People's Union for Civil Liberties v. Union of India

Supreme Court of India · 18 December 1996 · 2 judges

Telephone tapping infringes privacy under Article 21 unless permitted by procedure established by law, and Article 19(1)(a) unless within Article 19(2); pending rules under Section 7(2)(b) of the Telegraph Act, the Court laid down safeguards for Section 5(2) interception.

Facts

The People's Union for Civil Liberties filed a public interest petition under Article 32 after a CBI report on 'Tapping of politicians phones', whose authenticity the Union did not question, recorded lapses: interceptions without authorisation records, beyond authorised periods, beyond 180 days without permission, and poorly kept files. The petitioner challenged Section 5(2) of the Indian Telegraph Act, 1885, or sought that it be read down to include procedural safeguards. The Union of India defended the provision as necessary for security. No rules had been framed under Section 7(2)(b) on precautions against improper interception. Counsel assisting the Court did not seriously challenge the vires of Section 5(2) and focused on safeguards; Mr. Sachar urged prior judicial scrutiny, while Mr. Sibal suggested safeguards short of it.

Questions before the Court

Does telephone tapping infringe the right to privacy under Article 21 and the freedom of speech under Article 19(1)(a)?
When can the power of interception under Section 5(2) of the Indian Telegraph Act, 1885 be exercised?
In the absence of rules, what procedural safeguards must govern telephone tapping?

What the Court held

The right to privacy is part of the right to life and personal liberty under Article 21 and cannot be curtailed except according to procedure established by law. The right to hold a telephone conversation in the privacy of one's home or office is part of it, so tapping infringes Article 21 unless permitted by such procedure.
A person talking on the telephone exercises freedom of speech and expression; tapping infringes Article 19(1)(a) unless it falls within the restrictions under Article 19(2).
Occurrence of a public emergency or the interest of public safety is the sine qua non for Section 5(2). Neither is a secretive condition; either would be apparent to a reasonable person. Only then may the authority, recording reasons, order interception on the five stated grounds.
Section 5(2) needs a just, fair and reasonable procedure. Prior judicial scrutiny cannot be provided without a statutory provision. Until rules are made under Section 7(2)(b), orders may be made only by Home Secretaries (in urgent cases, an officer not below Joint Secretary), last two months unless renewed, not exceed six months in all, and be checked by Review Committees.

Why it matters

The judgment reads the right to privacy into Article 21 for telephone conversations, interprets Article 21 in conformity with Article 17 of the International Covenant on Civil and Political Rights, and defines 'public emergency' and 'public safety' under Section 5(2). Without striking down the provision, it filled the gap left by the absence of rules by laying down binding procedural safeguards, including Review Committees at the Central and State levels, until the Central Government frames rules.

In the Court's words

Copied from the official judgment; each passage links to its page.

“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.”

Kuldip Singh, J. (for the Court)Page 9 of the judgment

“Public emergency would mean the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action. The expression "public safety" means the state or condition of freedom from danger or risk for the people at large, When either of these two conditions are not in existence, the Central Government or a State Government or the authorised officer cannot resort to telephone tapping even though there is satisfaction that it is necessary or expedient so to do in the interests of it sovereignty and integrity of India etc.”

Kuldip Singh, J. (for the Court)Page 12 of the judgment

“It is entirely for the Central Government to make rules on the subject but till the time it is done the right to privacy of an individual has to be safeguarded. In order to rule-out arbitrariness in the exercise of power under Section 5(2) of the Act and till the time the Central Government lays down just, fair and reasonable procedure under Section 7(2)(b) of the Act, it is necessary to lay down procedural safeguards for the exercise of power under Section 5(9) of the Act so that the right to privacy of a person is protected.”

Kuldip Singh, J. (for the Court)Page 15 of the judgment

Provisions interpreted

Article 21, Constitution
Article 19(1)(a) and 19(2), Constitution
Section 5(2), Indian Telegraph Act, 1885
Section 7(2)(b), Indian Telegraph Act, 1885

Related judgments

Follows Kharak Singh v. State of Uttar Pradesh (1962)“Article 21 of the Constitution has, therefore, been interpreted by all the seven learned Judges in Kharak Singh's case (majority and the minority opinions) to include that "right to privacy" is a part of the right to "protection of life and personal liberty"” (page 8)
Follows Maneka Gandhi v. Union of India (1978)“The said procedure itself must be just, fair and reasonable. It has been settled by this Court in Maneka Gandhi vs. Union of India (1978) 2 SCR 621” (page 12)

Case and bench

Parties: People's Union for Civil Liberties (PUCL) v. The Union of India
Case: Writ petition under Article 32 (number not printed in the file)
Decided: 18 December 1996
Bench: Kuldip Singh, S. Saghir Ahmad
Opinions: Unanimous. Judgment delivered by Kuldip Singh, J.

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