Union for Civil Liberties (Pucl) Vs. The Union
of India & Anr  INSC 1637 (18 December 1996)
Singh, S.Saghir Ahmad Kuldip Singh, J.
- Tapping is a serious invasion of an individual's privacy. With the growth of
highly sophisticated communication technology, the right to sold telephone
conversation, in the privacy of one's home or office without interference, is
increasingly susceptible to abuse. It is no doubt correct that every
Government, howsoever democratic, exercises some degree of subrosa operation as
a part of its intelligence outfit but at the same time citizen's right to
privacy has to be protected from being abused by she authorities of the day.
petition - public interest - under Article 32 of the Constitution of India has
been filed by the People's Union of Civil Liberties, a voluntary organisation,
high lighting the incidents of telephone tapping in the recent past. The
petitioner has challenged the constitutional validity of Section 5(2) of the
Indian Telegraph Act, 1885 (the Act), in the alternative it is contended that
the said provisions be suitably read-down to include procedural safeguards to
rule out arbitrariness and to prevent the indiscriminate telephone-tapping.
writ petition was filed in the wake of the report on "Tapping of politicians
phones" by the Central Bureau of Investigation (CBI). Copy of the report
as published in the "Mainstream" volume XXIX dated March 26.1991 has
been placed on record along with the rejoinder filed by the petitioner.
authenticity of the report has not been questioned by the learned counsel for
the Union of India before us. Para 21 and 22
of the report are as under :
Investigation has revealed the following lapses on the part of MTNL
respect of 4 telephone numbers though they were shown to be under interception
in the statement supplied by MTNL, the authorisation for putting the number
under interception could not be provided. This shows that records have not been
respect of 279 telephone numbers, although authority letters from various authorised
agencies were available, these numbers have not been shown in list supplied by
MTNL showing interception of telephones to the corresponding period. This shows
that lists supplied were incomplete.
In respect of 133 cases, interception of the phones were done beyond the authorised
(0) MTNL in his explanation has said that this was done in good faith on oral
requests of the representatives of the competent authorities and that
interception beyond authorised periods will be done only on receipt of written
respect of 111 cases; interception of telephones have exceeded 180 days period
and no permission of Government for keeping the telephone under interception
beyond 180 days was taken.
files pertaining to interception have not been maintained properly.
Investigation has also revealed that various authorised agencies are not
maintaining the files regarding interception of telephones properly. One agency
is not maintaining even the log books of interception. The reasons for keeping
a telephone number on watch have also not been maintained properly. The
effectiveness of the results of observation have to be reported to the Government
in quarterly returns which is also not being sent in time and does not contain
all the relevant information. In the case of agencies other than I.B., the
returns are submitted to the MHA.
periodicity of maintenance of the records is not uniform. It has been found
that whereas DRI keeps record for the last years, in case of I.B., as soon as
the new quarterly statement is prepared, the old returns are destroyed for
reasons of secrecy. The desirability of maintenance of unireturn and periodicity
of these documents needs to be examined.
5(2) of the Act is as under "5(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 in this behalf by the
Central Govt. or a State 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 and offence, for
reasons to be recorded in writing, by order, direct that any message clear of
messages to or from any person or class of persons, 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 detailed, or
shall be disclosed to the Government making the order or an officer thereof
mentioned in the order:
that press message intended to be published in India of correspondents
accredited to the Central Government or a States Government shall not be
intercepted or detained, unless their transmission has been prohibited under
above provisions clearly indicate that in the event of the occurrence of a
public emergency or in the interest of public safety the Central Government or
the State Government or any officer specially authorised in this behalf, can
intercept messages if satisfied that it is necessary or expedient so to do in
the interest of :
The sovereignty and integrity of India.
The security of the State.
Friendly relations with foreign states.
For preventing incitement to the commission of an offence.
CBI report indicates that under the above provisions of law Director
Intelligence Bureau, Director General Narcotics Control Bureau, Revenue
Intelligence and Central Economic Intelligence Bureau and the Director
Enforcement Directorate have been authorised by the Central Government to do
interception for the purposes indicated above. In addition, the State
Governments generally give authorisation to the Police/Intelligence agencies to
exercise the powers under the Act.
