Chambers of Ishaan Garg
Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054
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The first step under Section 5(2) of the Act, therefore, is the occurrence of any public emergency of the existence of a public-safety interest. Thereafter the competent authority under Section 5(2) of the Act is empowered to pass an order of interception after recording its satisfaction that it is necessary or expedient so to do in the interest of (i) sovereignty and integrity of India, (ii) the security of the State, (iii) friendly relations with foreign States, (iv) public order or (v) for preventing incitement to the commission of an offence. When any of the five situations mentioned above to the satisfaction of the competent authority require then the said authority may pass the order for interception of messages by recording reasons in writing for doing so. {Para 9}
30. The above analysis of Section 5(2) of the Act shows that so far the power to intercept messages/conversations is concerned the Section clearly lays-down the situations/conditions under which it can be exercised. But the substantive law as laid down in Section 5(2) of the Act must have procedural backing so that the exercise of power is fair and reasonable. The said procedure itself must be just, fair and reasonable. It has been settled by this Court in Maneka Gandhi v. Union of India, that "procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself". Thus, understood, "procedure" must rule out anything arbitrary, freakish or bizarre. A valuable constitutional right can be canalised only by civilised processes".
6. The Hon'ble Supreme Court in PUCL (Supra) thus categorically held and directed that:-
I. Right to privacy would certainly include telephonic conversation in the privacy of one's house or office. Telephone tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.
II. "Occurrence of public emergency" or "in the interest of public safety" are the "sine qua non" for the application of the provisions of Section 5(2) of the 1885 Act, and without them, the authorities have no jurisdiction to exercise the powers under the said Section to take resort to telephone tapping even though there is satisfaction that it is necessary or expedient so to do in the interest of sovereignty and integrity of India etc.
III. The expression "public safety" means the State or Condition of freedom from danger or risk for the people at large.
IV. Neither the occurrence of public emergency nor the interest of public safety are secretive conditions or situations. Either of the situation would be apparent to a reasonable person.
V. The substantive law as laid down in Section 5(2) of the Act must have procedural safeguards for this valuable constitutional right as settled in Maneka Gandhi versus Union of India, that "procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within Article 21 of the Constitution of India has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself", and the 'procedure' must rule out anything arbitrary, freakish and bizarre.
8. The proposition that illegal tapping of telephone conversation violates right to privacy is now accepted and reinforced as guaranteed fundamental right under Article 21 of the Constitution of India, by a nine Judge Constitution Bench decision in K.S. Puttaswamy versus Union of India [MANU/SC/1044/2017 : (2017) 10 SCC 1]. by overruling the earlier Constitution Bench judgments, which did not consider right to privacy as fundamental rights, analogues to the American Fourth Amendment, viz. M.P. Sharma versus Satish Chandra [MANU/SC/0018/1954 : AIR 1954 SC 300]. or held that invasion of privacy is not an infringement of fundamental right guaranteed by Part III of the Constitution viz. Kharak Singh [MANU/SC/0085/1962 : AIR 1963 SC 1295] It has now been held by the Constitution Bench in K.S. Puttaswamy (supra) that the right to privacy is protected by the Constitution as an intrinsic part of the right to life and personal liberty under Article 21 of the Constitution of India and as a part of the freedom guaranteed by Part-Ill of the Constitution of India.
9. Moreover, the view taken in PUCL's case (supra) was affirmed by the said nine Judge Bench in K.S. Puttaswamy (supra) with following observations:
68. In a decision of a Bench of two judges of this Court in PUCL, the Court dealt with telephone tapping. The petitioner challenged the constitutional validity of Section 5(2) of the Indian Telegraph Act, 1885 and urged in the alternative for adopting procedural safeguards to curb arbitrary acts of telephone tapping.
69. ............. Telephone conversations were construed to be an important ingredient of privacy and the tapping of such conversations was held to infringe Article 21, unless permitted by 'procedure established by law'.
The Court also held that telephone tapping infringes the guarantee of free speech and expression under Article 19(1)(a) unless authorized by Article 19(2). The judgment relied on the protection of privacy under Article 17 of the International Covenant on Civil and Political Rights (and a similar guarantee under Article 12 of the Universal Declaration of Human Rights) which, in its view, must be an interpretative tool for construing the provisions of the Constitution. Article 21. in the view of the Court, has to be interpreted in conformity with international law.
