In the recent judgement of P. Kishore v. The Secretary to Government and Others, delivered on 2nd July 2025, The Madras High Court held that an individual's phone cannot be tapped in a secret operation to detect the commission of a crime, and the same would violate the individual's fundamental right to privacy. Justice Anand Venkatesh noted that phone tapping would be justified only on...
In the recent judgement of P. Kishore v. The Secretary to Government and Others, delivered on 2nd July 2025, The Madras High Court held that an individual's phone cannot be tapped in a secret operation to detect the commission of a crime, and the same would violate the individual's fundamental right to privacy. Justice Anand Venkatesh noted that phone tapping would be justified only on two conditions: the occurrence of a public emergency or in the interest of public safety. The court also highlighted that these situations should be apparent to a reasonable man. In this judgement the court has taken in view Section 5 (2) of the Indian Telegraph Act, 1885 and interpreted it in a way to give the accused the benefit of the doubt. However, the law on interception of communication and telephone tapping remains obfuscating, on one hand, unchecked communication may compromise state security; on the other, interception risks authoritarian overreach. The Indian Telegraph Act, 1885, gave the Government wide powers under section 5(2) to intercept messages during public emergency or in the interest of public safety. However, these terms have been given wide connotations and have contributed in curtailment of right to privacy of individuals over the past decades.
In People's Union for Civil Liberties v. Union of India (1996), the Supreme Court did not strike down Section 5(2), but it injected safeguards into it, recognising interception as a “serious invasion of privacy” under Article 21. The Court mandated nine requirements: written authorisation by the Union or State Home Secretary, limited duration of orders, targeted interception instead of blanket surveillance, periodic review by a committee, and eventual destruction of irrelevant material. These became Rule 419A of the Telegraph Rules, 1951. For the first time, India had something resembling a procedural framework, though one still firmly within executive control.
Two decades later, in Justice K.S. Puttaswamy v. Union of India (2017), a nine-judge bench decided that the right to privacy is a fundamental right enshrined under Article 21 of the Constitution. This judgment reframed surveillance powers under by affirming that any intrusion of such nature must satisfy the tests of legality, necessity, and proportionality. Suddenly, interception could not be justified simply by citing statutory powers and rules that were previously stated, rather it had to survive constitutional scrutiny. Although the principle seemed clear, the actual implementation was unclear. The government continued to issue interception orders through executive authorisation, with no requirement for judicial warrants and very little transparency about review mechanisms.
The New Act and Persistent Gaps
The Telecommunications Act, 2023 was introduced due to the inconsistencies in the previous act and also due to the outdated and archaic nature of the old act in this ever- changing world. It seemed like a solid move that aligned India's telecom regulation with the modernisation of technology. However, interception provisions sparked immediate debate. Unlike Section 5(2) of The Indian Telegraph Act, 1885 which was limited to “public emergency” and “public safety,” the new Act lists broader grounds: sovereignty, integrity, security of the state, friendly relations with foreign states, public order, and prevention of offences. These grounds echo the familiar restrictions in Article 19(2), but the shift is significant. “Public emergency” had always been an objective condition, something that could be tested; “sovereignty” or “public order” are far more elastic and easier to invoke, which confers wide discretionary powers to order such interception. In effect, the threshold for interception has been lowered, and this could mean that there might be privacy concerns in future. The Telecommunications (Interception) Rules, 2024 did bring in some structure. They specify that only designated officials may intercept communications, and that authorisation of such interpretation can only be ordered by senior officials like the Home Secretary. However, there was debate about the rules and their nature. They do not prescribe clear time-limits for retaining intercepted data, they said only a little about destruction protocols, and they did not provide any mechanism for independent oversight. The review committees remain executive in nature, composed of senior bureaucrats, which means that the state would review its own decisions.
Indian courts, meanwhile, have been equivocal in their approach about admissibility of intercepted material. In R.M. Malkani v. State of Maharashtra (1973), the Supreme Court admitted a secretly recorded telephone conversation as evidence, stressing that illegality of procurement does not by itself exclude evidence if it is true and relevant for the case. The principles stated in the above-mentioned judgement have been invoked repeatedly, allowing such tapes into criminal trials even where procedures under Section 5(2) of The Indian Telegraph Act, 1885 or Rule 419A of the Telegraph Rules, 1951 were not strictly followed. Furthermore, in a rather recent judgement of July 2025, Vibhor Garg v. Neha ,the court has admitted the intercepted conversations of spouses on their phone to decide a matrimonial dispute. 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.
What India Still Lacks
The most glaring gap in India's regime regarding the interception of communication is that of the absence of independent oversight. In the United Kingdom, there exists an Investigatory Powers Tribunal which provides a dedicated forum for individuals who believe that their communications have been unlawfully monitored by the government or private citizens. Furthermore, surveillance orders are subject to judicial scrutiny through the Foreign Intelligence Surveillance Court in the United States.
India, by contrast, provides no such remedy. If a citizen suspects illegal tapping, the only recourse is to move to a High Court or the Supreme Court through a writ petition. This is impractical for ordinary individuals, especially when interception laws are not clearly implemented as stated under the provisions by design. Worse, the lack of ex post facto remedies means the State does not face any consequence for unlawful interception which leads to the state owing no responsibility for its actions. Even where procedures are breached, courts often admit the material into evidence, relying on the relevance test rather than exclusionary rules.
Another missing piece is the absence of proportionality test. While Puttaswamy lays down proportionality as a constitutional standard, there is little evidence of this being applied by authorising officers or review committees. The orders are clandestine, not disclosed even in court proceedings, and therefore they are able to escape public or judicial scrutiny.
The Road Ahead
If telephone tapping is to remain constitutionally valid, reforms are unavoidable. The first and most obvious reform is to introduce judicial oversight at the authorisation stage. Even if urgent interim orders are issued by the executive, they must be ratified within a swift time frame not exceeding 48 hours by a judge. This is the model which is prevalent in several democracies, and it provides an independent check before the State intrudes into private life of citizens. Further, technological neutrality must be built into the law, today's communication mediums are not limited to telephones; interception may involve WhatsApp calls, encrypted emails, or other cloud-based platforms. A law that only speaks of “telecommunications” risks being outpaced by technology. Therefore, surveillance regulation must focus on the act of interception itself, regardless of the medium.
The debate around telephone tapping in India has always been about balance, between the State's duty to protect and the citizen's right to be left alone. The Telegraph Act of 1885, created the first interception framework, but left it entirely in the State's hands. The PUCL Judgement created a thin procedural barrier regarding privacy, whereas, Puttaswamy Judgement affirmed the constitutionality of right to privacy. Yet, the Telecommunications Act, 2023, instead of strengthening the privacy side of the scale, risks tilting the balance back towards unchecked executive power by widening grounds and leaving the oversight on a weak footing.
The Indian State undeniably needs interception powers in an era of cross-border terrorism, organised crime, and cyber threats threatening all over the country. But those powers must be exercised within the constitutional framework, keeping in mind the fundamental rights of the citizens. Unless judicial oversight, independent remedies, and robust exclusionary rules are introduced, interception will remain a grey zone, it will remain a space where rights are silently eroded. The danger with silent erosion is that by the time we notice the loss, it may already be too late to rectify.
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