Assistant Director General Department of Telecom has filed counter affidavit on
behalf of the Union of India.
stand taken by the Union of India is as under :
allegation that the party in power at the Centre/State or officer authorised to
tap the telephone by the Central/State Government could misuse this power is
not correct. Tapping of telephone could be done only by the Central/State
Government order By the Officer specifically authorised by the Central/State
Government in their behalf and it could be done only under certain conditions
such as National Emergency in the interest of public safety security of States
public order etc. It is also necessary to record the reasons for tapping before
tapping is resorted to. If the party whose telephone is to be tapped is to be
informed about this and also the reasons for tapping it will defeat the very
purpose of tapping of telephone. By the very sensitive nature of the work, it
is secrecy in the matter. In spite of safeguards, if there is alleged misuse of
the powers regarding tapping of telephones by any authorised officer, the
aggrieved part could represent to the state Government and suitable action
could be taken as may be necessary.
down the provision section 5(2) of the Indian telegraph Act, is not desirable
as it will jeopardise public interest and security of the State".
7 (2)(b) of the Act which gives making power to the Central Government is as
Power to make rules for the conduct of telegraphs -- (1) The Central Government
mays from time to time, by notification in the official Gazetted make rules
consistent with this Act for the conduct of all or any telegraphs, established,
maintained or worked by the Government or by persons licensed under this Act.
Rules under this section may provide for all or any of the following, among
other matters that is to say:
xx (b) the precautions to be taken for preventing the improper interception or
disclosure of message".
rules have been framed by the Central Government under the provisions quoted
Sachar, Sr. Advocate assisted by Mr. Sanjay Parikh vehemently contended that
right to privacy is a fundamental right guaranteed under Article l9(1) and
Article of the Constitution of India. According to Mr. Sachar to save Section
5(2) of the Act from to being declared unconstitutional it is necessary to read
down the said provision to provide adequate machinery to safeguard the right to
privacy. Prior judicial sanction - ex-parte in nature - according to Mr. Sachar,
is the only safeguard, which can eliminate the element of arbitrariness or
unreasonableness. Mr. Sachar contended that not only the substantive law but
also the procedure provided therein has to be just, fair and reasonable.
hearing the arguments on September
6, 1995, this Court passed
the following order.
is on his legs. He has assisted us in this matter for about half an hour. At
this stage, Mr. Kapil Sibal & Dr. Dhawan, who are present in Court, stated
that according to them the matter is important and they being responsible
members of the Bar, are duty bound to assist this Court in a matter like this.
We appreciate the gesture. We permit them to intervene in this matter.
need a short adjournment to assist us.
matter is adjourned to October
assisting this Court Mr. Kapil Sibal at the out set stated that in the interest
of the security and sovereignty of India and to deal with any other emergency situation for the protection of
national interest, messages may indeed be intercepted. According to him the
core question for determination is whether there are sufficient procedural
safeguards to rule out arbitrary exercise of power under the Act. Mr. Sibal
contended that Section 5(2) of the Act clearly lays down the
conditions/situations which are sine qua non for the exercise of the power but
the manner in which the said power can be exercised has not been provided.
According to him procedural safeguards short of prior judicial scrutiny - shall
have to be read in Section 5(2) of the Act to save it from the vice of
sides have relied upon the seven-Judge Bench judgment of this Court in Kharak
Singh V. The State of U.P. & Ors. (1964) 1 SCR 332. The
question for consideration before this Court was whether
"surveillance" under Chapter XX of the U.P.Police Regulations
constituted an infringement of any of the fundamental rights guaranteed by Part
III of the Constitution. Regulation 236(b) which permitted surveillance by
"domiciliary visits at night" was held to be violative of Article 21
on the ground that there was no "law" under which the said regulation
could be Justified.
word "life" and the expression "personal liberty" in
Article 21 were elaborately considered by this court in Kharak Singh`s case.
