house, where he lives with
his family, is his "castle" " it is
his rampart against encroachment on
his personal liberty. The pregnant
words of that famous judge,
Frankfurter J., in Wolf v. Colorado
(1949) 338 US 25, pointing out the
importance of the security of one’s
privacy against arbitrary
instruction by the police, could
have no less application to an
Indian home as to an American one.
If physical encroachments on
person’s movements affect his
personal liberty, physical
encroachments on his private life
would affect it in a larger degree.
Indeed, nothing is more deleterious
to a man’s physical happiness and
health than a calculated
interference with his privacy. We
would, therefore, define the right
of personal liberty in Art. 21 as a
right of an individual to be free
from restrictions or encroachments
on his person, whether those
restrictions or encroachments are
directly imposed or indirectly
brought about by calculated
measures, If so understood, all the
acts of surveillance under
Regulation 236 infringe the
fundamental right of the petitioner
under Art, 21 of the Constitution."
Article 21 of the Constitution has, therefore, been interpreted by all the seven learned Judges in Kharak Singh’s case (majority and the minority opinions) to include that "right to privacy" is a part of the right to "protection of life and personal liberty" guaranteed under the said Article.
In Govind vs. State of Madhya Pradesh (1975) 2 SCC 148, a three-Judge Bench of this Court considered the constitutional validity of Regulations 855 and 856 of the Madhya Pradesh police Regulation his provided surveillance by way of several measures indicated in the said regulations. This Court upheld the validity of the regulations by holding that Article 21 was not violated because the impugned regulation procedure established by law in terms of the said article.
In R. Rajgopal alias R.R. Gopal and another vs. State of Tamil Nadu (1994) 6 SCC 632, Jeevan Reddy,J. speaking for the Court observed that in recent times right to privacy has acquired constitutional status. The learned Judge referred to Kharak’s case, Govind’s case and considered a large number of American and English cases and finally came to the conclusion that "the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right "to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters".
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. Once the facts in a given case constitute a right to privacy; Article 21 is attracted. The said right cannot be curtailed "except according to procedure established by law".
The right 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 infrigned 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 man’s 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 a man’s private life. Right to privacy would certainly include telephone-conversation in the privacy of one’s 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.
Right to freedom of speech and expression is guaranteed under Article 19(1) (a) of the Constitution. This freedom means the right to express ones convictions and opinions freely by word of mouth, writing, printing, picture, or in any other manner. When a person is talking on telephone, he is exercising his right to freedom of speech and expression. Telephone-tapping unless it comes within the grounds of restrictions under Article 19(2) would infract Article 19(1)(a) of the Constitution.
India is a signatory to the International Covenant on Civil and Political Rights, 1966. Article 17 of the said covenant is as under:
"Article 17
1. No one shall be subject to
arbitrary or unlawful interference
with his privacy, family, human or
correspondence, nor to lawful
attacks on his honour and
reputation.
2. Every one has the right to the
protection of the law against such
interference or attacks."
Article 12 of the Universal Declaration of Human Rights, 1948 is almost in similar terms.
International law today is not confined to regulating the relations between the States. Scope continues to extend. Today matters of social concern, such as health, education and economics apart from human rights fall within the ambit of International Regulations. International law is more than ever aimed at individuals.
It is almost accepted proposition of law that the rules of customary international law which are not contrary to the municipal law shall be deemed to be incorporated in the domestic law.
Article 51 of the Constitution direct that the State shall endeavour to inter alia, foster respect for international law and treaty obligations in dealings of organised peoples with one another. Relying upon the said Article, Sikri, C.J in Kesavananda Bharathi vs. State of Kerala (1973) Supp. SCR 1 observed as under:
"it seems to me that, in view of
Article 51 of the directive
principles, this Court must
interpret language of the
Constitution, if not intractable,
which is after all a municipal law
in the light of the United Nations
Charter and the solemn declaration
subscribed to by India."
In A.D.M. Jabalpur vs. S. Shukla, Khanna J. in his minority opinion observed as under:
"Equally well established is the
rule of construction that if there
be a conflict between the municipal
law on one side and the
international law or the provisions
of any treaty obligations on the
other the Courts would give effect
to municipal law. If, however two
constructions of the municipal law
are possible, the Courts should
lean in favour of adopting such
construction as would make the
provisions of the municipal law to
be in harmony with the
international law on treaty
obligations. Every statutes
according to this rule
interpreted, so far as its language
permits. so as not to be
inconsistent with the comity of
nations on the established rules of
international law, and the court
will avoid a construction which
would give rise to such
inconsistency unless compelled to
adopt it by plain and unambiguous
language."
