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The Legality and Oversight of Telephone Tapping Orders: A Landmark Judicial Decision, PUCL VS UOI,1996

Brief Facts
The People's Union of Civil Liberties, the petitioner, filed a public interest lawsuit under Article 32 on the recent phone tapping occurrences. Section 5(2) of the Indian Telegraph Act of 1885 (hereinafter referred to as Act 1885) has been challenged by the petitioners as unconstitutional, based on the report on "Tapping of Politicians Phones" by the Central Bureau of Investigation (CBI).

Alternatively, it is argued that the aforementioned provisions should be interpreted in a manner that incorporates procedural safeguards to eliminate any potential for arbitrary use and to prevent unlawful phone tapping.

The petitioner has referred to the report which claims that the investigation has discovered numerous deficiencies by Mahanagar Telephone Nigam Limited (MTNL) such as the fact that various phone interceptions were done outside the authorised areas in good faith in response to requests made which was made orally by the appropriate authority. The reason for keeping a phone number under watch has also not been adequately followed, and the government has not granted permission to keep phones under surveillance for more than 180 days. Additionally, the frequency of record maintenance is inconsistent.

The petitioner has contested this section of Act 1885, asserting that it infringed upon the person's Right to Privacy.

People's Union For Civil Liberties (Pucl) v/s Union Of India (Uoi) And Anr.[1]
Air 1997 Sc 568 - Supreme Court Of India
Petitioner: People's Union For Civil Liberties (Pucl)
Respondent: The Union Of India And Anr.
Date Of Judgement: 18th December, 1996

  1. Is there a requirement to amend Section 5(2) of the Act 1885 to include procedural protections to eliminate Arbitrariness and Curb indiscriminate Phone Tapping?
  2. Whether Section 5(2) of the Act 1885 was used to violate the Right to Privacy under Article 21.

Rules Of Law
Section 5 (2) of the Act 1885:[2]
On the occurrence of any public emergency, or in the interest of public safety, the central government or a state government or any officer specially authorised on this behalf, can intercept messages if satisfied 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.
  5. For preventing incitement to the commission of an offence.

Section 7 (2) (b) of the Act 1885:[3]
"Power to make rules for the conduct of telegraphs:
(2) Rules under this section may provide for all or any of the following, among other matters that is to say:

(b) The precautions to be taken for preventing the improper interception or disclosure of message".

Article 19 (1) (a) of the Indian Constitution:[4]
  1. All citizens shall have the right:
    • to freedom of speech and expression
    • Article 21 of the Indian Constitution:[5]
      Protection of life and personal liberty- No person shall be deprived of his life or personal liberty except according to a procedure established by law
    • Article 17 of the International Covenant on Civil and Political Rights, 1966:[6]
      1. No one shall be subject to arbitrary or unlawful interference with his privacy, family, human or correspondence, nor to lawful attacks on his honour.
      2. Everyone has the right to the protection of law against such interference or attacks.

Contention Of Parties
Arguments of the Appellant:
The counsel for the Appellant contended that the right to privacy is a fundamental right under Article 21 and to preserve section 5 (2) of the Act 1885 from being ruled unconstitutional it is necessary to provide adequate machinery to protect the right to privacy and Prior judicial scrutiny is sole safeguards which can eliminate the element of arbitrary decisions or unreasonableness and also there should be just, equitable and reasonable procedurals laws.

Arguments of the Respondent:
The counsel for the Respondent argues that the allegation of misusing the power of tapping the telephone by the central or state government or any authorised officer is not correct. because tapping a phone could only be done in specific situations involving public emergencies and only with permission from the federal or state governments in accordance with the act's specified procedures. Additionally, they argued against overturning section 5(2) of the Act 1885 because doing so would compromise state security and the public interest.

The court laid down the following judgement:
  1. An order for telephone tapping under sec 5 of the Act can be issued by the Home Secretary, Government of India, and home secretaries of state government.
  2. The order will compel the individual it is ordered to intercept certain communication as they traverse a public telecommunication network. It may also demand to reveal the intercepted content to specific individuals in such manners described in the order.
  3. It should be assessed that the data obtained through interception was necessary and was obtained through legal processes and reasonable measures.
  4. The order under the act ceased to have effect at the end of the period of two months from the date of issue. The authority can renew this order before the end of two months if it is considered to be necessary, and the total period for the operation of the order is six months.
  5. Each copy of intercepted material shall be destroyed as soon as it is no longer necessary under sec 5 of Act.
  6. The authority issuing the order must keep records of intercepted communications, the amount of material disclosed, the number of copies made, and the names and numbers of individuals to whom any material is disclosed.
  7. A review committee shall be formed at the state level and central level to keep a check on whether the order is in compliance with the law or not.

Ratio Decidendi
The court Referred back to Kharak Singh's case, which interpreted the right to privacy as a component of the right to life under Article 21, In its ruling, the court stated that a free society depends on individuals' right to privacy against arbitrary interference. Analysis of section 5(2) of the Act reveals that the authority to intercept messages is subject to specific requirements that must be met in order for it to be lawfully used.