The majority read "right to privacy" as part of the right to life
under Article 21 of the Conctitution on the following reasoning:
have already extracted a passage from the judgment of Field, J. in Munn vs
Illinois (1877) 94 U.S. 113, 142 were the learned Judge Pointed out that "life"
in the 5th and 14th Amendments of the U.S. Constitution corresponding to
Art.21, means not merely the right to the continuance of a person's animal
existence, but a right to the possession of each of his organs-his arms and
legs etc. we do not entertain any doubt that the word "life" in
Art.21 bears the same signification. Is then the work "personal
liberty" to be constructed as excluding from its purview an invasion on
the part of the police of the sanctity of man's home and an intrusion into his
personal security and his right to sleep which is the normal comfort and a dire
necessity for human existence even as an animal? It might not be inappropriate
to refer here to the words of the preamble to the Constitution that it is
designed to "assure the dignity of the individual" and therefore of
those cherished human value as the means of ensuring his full development and
evolution. We are referring to these objectives of the framers merely to draw
attention to the concepts underlying the constitution which would point to such
vital words as "personal reasonable manner and to be attributed that sense
which would promote and achieve those objectives and by no means to stretch the
meaning of the phrase to square with any preconceived notions or doctrinaire constitutional
J. observed in Wolf v. Colorado (1949) 338 US "The security of one's privacy against
arbitrary intrusion by the police is basic to a free society.
therefore implicit in the concept of ordered party and as such enforceable
against the States through the Due Process Clause. The knock at the door,
whether by day or by night as a prelude to a search without authority of law
but solely on the authority of the police, did not need the commentary of
recent history to be condemned as inconsistent with the conception of human
rights enshrined in the history and the basic constitutional documents of
English-speaking peoples We have no hesitation in saying that here a State
affirmatively to sanction such police incursion into privacy it would run
counter to the guaranty of the Fourteenth Amendment." Murphy, J.
considered that such invasion was against "the very essence of a scheme of
true that in the decision of the U.S. Supreme Court from which we have made
these extracts, the Court had to consider also the impact of violation of the
Fourth Amendment which reads.
right of the people to be secure in their persons, houses, papers, and effect,
against unreasonable searches and seizures, shall to be violated; and no
warrants shall issue but upon probable cause, supported by oath or affirmation,
and particularly describing the place to be searched, and the persons of things
to be seized." and that our constitution does not in terms confer any like
these extracts would show that an unauthorised intrusion into a person's home
and the disturbance caused to him thereby, is as it were the violation of a
common law right of a man- an ultimate essential of ordered liberty, if not of
the very concept of civilisation. An English common Law maxim asserts that
"every man's house is his castle" and in Semayne`s case (1604) 5 Coke
91, where this was applied, it was stated that "the house of everyone is
to him as his castle and fortress as well as for his defence against injury and
violence as for his repose" We are not unmindful of the fact that Semayne's
case was concerned with the law relating to executions in England, but the
passage extracted has a validity quite apart from the context of the particular
decision. It embodies an abiding principle which transcends mere protection of
property rights and expounds a concept of "personal liberty" which
does not rest on any element of feudalism or on any theory of freedom which has
ceased to be of value.
view cl.(b) of Regulation 236 is plainly violative of Art 21 and as there is no
law on which the same could be justified it must be struck down as
unconstitutional." Subba Rao, J. (as the learned Judge then was) in his
minority opinion also came to the conclusion that right to privacy was a part
of Article 21 of the Constitution but went a step further and struck down
Regulation 236 as a whole on the following reasoning:
the right to personal liberty takes in not only a right to be free from
restrictions placed on his movements, but also free from encroachments on his
private life. It is true our Constitution does not expressly declare a right to
privacy as a fundamental right but the said right is an essential ingredient of
personal liberty Every democratic country sanctifies domestic life; it is
expected to give him rest, physical happiness, peace of mind and security. In
the last resort, a person's house, where he lives with his family, is his
"castle" " it is his rampart against encroachment on his
personal liberty. The pregnant words of that famous judge, Frankfurter J., in
Wolf v. Colorado (1949) 338 US 25, pointing out the importance of the security
of one's privacy against arbitrary instruction by the police, could have no
less application to an Indian home as to an American one.
physical encroachments on person's movements affect his personal liberty,
physical encroachments on his private life would affect it in a larger degree.