In Jolly George Varghese vs. Bank of Cochin AIR 1980 SC 470, Krishna Iyer, J. posed the following question:
"From the perspective of
international law the question
posed is whether it is right to
enforce a contractual liability by
imprisoning a debtor in the teeth
of Article 11 of the International
Covenant on Civil and Political
Rights. The Article reads:
No one shall be imprisoned merely
on the ground of inability to
fulfil a contractual obligation."
The learned Judge interpreted Section 51 of the Code of Civil Procedure consistently with Article 11 of the International Covenant.
Article 17 of the International Covenant - quoted above - does not go contrary to any part of our Municipal law. Article 21 of the Constitution has, therefore, been interpreted in conformity with the international law.
Learned counsel assisting us in this case have not seriously challenged the constitutional vires of Section 5(2) of the Act. In this respect it would be useful to refer to the observations of this Court in Hukam Chand Shyam Lal vs. Union of India & Ors. 1976 (2) SCC 128:
"Section 5(1) if properly
construed,does not confer unguided
and unbridled power on the Central
Government/State
Government/specially authorised
officer to take possession of any
telegraph. Firstly, the occurrence
of a "public emergency" is the sine
qua non for the exercise of power
under this section. As a
preliminary step to the exercise of
further jurisdiction under this
section the Government or the
authority concerned must record its
satisfaction as to the existence of
such an emergency. which the
existence of the emergency which is
a pre-requisite for the exercise of
power under this section must be a
’public emergency’ and not any
other kind of emergency. the
expression ’public emergency’ has
not been defined in the statute,
but contours broadly delineating
its scope and features are
discernible from the section which
has to be read as a whole. in sub-
section (1) the phrase ’occurrence
of any public emergency’ is
connected with and is immediately
followed by the phrase "or in the
interests of the public safety".
These two phrases appear to take
colour from each other. in the
first part of sub-section (2) those
tow phrases again occur in
association with each other, and
the context further clarifies with
amplification that a ’public
emergency’ within the contemplation
of this section is one which raises
problems concerning the interest of
the public safety, the sovereignty
and intergrity of India, the
security of the State, friendly
relations with foreign states or
public order or the prevention of
incitement to the commission of an
offence. It is in the context of
these matters that the appropriate
authority has to form an opinion
with regard to the occurrence of a
’public emergency’ with a view to
taking further action under this
section. Economic emergency is not
one of those matters expressly
mentioned in the statute. Mere
’economic emergency’- as the High
Court calls it - may not
necessarily amount to a ’public
emergency’ and justify action under
this action unless it raises
problems relating to the matters
indicated in the section."
As mentioned above, the primary contention raised by the learned counsel is to lay-down necessary safeguards to rule-out the arbitrary exercise of power under the Act.
Section 5(2) of the Act permits the interception of messages in accordance with the provisions of the said Section. "Occurrence of any public emergency" or "in the interest of public safety" are the sine qua non for the application of the provisions of Section 5(2) of the Act. 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 Public emergency would mean the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action. The expression "public safety" means the state or condition of freedom from danger or risk for the people at large, When either of these two conditions are not in existence, the Central Government or a State Government or the authorised officer cannot resort to telephone tapping even though there is satisfaction that it is necessary or expedient so to do in the interests of it sovereignty and integrity of India etc. In other words, even if the Central Government is satisfied that it is necessary or expedient so to do in the interest of the sovereignty and integrity of India or the security of the State or friendly relations with sovereign States or in public order or for preventing incitement to the commission of an offence, it cannot intercept the message, or resort to telephone tapping unless a public emergency has occurred or the interest of public safety or the existence of the interest of public safety requires. 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.
The first step under Section 5(2) of the Act, therefore, is the occurrence of any public emergency or the existence of a Public-safety interest. Thereafter the competent authority under Section 5(2) C the Act is empowered to pass at order of interception after recording its satisfaction that it is necessary or expedient so to do 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. When any of the five situations mentioned above to the satisfaction of the competent authority require then the said authority may pass the order for interception of messages by recording reasons in writing for doing so.
The above analysis of Section 5(2) of the Act show that so far the power to intercept messages/conversations is concerned the Section clearly lays-down the situations/conditions under which it can be exercised. But the substantive law as laid down in Section 5(2) of the Act must have procedural backing so that the exercise of power is fair and reasonably. The said procedure itself must be just, fair and reasonable. It has been settled by this Court in Maneka Gandhi vs. Union of India (1978) 2 SCR 621, that "procedure which deals with the modalities of regulating, restricting or even rejection; a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself". Thus, understood, "procedure" must rule out anything arbitrary, freakish or bizarre. A valuable constitutional right can be canalised only by canalised processes".
