Syllabus

GS 2: Indian Constitution—historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

Context: Recently, the Madras High Court struck down the central government’s phone-tapping order by stating it as violating the fundamental right to privacy.

Background of the Case

• The court quashed a 2011 order by the Home Ministry to tap the phone of a person accused in a bribery case.
• Surveillance was approved in 2011 under Section 5(2) of the Indian Telegraph Act, 1885 and Rule 419-A of the Indian Telegraph Rules, 1951 which lay down the rules for phone tapping in India.
• The phone was tapped because the person was accused of offering a ₹50 lakh bribe to hide black money.
• The CBI argued that phone tapping was needed to detect and stop corruption.
• In 2018, a writ petition under Article 226 of the Constitution was filed to challenge the surveillance order.

Key highlights from the Judgment

• The court said tax evasion is not a “public emergency,” so the tap was not allowed. A 2011 press note had already said phone-tapping can't be used just to catch tax evasion.
• The tap also broke rules made by the Supreme Court in 1997.Since the tap was illegal, the information from it can't be used in court.
• The judgment supports earlier rulings in the PUCL (1997) and Puttaswamy (2017) cases and again confirms that the right to privacy is protected under Article 21 of the Constitution.
• Violation of Privacy: The Court said phone tapping breaks the right to privacy if it doesn’t follow proper legal procedures.
• No Valid Exception: Secretly tapping phones to detect crimes doesn’t count as a valid reason like “public emergency” or “public safety.”

Legal Provisions for Phone Tapping in India

• Indian Telegraph Act, 1885 – Section 5(2):
  Allows the Centre or State to tap phones only in cases of public emergency or public safety.
  Written reasons and formal approval are required.
  Must be reviewed by a Review Committee as per rules and Supreme Court guidelines.
• Indian Telegraph (First Amendment) Rules, 1999:
  Made after the PUCL (1997) judgment to give legal backing to privacy safeguards.
  Defines who can approve interception, for how long, and how it should be reviewed.
• Information Technology Act, 2000 – Section 69:
  Covers electronic communication like emails, chats, and online data.
  2009 IT Rules follow PUCL guidelines:
       Requires approval by a competent authority.
      Sets clear time limits and purpose restrictions.
      Calls for regular Review Committee oversight.
• These laws aim to balance national security with the citizen’s right to privacy.

Supreme Court Safeguards (PUCL Judgment Guidelines):

• Approval Authority
  Only the Home Secretary (Centre or State) can approve interception orders.
• Time Limit
  The order is valid for 2 months.
  Can be renewed but total duration cannot exceed 6 months.
• Destruction of Tapped Data:
  All recordings must be destroyed once they’re no longer needed under Section 5(2).
• Urgent Cases:
  In emergencies, an officer not below Joint Secretary in the Home Department can authorize.
• Review Committee Setup:
  Must be formed at both Central and State levels.
• Role of Review Committee:
  Must review all interception orders within 2 months.
  If the order is not legal under Section 5(2), the committee will cancel it and order destruction of all related material.

Mains Question

“Phone tapping, if done without proper legal procedures, violates the fundamental right to privacy under Article 21.” In light of recent judgments and statutory safeguards, critically examine the legal framework regulating surveillance in India. (15M, 250W)

Source:

https://indianexpress.com/article/explained/explained-law/explained-law-on-phone-tapping-and-two-hc-rulings-10112505/