nothing is more deleterious to a man's physical happiness and health than a
calculated interference with his privacy. We would, therefore, define the right
of personal liberty in Art. 21 as a right of an individual to be free from
restrictions or encroachments on his person, whether those restrictions or
encroachments are directly imposed or indirectly brought about by calculated
measures, If so understood, all the acts of surveillance under Regulation 236
infringe the fundamental right of the petitioner under Art, 21 of the
Constitution." Article 21 of the Constitution has, therefore, been
interpreted by all the seven learned Judges in Kharak Singh's case (majority
and the minority opinions) to include that "right to privacy" is a
part of the right to "protection of life and personal liberty"
guaranteed under the said Article.
vs. State of Madhya Pradesh (1975) 2 SCC 148, a three-Judge Bench of this Court
considered the constitutional validity of Regulations 855 and 856 of the Madhya
Pradesh police Regulation his provided surveillance by way of several measures
indicated in the said regulations. This Court upheld the validity of the
regulations by holding that Article 21 was not violated because the impugned
regulation procedure established by law in terms of the said article.
In R. Rajgopal
alias R.R. Gopal and another vs. State of Tamil Nadu (1994) 6 SCC 632, Jeevan Reddy,J.
speaking for the Court observed that in recent times right to privacy has
acquired constitutional status. The learned Judge referred to Kharak's case, Govind's
case and considered a large number of American and English cases and finally
came to the conclusion that "the right to privacy is implicit in the right
to life and liberty guaranteed to the citizens of this country by Article 21.
It is a "right to be let alone". A citizen has a right "to
safeguard the privacy of his own, his family, marriage, procreation,
motherhood, child-bearing and education among other matters".
therefore, no hesitation in holding that right to privacy is a part of the
right to "life" and "personal liberty" enshrined under
Article 21 of the Constitution.
the facts in a given case constitute a right to privacy; Article 21 is
attracted. The said right cannot be curtailed "except according to
procedure established by law".
right privacy - by itself - has not been identified under the Constitution. As
a concept it may be too broad and moralistic to define it judicially. Whether
right to privacy can be claimed or has been infrigned in a given case would depend
on the facts of the said case. But the right to hold a telephone conversation
in the privacy of ones home or office without interference can certainly be
claimed as "right to privacy". Conversations on the telephone are
often of an intimate and confidential character. Telephone conversation is a
part of modern man's life. It is considered so important that more and more
people are carrying mobile telephone instruments in their pockets.
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.
to freedom of speech and expression is guaranteed under Article 19(1) (a) of
the Constitution. This freedom means the right to express ones convictions and
opinions freely by word of mouth, writing, printing, picture, or in any other
manner. When a person is talking on telephone, he is exercising his right to
freedom of speech and expression.
unless it comes within the grounds of restrictions under Article 19(2) would
infract Article 19(1)(a) of the Constitution.
India is a signatory to the International
Covenant on Civil and Political Rights, 1966. Article 17 of the said covenant
is as under:
one shall be subject to arbitrary or unlawful interference with his privacy,
family, human or correspondence, nor to lawful attacks on his honour and
Every one has the right to the protection of the law against such interference
or attacks." Article 12 of the Universal Declaration of Human Rights, 1948
is almost in similar terms.
law today is not confined to regulating the relations between the States. Scope
continues to extend.
matters of social concern, such as health, education and economics apart from
human rights fall within the ambit of International Regulations. International
law is more than ever aimed at individuals.
almost accepted proposition of law that the rules of customary international
law which are not contrary to the municipal law shall be deemed to be
incorporated in the domestic law.
51 of the Constitution direct that the State shall endeavour to inter alia,
foster respect for international law and treaty obligations in dealings of organised
peoples with one another. Relying upon the said Article, Sikri, C.J in Kesavananda
Bharathi vs. State of Kerala (1973) Supp. SCR 1 observed as
seems to me that, in view of Article 51 of the directive principles, this Court
must interpret language of the Constitution, if not intractable, which is after
all a municipal law in the light of the United Nations Charter and the solemn
declaration subscribed to by India."