We are of the view that there is considerable force in the contention of Mr. Rajinder Sachar, Mr. Kapil Sibal and Dr. Rajiv Dhawan that no procedure has been prescribed for the exercise of the power under Section 5(2) of the Act. It is not disputed that no rules have been framed under Section 7(2)(b) of the Act for providing the precautions to be taken for preventing the improper interception or disclosure of messages, In the absence of just and fair procedure for regulating the exercise of power under Section 5(2) of the Act, it is not possible to safeguard the rights of the citizens guaranteed under Articles l9(1)(a) and 21 of the Constitution of India. The CBI investigation has revealed several lapses in the execution of the orders passed under Section 5(2) of the Act, Paras 21 and 22 of the report have already been quoted in the earlier part of this judgment.
The Second Press Commission in paras 164, 165 and 166 of its report has commented on the "tapping of telephones" as under:
"Tapping of Telephones
164. It is felt in some quarters,
not without reason, that not
infrequently the Press in general
and its editorial echelons in
particular have to suffer tapping
of telephone.
165. Tapping of telephones is a
serious invasion of privacy. is a
variety of technological
eavesdropping, Conversation on the
telephone are often of an intimate
and confidential character. The
relevant statue, i.e., Indian
Telegraph Act, 1885, a piece of
ancient legislation, does not
concern itself with tapping.
Tapping cannot the regarded as a
tort because the law as it stands
today does not know of any general
right to privacy.
166. This is a hardly satisfactory
situation. There are instances
where appprehensions of disclosure
of sources of information as well
as the character of information may
result in constraints on freedom of
information and consequential
drying up of its source. We,
therefore, recommend that
telephones may not be tapped except
in the interest of national
security public order of
investigation. of crime and similar
objectives, under orders made in
writing by the Minister concerned,
or an officer of rank to whom the
power in that behalf is delegated.
The order should disclose reasons.
An order for tapping of telephones
should expire after three months in
from the date of the order.
Moreover within a period, of six
weeks the order should come up for
review before an Board constituted
on the lines prescribed in statues
providing for preventive detention.
It should be for the Board to
decide whether tapping should
continue any longer. The decision
of the Board should be binding on
the Government. It may be added
that the Minister or his delegates
will be competent to issue a fresh
order for tapping of the telephone
if circumstances call for it. The
Telegraph Act should contain a
clause to give effect to this
recommendation."
While dealing with Section 5(2) of the Act, the Second Press Commission gave following suggestions regarding "public emergency" and "interest of public safety":
"160. It may be noticed that the
public emergency mentioned in the
sub-section is not an objective
fact. Some public functionary must
determine its existence and it is
on the basis of the existence of a
public emergency that an authorised
official should exercise the power
of withholding transmission of
telegrams. We think that the
appropriate government should
declare the existence of the public
emergency by a notification
warranting the exercise of this
power and it is only after the
issue of such a notification that
the power of withholding
telegraphic messages should be
exercise by the delegated
authority. When such a
notification is issued, the
principal officer of the telegraph
office can be required to submit to
be the District Magistrate, whom we
consider to be the proper person to
be the delegate for exercising this
power, such telegrams brought for
transmission which are likely to be
prejudicial to the interest sought
to be protected by the Sub-Section.
Thereupon the District Magistrate
should pass an order in writing
withholding or allowing the
transmission of the telegram. We
are suggesting the safeguard of a
prior notification declaring the
existence of a public emergency
because the power of interception
is drastic power and we are loath
to leave the determination of
existence of a public emergency in
the hands of a delegate".
"We are of the view that whenever
the power is exercised in the
interest of public safety. it
should, as far as possible, be
exercised bag the concerned
Minister of the appropriate
government for one month at a time
extendible by Government if the
emergency continues. However in
exceptional circumstances the power
can be delegated to the District
Magistrate.
163 We also think that as soon as
order is passed by the District
Magistrate withholding the
transmission of a telegraphic
Message, it should be communicated
to the Central or State Governments
as the case may be, and also to the
sender and the addressee of the
telegram. The text of the order
should be placed on the table of
the respective State legislatures
after three months. We recommend
that, as suggested by the Press
Council of India in its annual
report covering 1969, the officer
in charge of a telegraph office
should maintain a register giving
particulars of the time of receipt,
the sender and address of every
telegram which he refers to the
district Magistrate with
recommendation of its withholding.