However, there should be strong procedural backing and precautions in place to avoid improper message disclosure or interception in order to use this authority in a lawful manner. As per the court's ruling, whenever there is a violation of an individual's right to privacy, Article 21 comes into play, unless the right is restricted in accordance with legally enforced procedures.

The court acknowledges that it is impossible to allow for prior judicial review as procedural protection because there is due process given under section 7 of the Act of 1885, which says that the central government has the duty to establish regulations for safeguards against unauthorised interception.

Obiter Dicta
Telephone - Tapping is a grave violation of an individual's privacy. As communication technology becomes more advanced, people's ability to sell phone calls in private, without hindrance is becoming more vulnerable to misuse. While it is true that all governments, regardless of whether they are democratic or not, carry out some level of Subrosa operations as part of their intelligence outfit, citizens' right to privacy must also be safeguarded against abuse by the ruling authorities.

The specific facts of each case will determine whether or not the right to privacy can be asserted or has been violated. In order for the use of authority to be just and reasonable, the substantive legislation outlined in section 5(2) of the act must have procedural backing. International law now encompasses more than just state-to-state relations regulation. The range keeps growing. Aside from human rights, today's social concerns including health, education, and the economy are also covered by international regulations.

Precedents Followed In The Case
  • Wolf v. Colorado (1949)[7]: "The security of one's privacy against arbitrary intrusion by the police is basic to a free society. It is also considered that invasion was against the very essence of a scheme of ordered liberty".
  • Munn v. Illinois (1877)[8]: The judges interpreted in this case that the US Constitution's 5th and 14th Amendments define "life" as "the right to the preservation of one's animal existence, as well as the right to possess one's arms, legs, and other organs. These goals are mentioned to highlight the fundamental idea of the constitution, "Personal reasonable manner," and to accomplish those goals.
  • Kharak Singh v. State of UP[9] & Govind v. State of Madhya Pradesh[10] & R. Rajgopal v. State of Tamil Nadu[11]: Through the mentioned above cases the final conclusion was brought down that the freedom to life and liberty that Article 21 of our constitution guarantees to its citizens includes an implicit right to privacy. it is a "Right to be let alone".
  • A.D.M Jabalpur v. S. Shukla[12]: In their minority opinion in this case, the court observed that in the event of a dispute between a municipal law and another body of international law, the courts are bound under a well-established construction rule to give effect to the municipal law.
  • Kesavandanda Bharathi v. State of Kerala[13]: The court was of the view that in light of the United Nations Charter and the solemn declaration that India has endorsed, this Court is required under Article 51 of the directive principles to interpret the wording of the Constitution, if not intractable. The Constitution is, after all, a municipal law.
  • Hukum Chand Shyam Lal v. Union of India & Ors.[14]: If correctly interpreted, section 5 (1) does not grant unrestricted and unrestrained authority to the specially authorized officer of the central or state government to seize any telegraph.
  • Maneka Gandhi v. Union of India (1978)[15]: The court said in this case that Procedures pertaining to the limitations, regulations, or even rejection of a basic right protected by Article 21 must be fair, well-thought-out, and carefully designed to uphold the substantive law itself rather than undermine it.

Present Status Of The Judgement
As per the Supreme Court of India's ruling, The Present Status for the People's Union for Civil Liberties v. The Union of India and Anr., 1996, case the verdict is deemed legitimate and has not been overturned. The PUCL judgment has had a significant impact on the law and practice of privacy in India.

It has been cited in various cases, for example, it was cited in the 2017 case of KS Puttaswamy v. UOI, in which the Supreme Court held that the right to privacy is a fundamental right enshrined in the Constitution.

The Supreme Court has struck down a number of government surveillance programs as being violative of the right to privacy, including the Aadhaar program and the Central Monitoring System. The Supreme Court has also held that the government cannot collect and retain personal data without the consent of the individual concerned.

  1. Pucl v. Union of India, AIR 1997 SC 568.
  2. Telegraph Act, 1885, 5(2).
  3. Telegraph Act, 1885, 7(2).
  4. The Constitution of India, 1950, Art. 19(1)(a).
  5. The Constitution of India, 1950, Art. 21.
  6. The International Covenant on Civil and Political Rights, 1966, Art. 17.
  7. Wolf v. Colorado (1949) 338 US.25.
  8. Munn v. Illinois (1877) 94 US. 113, 142.
  9. Kharak Singh v. State of UP, AIR 1963 SC 1295.
  10. Govind v. State of Madhya Pradesh, AIR 1975 SC 1378.
  11. R. Rajgopal alias R.R. Gopal and Anr. State of Tamil Nadu (1994), 6 SCC 632.
  12. A.D.M Jabalpur v. S. Shukla, AIR 1976 SC 1207.
  13. Kesavandanda Bharathi v. State of Kerala, (1973) 4 SCC 225.
  14. Hukum Chand Shyam Lal v. Union of India& ors. 1976, (2) SCC 128.
  15. Maneka Gandhi v. Union of India, 2 SCR 621.

Award Winning Article Is Written By: Mr.Parv Pitaliya
Awarded certificate of Excellence
Authentication No: OT366019509923-21-1023

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