In A.D.M. Jabalpur vs. S. Shukla, Khanna J. in his minority opinion observed as
well established is the rule of construction that if there be a conflict
between the municipal law on one side and the international law or the
provisions of any treaty obligations on the other the Courts would give effect
to municipal law. If, however two constructions of the municipal law are
possible, the Courts should lean in favour of adopting such construction as
would make the provisions of the municipal law to be in harmony with the
international law on treaty obligations. Every statutes according to this rule
interpreted, so far as its language permits. so as not to be inconsistent with
the comity of nations on the established rules of international law, and the
court will avoid a construction which would give rise to such inconsistency
unless compelled to adopt it by plain and unambiguous language." In Jolly
George Varghese vs. Bank of Cochin AIR 1980 SC 470, Krishna Iyer, J. posed the
the perspective of international law the question posed is whether it is right
to enforce a contractual liability by imprisoning a debtor in the teeth of
Article 11 of the International Covenant on Civil and Political Rights. The
shall be imprisoned merely on the ground of inability to fulfil a contractual
obligation." The learned Judge interpreted Section 51 of the Code of Civil
Procedure consistently with Article 11 of the International Covenant.
17 of the International Covenant - quoted above - does not go contrary to any
part of our Municipal law.
21 of the Constitution has, therefore, been interpreted in conformity with the
counsel assisting us in this case have not seriously challenged the
constitutional vires of Section 5(2) of the Act. In this respect it would be
useful to refer to the observations of this Court in Hukam Chand Shyam Lal vs.
Union of India & Ors. 1976 (2) SCC 128:
5(1) if properly construed,does not confer unguided and unbridled power on the
Central Government/State Government/specially authorised officer to take
possession of any telegraph. Firstly, the occurrence of a "public
emergency" is the sine qua non for the exercise of power under this
section. As a preliminary step to the exercise of further jurisdiction under
this section the Government or the authority concerned must record its
satisfaction as to the existence of such an emergency. which the existence of
the emergency which is a pre-requisite for the exercise of power under this
section must be a 'public emergency' and not any other kind of emergency. the
expression 'public emergency' has not been defined in the statute, but contours
broadly delineating its scope and features are discernible from the section
which has to be read as a whole. in sub- section (1) the phrase 'occurrence of
any public emergency' is connected with and is immediately followed by the
phrase "or in the interests of the public safety".
two phrases appear to take colour from each other. in the first part of
sub-section (2) those tow phrases again occur in association with each other,
and the context further clarifies with amplification that a 'public emergency'
within the contemplation of this section is one which raises problems
concerning the interest of the public safety, the sovereignty and intergrity of
India, the security of the State, friendly relations with foreign states or
public order or the prevention of incitement to the commission of an offence.
It is in the context of these matters that the appropriate authority has to
form an opinion with regard to the occurrence of a 'public emergency' with a
view to taking further action under this section. Economic emergency is not one
of those matters expressly mentioned in the statute. Mere 'economic emergency'-
as the High Court calls it - may not necessarily amount to a 'public emergency'
and justify action under this action unless it raises problems relating to the
matters indicated in the section." As mentioned above, the primary
contention raised by the learned counsel is to lay-down necessary safeguards to
rule-out the arbitrary exercise of power under the Act.
5(2) of the Act permits the interception of messages in accordance with the
provisions of the said Section. "Occurrence of any 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 Act.
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
Public emergency would mean the prevailing of a sudden condition or state of
affairs affecting the people at large calling for immediate action. The
expression "public safety" means the state or condition of freedom
from danger or risk for the people at large, When either of these two
conditions are not in existence, the Central Government or a State Government or
the authorised officer cannot resort to telephone tapping even though there is
satisfaction that it is necessary or expedient so to do in the interests of it
sovereignty and integrity of India etc. In other words, even if the Central
Government is satisfied that it is necessary or expedient so to do in the
interest of the sovereignty and integrity of India or the security of the State
or friendly relations with sovereign States or in public order or for
preventing incitement to the commission of an offence, it cannot intercept the
message, or resort to telephone tapping unless a public emergency has occurred
or the interest of public safety or the existence of the interest of public
safety requires. 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 a reasonable person.
first step under Section 5(2) of the Act, therefore, is the occurrence of any
public emergency or the existence of a Public-safety interest. Thereafter the
competent authority under Section 5(2) C the Act is empowered to pass at 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.