Similarly, the District Magistrate
should maintain a register of the
time receipt, content and addressee
of each telegram and record his
decision thereon together with the
time of the decision. Data of this
nature will help courts, if called
upon, to determine the presence or
absence of a mala fide in the
withholding of telegrams".
According to Mr. Sachar the only way to safeguard the right of privacy of an individual is that there should be prior judicial scrutiny before any order for telephonetapping is passed under Section 5(2) of the Act. He states that such judicial scrutiny may be exparte. Mr. Sachar contended that the judicial scrutiny alone would take away the apprehension of arbitrariness or unreasonableness of the action. Mr. Kapil Sibal, on the other hand has suggested various other safeguards short of prior judicial scrutiny - based on the law on the subject in England as enacted by the Interception of the Communications Act, 1985.
We agree with Mr. Sibal that in the absence of any provision in the statute, it is not possible to provide for prior judicial scrutiny as a procedural safeguard. It is for the Central Government to make rules under Section 7 of the Act. Rule 7(2)(b) specifically provides that the Central Government may make rules laying down the precautions to be taken for preventing the improper interception or disclosure of messages. The Act was enacted in the year 1885. The power to make rules under Section 7 of the Act has been there for over a century but the Central Government has not thought it proper to frame the necessary rules despite severe criticism of the manner in which the power under Section 5(2) has been exercised. It is entirely for the Central Government to make rules on the subject but till the time it is done the right to privacy of an individual has to be safeguarded. In order to rule-out arbitrariness in the exercise of power under Section 5(2) of the Act and till the time the Central Government lays down just, fair and reasonable procedure under Section 7(2)(b) of the Act, it is necessary to lay down procedural safeguards for the exercise of power under Section 5(9) of the Act so that the right to privacy of a person is protected.
We, therefore, order and direct as under: 1. An order for telephone-tapping in terms of Section 5(2) of the Act shall not be issued except by the Home Secretary, Government of India (Central Government) and Home Secretaries of the State Governments. In an urgent case the power may be delegated to an officer of the Home Department the Government of India and the State Governments not below the rank of Joint Secretary. Copy of the order shall be sent to the Review Committee concerned with one week of the passing of the order-. 2. 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. 3. The matters to be taken into account in considering whether an order is necessary under Section list of the Act shall include whether the information which is considered necessary to acquire could reasonably be acquired by other means. 4. The interception required under Section 5(2) of the Act shall be the interception of such communications as are sent to or from one or more addresses specified in the order belong an address or addresses likely to be used for the transmission of communications to or from, from one particular person specified or described in the order or one particular set of premises described in the order. 5. The order under Section 5(9) of the Act shall, unless renewed, case to have effect at the end of the period of two month from the date of issue. The authority which issued the order may, at any time before the end of two month period renew the order if it by the State Government.
(a) The Committee shall on its own, within two months of the passing of the order by the authority concerned, investigate whether there is or has been a relevant order under Section 5(2) of the Act. Where there is or has been an order whether there has been any contravention of the provisions of Section 5(2) of the Act.
(b) If on an investigation the Committee concludes that there has been a contravention of the provisions of Section 5(2) of the Act, it shall set aside the order under scrutiny of the Committee. It shall further direct the destruction of the copies of the intercepted material.
(c) If on investigation, the Committee comes to the conclusion that there has been no contravention of the provisions of Section considers that it is necessary to continue the order in terms of Section 5(2) of the Act. The total period for the operation of the order shall not exceed six months. 6. The authority which issued the order shall maintain the following records:
(a) the intercepted communications,
(b) the extent to which the
material is disclosed,
(c) the number of persons and their
identity to whom any of the
material is disclosed.
(d) the extent to which the
material is copied and
(e) the number of copies made of
any of the material. 7. The use of the intercepted material shall be limited to the minimum that is necessary in terms of Section 5(2) of the Act. 8. Each copy made of any of the intercepted material shall be destroyed as soon as its retention is no longer necessary in terms of Section 5(2) of the Act. 9. There shall be a Review Committee consisting of Cabinet Secretary, the Law Secretary and the Secretary, Telecommunication at the level of the Central Government. The Review Committee at the State level shall consist of Chief Secretary, Law Secretary and another member, other than the Home Secretary, appointed 5(2) of the Act, it shall record the finding to that effect.
The writ petition is disposed of. No costs.