VERY IMPORTANT POINTS
1. Right to privacy is a part of the right to life and personal liberty enshrined under Article 21 of the Constitution and telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.
2. Telephone-tapping unless it comes within the grounds of restrictions under Article 19(2) would infract Article 19(1)(a) of the Constitution.
3. In order to rule-out arbitrariness in the exercise of power u/s 5(2) of the Indian Telegraph Act and till the time the Central Government lays down just, fair and reasonable procedure u/s 7(2)(b) of the Act, the Supreme Court has laid down procedural safeguards for the exercise of power u/s 5(2) of the Act so that the right to privacy of a person is protected.

Headnote:(i) TAPPING OF TELEPHONES-Constitution of India-Articles 19(1)(a), 19(2) & 21-Right to privacy-A part of right to life and personal liberty enshrined under Article 21-Right to privacy would include telephone conversation in privacy of one s home or office-Telephone-tapping would, thus, infract Article 21 unless it is permitted under procedure established by law-Telephonic-tapping unless it comes within the grounds of restrictions under Article 19(2) would infract Article 19(1)(a).
       Held that right to privacy is a part of the right to "life" and "personal liberty" enshrined under Article 21 of the Constitution. Once 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." The right to 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 infringed 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. Telephone 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. Right 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. Telephone-tapping unless it comes within the grounds of restrictions under Article 19(2) would infract Article 19(1)(a) of the Constitution. (Paras 16 to 18)
       (ii) Indian Telegraph Act, 1885-Section 5(2)-Constitutional validity of- Occurrence of any public emergency or in interest of public safety are sine qua non for application of provisions of Section 5(2)-No procedure prescribed for exercise of power u/s 5(2)-CBI investigation has revealed lapses in execution of orders passed u/s 5(2)-To rule out arbitrariness and till the time Central Government lays down just, fair and reasonable procedure u/s 7(2)(b), procedural safeguards laid down.
       Held :
        1. An 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 of 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 within one week of the passing of the order.
        2. The 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.
        3. The matters to be taken into account in considering whether an order is necessary under Section 5(2) of the Act shall include whether the information which is considered necessary to acquire could reasonably be acquired by other means.
        4. The 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, being 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 specified or described in the order.
        5. The order under Section 5(2) of the Act shall, unless renewed, cease 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 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.
        6. The authority which issued the order shall maintain the following records :
        (a) the 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 disclosed,
        (d) the extent to which the material is copied, and
        (e) the number of copies made of any of the material.
        7. The use of the intercepted material shall be limited to the minimum that is necessary in terms of Section 5(2) of the Act.
        8. 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.
        9. There shall be a Review Committee consisting of Cabinet Secretary, the Law Secretary and the Secretary, Telecommunication at the level of the Central Government. The Review Committee at the State level shall consist of Chief Secretary, Law Secretary and another member, other than the Home Secretary, appointed by the State Government. (Para 32)

Judgement Key Points

Certainly. Based on the provided legal document, here are the key points summarized with appropriate references:

The right to privacy is recognized as an integral part of the right to life and personal liberty under Article 21 of the Constitution. Telephone conversations, being private and confidential, are included within this right, and any interference such as telephone-tapping would infringe upon it unless permitted by a procedure established by law (!) (!) .
The right to freedom of speech and expression under Article 19(1)(a) encompasses the right to communicate freely via telephone. Telephone-tapping, without adherence to restrictions under Article 19(2), would violate this fundamental right (!) .
The power to intercept communications under Section 5(2) of the Indian Telegraph Act, 1885, is constitutionally valid only in cases of public emergency or in the interest of public safety, and only when the conditions specified in the law are satisfied. However, the law does not specify procedural safeguards, which raises concerns about potential arbitrariness (!) (!) (!) .
The exercise of powers under Section 5(2) must be accompanied by a just, fair, and reasonable procedure to prevent abuse and protect individual rights. The absence of prescribed procedures or rules for exercising this power can lead to violations of constitutional rights (!) (!) (!) .
The exercise of telephone-tapping should be authorized only by designated authorities, such as the Home Secretary or officers of equivalent rank, and a copy of the order should be sent to a review or oversight committee within a specified timeframe to ensure accountability (!) (!) .
Orders for interception must specify the communications to be intercepted and the persons or addresses involved, and should be limited in scope and duration—initially for a maximum of two months, with renewal possible but not exceeding six months in total. These orders should be subject to periodic review and record-keeping (!) (!) (!) .
Safeguards should include maintaining detailed records of intercepted communications, disclosures, and copies, as well as limiting the use of intercepted material to the minimum necessary. All copies should be destroyed once their retention is no longer justified (!) (!) (!) (!) .
An independent review or oversight committee at both central and state levels should investigate and monitor the exercise of interception powers. If violations or contraventions are found, the orders should be set aside, and the intercepted material should be destroyed (!) (!) (!) .
In the absence of specific statutory rules, procedural safeguards such as prior judicial approval or ex-parte judicial scrutiny are essential to prevent arbitrary exercise of powers and to uphold constitutional rights. Such safeguards are necessary until appropriate rules are formulated by the central authority (!) (!) (!) .
Overall, any exercise of power to intercept communications must be backed by clear legal authority, proper procedural safeguards, and oversight mechanisms to ensure protection of fundamental rights and prevent misuse (!) (!) (!) (!) .

Please let me know if you need further elaboration or specific legal advice based on these points.

JUDGMENT

Kuldip Singh J.-Telephone - Tapping is a serious invasion of an individual s privacy. With the growth of highly sophisticated communication technology, the right to hold 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 the authorities of the day.

2. This 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.

3. The 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. The 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 :-

"21. Investigation has revealed the following lapses on the part of MTNL (i) In 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 maintained properly.

(ii) In 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.

(iii) In respect of 133 cases, interception of the phones were done beyond the authorised part. The GM (O), 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 instructions have now been issued that interception beyond authorised periods will be done on receipt of written requests.

(iv) In 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.

(v) The files pertaining to interception have not been maintained properly.

22. 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. The periodicity of maintenance of the records is not uniform. It has been found that whereas DRI keeps record for the last 5 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.

Section 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 Go

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1996 Supreme(SC) 2199

Cases Referred (7)