An Individual's Phone Can't Be Tapped To Uncover Suspected Crime, Would Violate Right To Privacy: Madras High Court

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/ contingencies should be apparent to a reasonable man.

The court also added that orders allowing phone tapping should specify the necessity of the same in the interest of sovereignty, integrity, security of the state, friendly relations with foreign nations, public order, and for preventing incitement to the commission of an offence.

“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. As laid down in paragraph 28 of the decision of the Hon'ble Apex Court in People's Union for Civil Liberties, it is only when the above 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,” the court said.

The court was hearing a petition filed by P Kishore, Managing Director of a company challenging an order of the Central Government under Section 5(2) of the Telegraph Act and Rule 419-A of the Telegraph Rules 1951 authorising his phone tapping in connection with an alleged corruption case.

The order said that the interception was necessary to detect and probe corrupt activities, and the details were to be disclosed to the CBI for reasons of public safety and in the interest of public order and for preventing incitement to commit an offence.

Based on the above order, the CBI registered an FIR against Andasu Ravinder (Additional Commissioner of Income Tax), the petitioner, and one Uttam Bohra for offences under Section 120-B of the Indian Penal Code (IPC) and Section 7 of the Prevention of Corruption Act, 1988. It was alleged that the Additional Commissioner had searched the petitioner's business premises and found the concealed taxable income. It was alleged that the Additional Commissioner demanded bribe which was paid by the petitioner and which was later handed over to the third person by the Additional Commissioner.

The petitioner argued that phone tapping under Section 5(2) of the Indian Telegraph Act would be attracted only in the case of a public emergency or if it was done in the interest of justice. He added that covert surveillance, which was conducted in the present case, would not fall within the two situations contemplated under Section 5(2) of the Act. He also pointed out that the intercepted conversations were not placed before a reviewing committee, which was mandatory under Rule 419-A of the Rules, which was also mandated by the Supreme Court's decision in the case of People's Union for Civil Liberties. It was thus argued that since the order was passed without jurisdiction, it should be set aside.

The Centre, on the other hand, argued that Section 5(2) should be expanded to accommodate newer contingencies, like the present one, which involved corruption in high places, and which was involved risk to public safety. It was argued that restricting the concept of public safety to situations that were evident to a reasonable person would exclude detection of crime committed through secretive means. It was thus argued that there was an application of mind in the present case, and it was permissible for public safety under Section 5(2) of the Act.

The court noted that the Supreme Court, in the decision of People's Union for Civil Liberties and in KS Puttaswamy's case, had emphasised the right to privacy and thus, any restriction by the State on an individual's right to privacy should be as per procedure established by law. The court thus reiterated that telephone tapping would infringe Article 21 of the Constitution unless such infringement has the sanction of procedure established by law.

In the present case, the court noted that the operation did not fall within the situations/contingencies described under Section 5(2) of the Act but was in fact a covert surveillance operation and interception of conversation between accused persons.

The court also rejected the Centre's contention to expand the scope of Section 5(2) of the Act and said that it could not cross the Lakshman Rekha set out under Section 5(2) of the Act. The court added that it was a gatekeeper and could not become a gate maker whenever the executive required.

“This Court is unable to accept this submission since the boundaries for invasion of a fundamental right through the medium of enacted law is a function of the Legislature and not the Court. Section 5(2) of the Act has set out the Lakshman Rekha and the role of the Court is confined to seeing as to whether the threshold is not crossed. As sentinels on the qui vive, the Courts are gatekeepers of Fundamental Rights. Gate keepers cannot become gate makers to reposition the gates as and when the Executive requires without the intervention of the Legislature as pointed out by H.R.Khanna,J in the case of Godavari Sugar Mills Ltd. Vs. S.B.Kamble [reported in 1975 (1) SCC 696],” the court said.

The court also noted that in the present case, the authorities had not placed the intercepted material before the Review Committee and thus there was a violation of the Rules. The court also held that since the material was collected in violation of Section 5(2) of the Act and Rule 419-A(17 of the Rules, the material could not be used for any purpose.

Thus, the court allowed the plea and quashed Centre's order allowing phone tapping.

Counsel for Petitioner: Mr.Sharath Chandran for Mr.Rajagopal Vasudevan

Counsel for Respondents: Mr.AR.L.Sundaresan, ASG assisted by Mr.T.V.Krishnamachari, SPC and assisted by Mr.K.Srinivasan, SPC

Case Title: P Kishore v. The Secretary to Government and Others

Citation: 2025 LiveLaw (Mad) 224

Case No: Writ Petition No.143 of 2018