Telephone Tapping Constitutes Violation Of Right To Privacy: Madras High Court Quashes Centre’s Order

The Madras High Court has held that telephone tapping constitutes a violation of the Right to Privacy unless justified by a procedure established by law.

The Court held thus in a Writ Petition preferred against the Order of the Secretary to Government of India, Ministry of Home Affairs, authorizing tapping of the mobile phone by the Director, CBI (Central Bureau of Investigation).

A Single Bench of Justice N. Anand Venkatesh observed, “Telephone tapping constitutes a violation of the right to privacy unless justified by a procedure established by law. Section 5(2) of the Act authorizes interception of telephones on the occurrence of a public emergency or in the interests of public safety. Both these contingencies are not secretive conditions or situations. Either of the situations would be apparent to a reasonable person.”

The Bench reiterated that the right to privacy is now an integral part of the right to life and personal liberty guaranteed under Article 21 of the Constitution of India.

Advocate Sharath Chandran appeared on behalf of the Petitioner while Additional Solicitor General (ASG) AR.L. Sundaresan appeared on behalf of the Respondents.

Brief Facts

The Petitioner was the Managing Director of a Chennai based education company. The Respondent passed an Order under Section 5(2) of Telegraph Act, 1885 and Rule 419-A of the Telegraph Rules, 1951, authorizing the interception of messages from the Petitioner’s phone. The said order alleged that interception should be made and disclosed to the CBI for reasons of public safety and in the interest of public order and for preventing incitement to the commission of an offence. In the meantime, the Additional Superintendent of Police registered an FIR against IRS, Additional Commissioner of Income Tax (A1), the Petitioner (A2), and another person (A3) for offences under Section 120-B of the Indian Penal Code, 1860 (IPC) and Section 7 of the Prevention of Corruption Act, 1988 (PC Act).

The FIR alleged that A1 had conducted a search in the business premises of the Petitioner’s company, which was found to have concealed certain taxable income. A1 was alleged to have demanded a bribe of Rs. 50 lakhs from A2 to help the said company evade taxes. Pursuantly, A2 was to handover the said sum of money to A1 later and A3, who was a friend of A1, was to take the money thereafter to an unknown place. Based on this information, the CBI officials intercepted and apprehended A1 and A3. The Special Court granted an Interim Order of stay, which continued to be extended from time to time. Later, the Petitioner was granted liberty to challenge the said order before the appropriate forum. Hence, the case was before the High Court.

Reasoning

The High Court in view of the above facts, noted, “The very fact that the intercepted material was not even placed before the Review Committee for its scrutiny would show that the respondents have clearly acted in brazen violation of the law. In view of the above discussions and as was done in the decision of the Hon'ble Andhra Pradesh High Court in K.L.D.Nagasree, it would suffice for this Court to declare that the intercepted material collected pursuant to the impugned order in violation of Section 5(2) of the Act and Rule 419-A(17) of the Rules shall not be used for any purposes whatsoever.”

The Court added that it is only when the two situations exist that the Authority may pass an order directing interception of messages after recording its satisfaction that it is necessary or expedient so to do in the interest of (1) the sovereignty and integrity of India, (2) the security of the State, (3) friendly relations with foreign States, (4) public order or (5) for preventing incitement to the commission of an offence.

“In the instant case, the impugned order dated 12.8.2011 does not fall either within the rubric of “public emergency” or “in the interests of public safety” as explained by the Hon'ble Supreme Court in the case of People's Union for Civil Liberties. The facts disclose that it was a covert operation/secretive situation for detection of crime, which would not be apparent to any reasonable person”, it further said.

The Court remarked that as the law presently stands, a situation of this nature does not fall within the four corners of Section 5(2) of the Act as expounded by the Supreme Court.

“The respondents have also contravened Rule 419-A(17) of the Rules by failing to place the intercepted material before the Review Committee within the stipulated time to examine as to whether the interception was made in compliance with Section 5(2) of the Act”, it also said.

The Court was of the view that the impugned Order must necessarily be set aside as unconstitutional and one without jurisdiction.

“Besides violating Article 21, it is also ultra vires Section 5(2) of the Act besides being in violation of the mandatory provisions of Rule 419-A of the Rules. … It follows that the intercepted conversations collected pursuant to the impugned order dated 12.8.2011 in violation of Section 5(2) of the Act and Rule 419-A(17) of the Rules shall not be used for any purposes whatsoever”, it concluded.

The Court clarified that the direction shall have no bearing on the other material that have been collected by the CBI subsequent to and independent of the intercepted call records, which shall be considered by the Trial Court on its own merits without being influenced by any of the observations made in the Order.

Accordingly, the High Court allowed the Writ Petition and quashed the impugned Order.

Cause Title- P. Kishore v. The Secretary to Government of India & Ors. (Neutral Citation: 2025:MHC:1510)

Appearance:

Petitioner: Advocates Sharath Chandran and Rajagopal Vasudevan.

Respondents: ASG AR.L. Sundaresan, SPCs T.V. Krishnamachari, and K. Srinivasan.

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