578. It is not India alone, but the world that recognises the right of privacy as a basic human right. The Universal Declaration of Human Rights to which India is a signatory, recognises privacy as an international human right. The importance of this right to privacy cannot be diluted and the significance of this is that the legal conundrum was debated and is to be settled in the present reference by a nine-Judges Constitution Bench.
Test: Principle of proportionality and legitimacy
12. In view of the aforesaid clear and emphatic pronunciation of law on the subject by the Nine Judge Constitution Bench in K.S. Puttaswami (supra), it is no longer res-integra that:-
(a) The right to privacy is recognised by the Nine Judge Bench as inherent fundamental right having protection as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedom guaranteed by Part III of the Constitution which is subject to specified restrictions;
(b) Any infringement of the right to privacy by State Authorities will have to meet the following four tests based on the "Principle of proportionality and legitimacy":
1. The action must be sanctioned by law;
2. The proposed action must be necessary in a democratic society for a legitimate aim;
3. The extent of such interference must be proportionate to the need for such interference;
4. There must be procedural guarantees against abuse of such interference.
(c) All earlier judgments suggesting to the contrary, are no longer binding precedents. The matters of infraction of the fundamental right to privacy would now have to necessarily satisfy the aforesaid tests, and cannot be dealt with on the basis of the overruled judgments in M.P. Sharma (supra) or Kharak Singh (supra) or based thereon or on the same line of reasoning like R.M. Malkani (supra).
13. It is at this stage, it is pertinent to note that directions contained in PUCL (supra) are in consonance with the aforesaid 4 tests.
15. The petitioner before us is a businessman and is accused No. 2 in Special CBI Case No. 99 of 2011 arising out of FIR No. RC. 0682010003 of 11th April, 2011, lodged by CBI. In brief, the case of CBI alleges that the petitioner is a bribe-giver, who gave a bribe of Rs. 10,00,000/- to accused No. 1 (Public Servant-Bank Official) for getting certain credit related favour. We are not going into the merits or otherwise of the allegations levelled by CBI. The same can be assailed by the petitioner in his discharge application before the Trial Court.
16. We are of the view that as per Section 5(2) of the Act, an order for interception can be issued on either the occurrence of any public emergency or in the interest of the public safety. The impugned three interception orders were issued allegedly for the reason of 'public safety'. As held in PUCL (supra), unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers under the said section. The expression "Public Safety" as held in PUCL (supra) means the state or condition of freedom from danger or risk for the people at large. When either of two conditions are not in existence, it was impermissible to take resort to telephone tapping.
17. The Hon'ble Supreme Court in PUCL case (supra) has observed that neither the occurrence of public emergency nor the interest of public safety are secretive conditions or situations. Either of the situations would be apparent to the reasonable person.
18. Even at this stage, from the affidavits filed by the Respondents or the charge-sheet, the Respondents could not justify any ingredients of risk to the people at large or interest of the public safety, for having taken resort to the telephonic tapping by invading the right to privacy. Neither from the impugned orders nor from the record any situation showing interest of public safety is borne out.
19. We are satisfied that in peculiar fact of the instant case, the impugned three interception orders neither have sanction of law nor issued for legitimate aim, as sought to be suggested. The impugned three interception orders could not satisfy the test of "Principles of proportionality and legitimacy" as laid down by the nine judges' constitution bench decision in K.T. Puttaswamy (supra). We, therefore, have no hesitation in holding that all three impugned orders are liable to be set aside. Accordingly, we quash and set aside the same.
20. Having held so, the next question arises is as to whether any directions for destroying the intercepted messages are warranted in a particular case or the instant case. The answer to the said issue would lie in ascertaining whether following directions contained in PUCL case (supra) which are now upheld by the constitution bench decision in K.T. Puttaswamy (supra) are mandatory:
21. We find that there is no scope to presume that aforesaid directions are not mandatory. It is an admitted position that Rule 419(A)(17) which provides for destruction of intercepted messages also adopt the said directions. We can neither permit the Respondents to continue to ignore the directions of the Hon'ble Apex Court nor can we ignore the same. Having held that the impugned interception orders have been issued in contravention of the provisions of section 5(2) of the Act, we have no option but to further direct the destruction of intercepted messages.
IN THE HIGH COURT OF BOMBAY
Writ Petition No. 2367 of 2019
Decided On: 22.10.2019
Vinit Kumar Vs. Central Bureau of Investigation and Ors.
Hon'ble Judges/Coram:
R.V. More and N.J. Jamadar, JJ.
Author: R.V. More, J.
Citation: MANU/MH/2931/2019.
