Phone Tapping and Right to Privacy

Syllabus: GS2/Polity and Governance

Context

• The Madras High Court refused to expand the scope of Section 5(2) of the Indian Telegraph Act of 1885, and permit the Central and State governments to resort to phone tapping as a covert measure to detect crimes.
  • The HC held that legislature, not judiciary, is responsible for expanding such laws.

Phone Tapping

• Phone tapping refers to the interception of telephone conversations by a third party, often by government agencies, to gather information. 
• It is a form of surveillance and, if misused, can violate individual privacy and constitutional rights.

Legal Framework in India

• Indian Telegraph Act, 1885 – Section 5(2): Allows the Centre or State to intercept messages on two grounds: Public emergency and Public safety
  • Requires recording of reasons in writing and a formal authorization.
  • Must be reviewed by a Review Committee (as per Telegraph Rules and Supreme Court guidelines).
• Indian Telegraph (First Amendment) Rules, 1999: In pursuance of the PUCL judgment, the Government of India framed rules to provide a statutory backing to the safeguards laid down by the Supreme Court.
  • These rules regulate the procedures for interception, and define authorities, duration, and review mechanisms for lawful interception under the Indian Telegraph Act.
• Information Technology Act, 2000 – Section 69: Similar rules were framed under the Information Technology Act, 2000 in 2009.
  • These govern the interception of electronic communication such as emails, chats, and online data.
  • The 2009 IT Rules mirror the principles laid down in the PUCL judgment, ensuring: Authorization by a competent authority, defined time limits, strict purpose limitation, and oversight by a Review Committee.

SC Guidelines under the PUCL v. Union of India (1996): 

• It is the first major judgment linking phone tapping to the right to privacy. The Supreme Court issued procedural safeguards: 
• Approval: Only by Home Secretary or the Home Secretary of the concerned State Government.
• Time Limit for Validity of Order: The order for interception shall cease to be valid after two months from the date of issue unless it is renewed.
  • Even if renewed, no order can remain in force beyond six months in total.
• Destruction of Intercepted Material: All copies of intercepted communication must be destroyed as soon as their retention is no longer necessary under the terms of Section 5(2).
• Delegation in Urgent Cases: In urgent cases, the power of authorization may be delegated to an officer not below the rank of Joint Secretary in the Home Department of either the Central or State Government.
• Formation and Role of Review Committee: The Court mandated the constitution of a Review Committee at both the Central and State levels:
  • Functions of the Review Committee: The Committee must review all interception orders within two months of issuance.
    • If the Committee finds that the interception was not in accordance with Section 5(2), it shall declare the order as invalid, and direct destruction of all intercepted material collected under that order.

Concerns with Phone Tapping 

• Violation of Fundamental Rights: Phone tapping directly infringes the Right to Privacy, which is part of Article 21 of the Constitution as held in the K.S. Puttaswamy (2017) judgment.
• Vague and Broad Legal Grounds: The terms “public emergency” and “public safety” in Section 5(2) of the Telegraph Act, 1885 are not clearly defined, making them prone to subjective interpretation and misuse.
• Inadequate Procedural Safeguards: Though PUCL guidelines exist, implementation is inconsistent, orders are often issued without urgency or public interest justification.
• Absence of Data Protection Law: India lacks a comprehensive data protection framework, though the Digital Personal Data Protection Act, 2023 has been introduced.
  • In the absence of specific safeguards for surveillance, citizens’ data and communications remain vulnerable.
• Technological Challenges: Advancements in technology make mass surveillance easier, and interception can be conducted without leaving any trace or audit trail.

Significance of the HC Judgement

• Reinforces Rule of Law: Upholds statutory limits on State surveillance.
• Strengthens Privacy Jurisprudence: Emphasizes that privacy cannot be breached merely for investigative convenience.
• Limits Executive Power: Prevents misuse of phone tapping provisions under the pretext of crime detection.
• Sets Precedent: Future interception orders may be challenged if due process or Section 5(2) conditions are violated.

Conclusion

• The PUCL v. Union of India case is a landmark judgment that recognizes telephone privacy as a fundamental right under Article 21. 
• It imposes strict procedural safeguards on phone tapping to prevent abuse and arbitrary surveillance. 
• This decision continues to serve as the bedrock of privacy jurisprudence in India, and it led to the creation of statutory rules ensuring transparency, accountability, and limited government intrusion into private communications.

Source: TH