Until the passage of this Section in the ITAA, phone tapping was governed by Clause 5(2) of the Indian Telegraph Act of 1885, which said that “On the occurrence of any public emergency, or in the interest of the public safety, the 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 an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or 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 detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order”. Other sections of the act mention that the government should formulate “precautions to be taken for preventing the improper interception or disclosure of messages”. There have been many attempts, rather many requests, to formulate rules to govern the operation of Clause 5(2). But ever since 1885,
no government has formulated any such precautions, maybe for obvious reasons to retain the spying powers for almost a century.
A writ petition was filed in the Supreme Court in 1991 by the People’s Union for Civil Liberties, challenging the constitutional validity of this Clause 5(2). The petition argued that it infringed the constitutional right to freedom of speech and expression and to life and personal liberty. In December 1996, the Supreme Court delivered its judgment, pointing out that “unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers” given them under 5(2). They went on to define them thus: a public emergency was the “prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action”, and public safety “means the state or condition of freedom from danger or risk for the people at large”. Without those two, however “necessary or expedient”, it could not do so. Procedures for keeping such records and the layer of authorities etc were also stipulated.