above analysis of Section 5(2) of the Act show 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 reasonably. The said procedure itself must be
just, fair and reasonable. It has been settled by this Court in Maneka Gandhi
vs. Union of India (1978) 2 SCR 621, that "procedure which deals with the
modalities of regulating, restricting or even rejection; 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 canalised
of the view that there is considerable force in the contention of Mr. Rajinder Sachar,
Mr. Kapil Sibal and Dr. Rajiv Dhawan that no procedure has been prescribed for
the exercise of the power under Section 5(2) of the Act. It is not disputed
that no rules have been framed under Section 7(2)(b) of the Act for providing
the precautions to be taken for preventing the improper interception or
disclosure of messages, In the absence of just and fair procedure for
regulating the exercise of power under Section 5(2) of the Act, it is not
possible to safeguard the rights of the citizens guaranteed under Articles
l9(1)(a) and 21 of the Constitution of India. The CBI investigation has
revealed several lapses in the execution of the orders passed under Section
5(2) of the Act, Paras 21 and 22 of the report have already been quoted in the
earlier part of this judgment.
Second Press Commission in paras 164, 165 and 166 of its report has commented
on the "tapping of telephones" as under:
of Telephones 164. It is felt in some quarters, not without reason, that not
infrequently the Press in general and its editorial echelons in particular have
to suffer tapping of telephone.
Tapping of telephones is a serious invasion of privacy. is a variety of
technological eavesdropping, Conversation on the telephone are often of an
intimate and confidential character. The relevant statue, i.e., Indian
Telegraph Act, 1885, a piece of ancient legislation, does not concern itself
cannot the regarded as a tort because the law as it stands today does not know
of any general right to privacy.
This is a hardly satisfactory situation. There are instances where appprehensions
of disclosure of sources of information as well as the character of information
may result in constraints on freedom of information and consequential drying up
of its source. We, therefore, recommend that telephones may not be tapped
except in the interest of national security public order of investigation. of
crime and similar objectives, under orders made in writing by the Minister
concerned, or an officer of rank to whom the power in that behalf is delegated.
order should disclose reasons.
order for tapping of telephones should expire after three months in from the
date of the order.
within a period, of six weeks the order should come up for review before an
Board constituted on the lines prescribed in statues providing for preventive
should be for the Board to decide whether tapping should continue any longer.
The decision of the Board should be binding on the Government. It may be added
that the Minister or his delegates will be competent to issue a fresh order for
tapping of the telephone if circumstances call for it. The Telegraph Act should
contain a clause to give effect to this recommendation." While dealing
with Section 5(2) of the Act, the Second Press Commission gave following
suggestions regarding "public emergency" and "interest of public
It may be noticed that the public emergency mentioned in the sub-section is not
an objective fact. Some public functionary must determine its existence and it
is on the basis of the existence of a public emergency that an authorised
official should exercise the power of withholding transmission of telegrams. We
think that the appropriate government should declare the existence of the
public emergency by a notification warranting the exercise of this power and it
is only after the issue of such a notification that the power of withholding
telegraphic messages should be exercise by the delegated authority. When such a
notification is issued, the principal officer of the telegraph office can be
required to submit to be the District Magistrate, whom we consider to be the
proper person to be the delegate for exercising this power, such telegrams
brought for transmission which are likely to be prejudicial to the interest
sought to be protected by the Sub-Section.
the District Magistrate should pass an order in writing withholding or allowing
the transmission of the telegram. We are suggesting the safeguard of a prior
notification declaring the existence of a public emergency because the power of
interception is drastic power and we are loath to leave the determination of
existence of a public emergency in the hands of a delegate".
are of the view that whenever the power is exercised in the interest of public
safety. it should, as far as possible, be exercised bag the concerned Minister
of the appropriate government for one month at a time extendible by Government
if the emergency continues. However in exceptional circumstances the power can
be delegated to the District Magistrate.
also think that as soon as order is passed by the District Magistrate
withholding the transmission of a telegraphic Message, it should be
communicated to the Central or State Governments as the case may be, and also
to the sender and the addressee of the telegram. The text of the order should
be placed on the table of the respective State legislatures after three months.
