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PEOPLE’S UNION FOR CIVIL LIBERTIES [PUCL]

 

V

 

UNION OF INDIA (AIR 1997 SC 568)

 

The People’s Union for Civil Liberties [PUCL] filed a writ petition with the Supreme Court challenging the constitutional validity of Section 5(2) of the Indian Telegraph Act, 1882, which authorizes the government to intercept messages .on the occurrence of any public emergency or in the interest of public safety. If it is satisfied that it is necessary or expedient to do so in five given situations.  

 

PUCL approached the Court on the basis of a report on tapping of politician’s telephones by the Central Bureau of

Investigation [CBI]. It asked for the provisions of Section 5(2) to be interpreted in the light of fundamental rights and read down to include procedural safeguards that would discount arbitrariness and prevent indiscriminate phone tapping by law enforcement or investigating agencies.

 

Observations made by the Supreme Court

 

The right to have telephone conservation in the privacy of one’s home or office is part of the Right to Life and Personal Liberty enshrined in Article 21 of the Constitution, which cannot be curtailed except .according to the procedure established by law. The Supreme Court asserted that telephone tapping amounts to an invasion of privacy in violation of this core right. The Freedom of Speech and Expression guaranteed by Article 19 of the Constitution includes the right to express one’s convictions and opinions freely by word of mouth. When a person is talking on the telephone, s/he is exercising this freedom.

 

Article 17 of the International Covenant on Civil and Political Rights, 1966 expressly forbids arbitrary interference with privacy, family, home or correspondence and stipulates that everyone has the right to protection of the law against such intrusions. The Supreme Court affirmed that international law, if it does not conflict with national legislation will be deemed as municipal [domestic/national] law.

 

Elaborating the scope of Section 5 (2) of the Indian Telegraph Act, 1882 the Court clarified that this section .does not confer unguided and unbridled power on investigating agencies to invade a person’s privacy. Telephone tapping is only permitted in the following two circumstances:

 

(i) On the occurrence of a Public Emergency. : This means the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action.

 

(ii) In the interest of Public Safety. : This means the state or condition of freedom from danger for the people at large.

The test of whether the above circumstances exist would be apparent to a reasonable person.

 

The Supreme Court strongly asserted, that if the two circumstances are not in the interests of

 

(i) the sovereignty and integrity of India

 

(ii) the security of the State

 

(iii) friendly relations with foreign States

 

(iv) public order

 

(v) preventing incitement to the commission of an offence

 

the Central or State Government or their duly authorized officers cannot resort to phone tapping.

 

Directives of Supreme Court

 

  1. Tapping of telephones is prohibited without an authorizing order from the Home Secretary, Government of India or the Home Secretary of the concerned State Government

 

  1. The order, unless it is renewed shall cease to have authority at the end of two months from the date of issue. Though the order may be renewed, it cannot remain in operation beyond six months.

 

  1. Telephone tapping or interception of communications must be limited to the address (es) specified in the order or to address (es) likely to be used by a person specified in the order.

 

  1. All copies of the intercepted material must be destroyed as soon as their retention is not necessary under the terms of Section 5 (2) of the Indian Telegraph Act, 1882.

 

  1. In an urgent case, this power may be delegated to an officer of the Home Department, Government of India or the Home Department of the State government, who is not below the rank of Joint Secretary. Copy of this order should be sent to the concerned Review Committee within one week of passing of the order.

 

  1. This Review Committee shall consist of the Cabinet Secretary, Law Secretary and the Secretary Telecommunications at the Central Government. At the state level, the Committee shall comprise of Chief Secretary, Law Secretary and another member (other than the Home Secretary) appointed by the State Government. The Committee shall on its own, within two months of the passing of an order under Section 5 (2) investigate whether its passing is relevant. If an order is in existence, the Committee should find out whether there has been a contravention of the provisions of Section 5 (2). If the Review Committee on investigation concludes that provisions of Section 5 (2) have been contravened, it shall direct destruction of the copies of the intercepted material.