The Madras High Court has ruled that the interception of telephone conversations without the existence of a “public emergency” or a threat to “public safety” amounts to a violation of the fundamental right to privacy under Article 21 of the Constitution. The judgment was delivered by Justice N. Anand Venkatesh in W.P. No. 143 of 2018 filed by P. Kishore, challenging an interception order issued under Section 5(2) of the Telegraph Act, 1885.
Background of the Case
The petitioner, P. Kishore, then Managing Director of Everonn Education Limited, challenged the order dated 12 August 2011 passed by the Ministry of Home Affairs. The order authorized the interception of his mobile phone communications, allegedly in the interest of public safety and public order.
Subsequently, the Central Bureau of Investigation (CBI) registered an FIR against the petitioner and others, including an Additional Commissioner of Income Tax, under Section 120-B of the Indian Penal Code and Section 7 of the Prevention of Corruption Act, 1988. The FIR alleged that a bribe of ₹50 lakhs was demanded by the tax officer to help Everonn Education Ltd evade taxes.
Although ₹50 lakhs in cash was seized from the officer and another individual during a CBI operation, it was admitted that the petitioner was not present at the scene nor was the money recovered from him.
Legal Challenge
The petitioner contended that the order permitting phone tapping was issued without meeting the strict requirements laid down in Section 5(2) of the Telegraph Act and Rule 419-A of the Telegraph Rules. It was argued that there was no public emergency or threat to public safety, which are mandatory preconditions for such an intrusion into the right to privacy.
The petitioner also relied on the Supreme Court’s landmark judgments in People’s Union for Civil Liberties v. Union of India and K.S. Puttaswamy v. Union of India to assert that phone tapping without procedural and substantive safeguards violates the right to privacy under Article 21.
Court’s Observations
The Court undertook a detailed historical and constitutional analysis of the right to privacy, tracing its development from common law through Indian constitutional jurisprudence. Relying on Supreme Court precedents, Justice Venkatesh held:
“Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.”
The Court held that the interception order did not meet the threshold under Section 5(2) of the Telegraph Act. It emphasized that “public emergency” or “public safety” must be apparent to a reasonable person and cannot be invoked on speculative grounds or extended to generic concerns such as reputation of a department.
“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.”
The Court further found that the impugned order mechanically reproduced the language of the statute without demonstrating independent application of mind or material justifying the invocation of such extraordinary powers.
It was also noted that the Review Committee, as required under Rule 419-A of the Telegraph Rules, was not involved, thereby violating the procedural safeguards prescribed by law.
Decision
Allowing the writ petition, the Court quashed the interception order dated 12 August 2011. It ruled that the order was issued in violation of both substantive and procedural legal safeguards and therefore unconstitutional.
The Court concluded:
“The impugned order, not being in consonance with Section 5(2) of the Telegraph Act and the procedural safeguards under Rule 419-A of the Telegraph Rules, violates the fundamental rights guaranteed under Article 21 of the Constitution.”
Case Title: P. Kishore v. The Secretary to Government and Others
Case Number: W.P. No. 143 of 2018
