IN THE SUPREME COURT OF INDIA
AIR 1997 SC 568
People's Union for Civil Liberties
Union of India & ors.
Date of Judgement
18th December, 1996
Hon’ble Justice Kuldip Singh, J.; S.S. Ahmad, J.
Telephone-Tapping is an invasion of one of the most prized possessions of an individual i.e. privacy. Due to the increased development of highly sophisticated technology, the right to hold a telephonic conversation, in the privacy of one’s home or office without interference, is prone to abuse. The citizen’s right to privacy has to be protected from being abused by the authorities. Therefore, under Article 32 of the Constitution, this writ petition was filed claiming the abuse of power that the State exercises upon an individual and how police authorities breach the fundamental rights guaranteed under the Constitution time and time again.
Facts of the case:
People’s Union for Civil Liberties filed a PIL before the Supreme Court, highlighting the incidents of telephone tapping in the recent past. The petitioner challenged the constitutional validity of Section 5(2) of the Indian Telegraph Act, 1885. Alternatively, it is contended that the said provisions should be suitably read-down so as to include procedural safeguards to rule out arbitrariness and to prevent the indiscriminate telephone-tapping. The writ petition was filed in reference to the report on “Tapping of politicians phones” by the Central Bureau of Investigation (CBI).
Section 5(2) of the Indian Telegraph Act, 1885 is the matter of contention in the current case which provides State with the authority to tap the telephones of individuals under situations of public emergency or other conditions as laid down in the legislation.
- Whether interception of telephone calls amount to a breach of Article 19(1 )(a) and Article 21 of the Constitution? Also, whether such restriction is covered under Article 19(2) of the Constitution?
- Whether Section 5(2) of the Indian Telegraph Act, 1885 is constitutional both in substantive and procedural aspects?
The Petitioner vehemently contended that the right to privacy is a fundamental right guaranteed under Article 19(1) and Article 21 of the Constitution of India. According to the Petitioner, to save Section 5(2) of the Act from 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- is the only safeguard, which can eliminate the element of arbitrariness or unreasonableness. It was also contended that not only the substantive law but also the procedure provided therein has to be just, fair and reasonable.
The Respondent at the outset stated that in the interest of the security and sovereignty of India and to deal with any other emergency for the protection of national interest, messages may indeed be intercepted. Accordingly, the core question for determination is whether there are sufficient procedural safeguards to rule out the arbitrary exercise of power under the Act. It was contended that Section 5(2) of the Act clearly lays down the conditions/situations which are the sine qua non for the exercise of the power but the manner of exercise of the said power has not been provided. Therefore, 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
The Court ordered as follows –
- Only the Home Secretary, Government of India and the State Governments can issue an order for telephone-tapping as per S. 5(2) of the Act.
- The order shall require the person to whom it is addressed to intercept in the course of their transmission by means of 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.
- It is important to take into account whether the information which is considered necessary to acquire could have been reasonably acquired by other means so as to judge the necessity of such an order.
- 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, being 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 specified or described in the order.
- The order under Section 5(2) of the Act shall unless renewed before the end of two month period if its continuation is considered necessary, cease to have effect at the end of the period of two months from the date of issue. The total period for the operation of the order shall not exceed six months.
- The use of the intercepted material shall be limited to the minimum that is necessary for terms of Section 5(2) of the Act, etc.
The Court has interpreted the term ‘life’ as mentioned under Article 21 of the Constitution and has referred to Munn v. Illinois where Justice Field pointed out that life 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.
While referring to another landmark on the concept of privacy and individual liberty of individuals as guaranteed under the Constitution, the Court observed that the security of one’s privacy against arbitrary intrusion by the police is basic to a free society. It is implicit in ‘the concept of ordered liberty’ 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 the 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.
Analyzing Section 5(2) of the Act, it can be understood that certain situations/conditions are laid down when the power to intercept messages/conversations can be exercised validly. However, for this power to be exercised in a fair and reasonable manner, procedural backing is necessary. The said procedure itself must be just, fair and reasonable. It has been settled by the Court in Maneka Gandhi v. Union of India, that “procedure which deals with the modalities of regulating, restricting or even rejecting 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 canalized only by civilized processes“.
The Court further laid down clearly that the right to privacy is a part of the right to “life” and “personal liberty” guaranteed under Article 21 of the Constitution. Article 21 is attracted in every situation concerning the right to privacy and this right cannot be curtailed “except according to the procedure established by law”.
- The right to privacy is a part and parcel of the right to life and personal liberty which entails within it the right to live with human dignity.
- The act of telephone tapping is an invasion of the fundamentally granted right to privacy to each citizen and hence constitutes a violation of the Constitution.
Edited by Parul Soni
Approved & Published – Sakshi Raje
 Munn v. Illinois (1877) 94 U.S. 113, 142.
 Kharak Singh v. State of U.P. and Ors. , 1963 AIR 1295.
Maneka Gandhi v. Union of India, 1978 AIR 597.