Facts
The writ petition was filed challenging an order dated 12.08.2011 issued under Section 5(2) of the Indian Telegraph Act, 1885, read with Rule 419-A of the Telegraph Rules, 1951, authorizing interception of mobile phone communications. The order cited grounds of “public safety and in the interest of public order” and was passed “for preventing incitement to the commission of an offence.” The intercepted communications formed the basis for an FIR registered by the CBI alleging a ₹50 lakh bribe to an IRS officer to suppress tax liabilities, eventually leading to seizure of the bribe money from the officer and a co-accused.
The petitioner contended that the interception violated his fundamental right to privacy under Article 21 of the Constitution and did not satisfy the jurisdictional requirements of Section 5(2). He emphasized that the order was mechanical and lacked independent application of mind, and that “no direction was given by the competent authority for placing the samples before the Review Committee,” violating Rule 419-A and the binding precedent in People’s Union for Civil Liberties v. Union of India.
Ratio and reasoning
The Court situated its analysis within the constitutional evolution of the right to privacy. Citing K.S. Puttaswamy v. Union of India, it observed:
“It was unanimously declared that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.”
“Let the right to privacy, an inherent right, be unequivocally a fundamental right embedded in Part III of the Constitution of India, but subject to the restrictions specified, relatable to that part. This is the call of today. The old order changeth yielding place to new.”
Referring to PUCL, the Court held:
“Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.”
“The right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as ‘right to privacy’…Telephone conversation is an important facet of a man’s private life.”
Addressing the threshold requirement under Section 5(2), the Court held that “public emergency” or “public safety” must be clearly established:
“Public emergency would mean the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action.”
“These two phrases appear to take colour from each other…a ‘public emergency’ within the contemplation of this Section is one, which raises problems concerning the interest of the public safety, the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order.”
The Court rejected the respondents’ assertion that the risk to the reputation of the Income Tax Department constituted “public safety,” stating:
“Covert surveillance of the type conducted in this case definitely cannot fall within the aforesaid two situations contemplated under Section 5(2) of the Act.”
On procedural lapses, it noted the lack of compliance with Rule 419-A:
“The intercepted conversations were not placed before the Review Committee in terms of Rule 419-A…The Government cannot feign ignorance of the law, when it purportedly issued the impugned order.”
While the petitioner urged the exclusion of illegally obtained evidence, invoking the doctrine of “fruit of the poisonous tree,” the Court acknowledged that Indian jurisprudence, particularly Pooran Mal v. Director of Inspection and R.M. Malkani, had rejected that doctrine. However, it noted a shift post-Puttaswamy:
“The decisions…require a re-look in the light of the law laid down by the 9 Judges’ Bench…The question as to whether the evidence collected pursuant to an unconstitutional act should be admissible must be left open for consideration in an appropriate case.”
Conclusions
97. The result of the above discussions can be summed up as follows:
“i. The right to privacy is now an integral part of the right to life and personal liberty guaranteed under Article 21 of The Constitution of India.
ii. Telephone tapping constitutes a violation of the right to privacy unless justified by a procedure established by law. Section 5(2) of the Act authorizes interception of telephones on the occurrence of a public emergency or in the interests of public safety. Both these contingencies are not secretive conditions or situations. Either of the situations would be apparent to a reasonable person. As laid down in paragraph 28 of the decision of the Hon’ble Apex Court in People’s Union for Civil Liberties, it is only when the above two situations exist that the Authority may pass an order directing interception of messages after recording its satisfaction 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 or (5) for preventing incitement to the commission of an offence.
iii. In the instant case, the impugned order dated 12.8.2011 does not fall either within the rubric of “public emergency” or “in the interests of public safety” as explained by the Hon’ble Supreme Court in the case of People’s Union for Civil Liberties. The facts disclose that it was a covert operation/secretive situation for detection of crime, which would not be apparent to any reasonable person. As the law presently stands, a situation of this nature does not fall within the four corners of Section 5(2) of the Act as expounded by the Hon’ble Supreme Court in the case of People’s Union for Civil Liberties, which has been approved by the Constitution Bench of the Hon’ble Supreme Court in K.S.Puttaswamy (Aadhaar-5J) Vs. Union of India [reported in 2019 (1) SCC 1].
iv. The respondents have also contravened Rule 419-A(17) of the Rules by failing to place the intercepted material before the Review Committee within the stipulated time to examine as to whether the interception was made in compliance with Section 5(2) of the Act.
v. As a consequence of (iii) and (iv) above, the impugned order dated 12.8.2011 must necessarily be set aside as unconstitutional and one without jurisdiction. Besides violating Article 21, it is also ultra vires Section 5(2) of the Act besides being in violation of the mandatory provisions of Rule 419-A of the Rules.
vi. It follows that the intercepted conversations collected pursuant to the impugned order dated 12.8.2011 in violation of Section 5(2) of the Act and Rule 419-A(17) of the Rules shall not be used for any purposes whatsoever.
vii. It is, however, made clear that the above direction shall have no bearing on the other material that have been collected by the CBI subsequent to and independent of the intercepted call records, which shall be considered by the Trial Court on its own merits without being influenced by any of the observations made in this order.”
Thus, the Hon’ble court has concluded that
“The impugned order dated 12.08.2011 is hereby quashed as being violative of Article 21 of the Constitution of India and not in conformity with Section 5(2) of the Indian Telegraph Act, 1885 and Rule 419-A of the Telegraph Rules, 1951.”
The writ petition was allowed, with the Court invalidating the interception order but refraining from deciding conclusively on the admissibility of the derived evidence, recognizing it as an open constitutional question for future consideration.
Party
P. Kishore vs. The Secretary to Government of India, Ministry of Home Affairs & Ors. Coram: The Honourable Mr. Justice N. Anand Venkatesh Judgment Date: 02.07.2025 Case No: WP.No.143 of 2018