We recommend that, as suggested by the Press Council of India in its annual
report covering 1969, the officer in charge of a telegraph office should
maintain a register giving particulars of the time of receipt, the sender and
address of every telegram which he refers to the district Magistrate with
recommendation of its withholding.
the District Magistrate should maintain a register of the time receipt, content
and addressee of each telegram and record his decision thereon together with
the time of the decision. Data of this nature will help courts, if called upon,
to determine the presence or absence of a mala fide in the withholding of
to Mr. Sachar the only way to safeguard the right of privacy of an individual
is that there should be prior judicial scrutiny before any order for telephone-
tapping is passed under Section 5(2) of the Act. He states that such judicial
scrutiny may be exparte. Mr. Sachar contended that the judicial scrutiny alone
would take away the apprehension of arbitrariness or unreasonableness of the
action. Mr. Kapil Sibal, on the other hand has suggested various other
safeguards short of prior judicial scrutiny - based on the law on the subject
in England as enacted by the Interception of the Communications Act, 1985.
agree with Mr. Sibal that in the absence of any provision in the statute, it is
not possible to provide for prior judicial scrutiny as a procedural safeguard.
It is for the Central Government to make rules under Section 7 of the Act. Rule
7(2)(b) specifically provides that the Central Government may make rules laying
down the precautions to be taken for preventing the improper interception or
disclosure of messages. The Act was enacted in the year 1885. The power to make
rules under Section 7 of the Act has been there for over a century but the
Central Government has not thought it proper to frame the necessary rules
despite severe criticism of the manner in which the power under Section 5(2)
has been exercised. It is entirely for the Central Government to make rules on
the subject but till the time it is done the right to privacy of an individual
has to be safeguarded. In order to rule-out arbitrariness in the exercise of
power under Section 5(2) of the Act and till the time the Central Government
lays down just, fair and reasonable procedure under Section 7(2)(b) of the Act,
it is necessary to lay down procedural safeguards for the exercise of power
under Section 5(9) of the Act so that the right to privacy of a person is
therefore, order and direct as under:
order for telephone-tapping in terms of Section 5(2) of the Act shall not be
issued except by the Home Secretary, Government of India (Central Government)
and Home Secretaries of the State Governments. In an urgent case the power may
be delegated to an officer of the Home Department the Government of India and
the State Governments not below the rank of Joint Secretary. Copy of the order
shall be sent to the Review Committee concerned with one week of the passing of
order shall require the person to whom it is addressed to intercept in the
course of their transmission by means a public telecommunication system, such
communications as are described in the order. The order may also require the
person to whom it is addressed to disclose the intercepted material to such
persons and in such manner as are described in the order.
matters to be taken into account in considering whether an order is necessary
under Section list of the Act shall include whether the information which is
considered necessary to acquire could reasonably be acquired by other means.
interception required under Section 5(2) of the Act shall be the interception
of such communications as are sent to or from one or more addresses specified
in the order belong an address or addresses likely to be used for the
transmission of communications to or from, from one particular person specified
or described in the order or one particular set of premises described in the
order under Section 5(9) of the Act shall, unless renewed, case to have effect
at the end of the period of two month from the date of issue. The authority
which issued the order may, at any time before the end of two month period
renew the order if it by the State Government.
The Committee shall on its own, within two months of the passing of the order
by the authority concerned, investigate whether there is or has been a relevant
order under Section 5(2) of the Act. Where there is or has been an order
whether there has been any contravention of the provisions of Section 5(2) of
on an investigation the Committee concludes that there has been a contravention
of the provisions of Section 5(2) of the Act, it shall set aside the order
under scrutiny of the Committee. It shall further direct the destruction of the
copies of the intercepted material.
on investigation, the Committee comes to the conclusion that there has been no
contravention of the provisions of Section considers that it is necessary to
continue the order in terms of Section 5(2) of the Act. The total period for
the operation of the order shall not exceed six months.
authority which issued the order shall maintain the following records:
intercepted communications, (b) the extent to which the material is disclosed,
(c) the number of persons and their identity to whom any of the material is
extent to which the material is copied and (e) the number of copies made of any
of the material.
use of the intercepted material shall be limited to the minimum that is
necessary in terms of Section 5(2) of the Act.
Each copy made of any of the intercepted material shall be destroyed as soon as
its retention is no longer necessary in terms of Section 5(2) of the Act.
There shall be a Review Committee consisting of Cabinet Secretary, the Law
Secretary and the Secretary, Telecommunication at the level of the Central Government.
Review Committee at the State level shall consist of Chief Secretary, Law
Secretary and another member, other than the Home Secretary, appointed 5(2) of
the Act, it shall record the finding to that effect.
writ petition is disposed of. No costs.