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Bombay HC finds Home Ministry’s interception orders illegal, says procedural safeguards mandatory

In a landmark judgment, the Bombay High Court held that phone tapping is legal only if done in public emergency or a situation of harm to public safety. The court found the three phone tapping orders passed by the Home Ministry illegal. The petitioner, Vinit Kumar, argued that the phone-tapping orders — issued in 2009-10  in connection with bribing a bank official for a loan were illegal, and therefore could not be used as evidence. 

Telephone tapping can only be ordered if there’s a public emergency or the tapping is in the interest of public safety, as the Supreme Court had ruled in 1996. In this case, the Home Ministry and CBI failed to prove that interception for bribery charges was required for public safety or emergency. The court ruled the orders as illegal and said that the intercepted material cannot be used as evidence.

The court concluded that the CBI and Home Ministry had not followed proper legal procedure for interception. It also found that the interception orders do not meet the Puttaswamy tests, since they did not have the sanction of law and legitimate aim. 

What the Supreme Court laid out in PUCL case 

1. It laid out the only two scenarios in which phone-tapping can be ordered 

The Bombay high Court relied upon People’s Union for Civil Liberties v. Union of India (1996), wherein a two-judge bench of the Supreme Court had said that telephonic conversation in one’s home or office is part of one’s private life, and therefore is protected under Article 21 of the Constitution (fundamental right to life and liberty). The Supreme Court had clarified that two conditions need to be satisfied for interception under Section 5 (2) of Telegraph Act:

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  1. The first is the occurrence of any public emergency or the existence of a public-safety interest.
  2. Then, the competent authority should be satisfied that interception is necessary or useful in the interest of:
    1.  sovereignty and integrity of India,
    2. the security of the State,
    3. friendly relations with foreign States,
    4. public order, or
    5. for preventing incitement to the commission of an offence.

After satisfaction of both conditions, phone tapping orders can be passed, with the reasons recorded in a written order. In the PUCL judgment, “public emergency” was defined as “the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action.” “Public safety” was defined as “the state or condition of freedom from danger or risk for the people at large.” A public emergency or public safety concern would be evident to a reasonable person, as there’s nothing secretive about such a situation, said the Supreme Court. 

2. It laid down procedural safeguards for phone-tapping 

Before the PUCL case i.e. before 1997, there were no procedural safeguards for how powers to intercept under the Telegraph Act would be exercised, even though the Act empowered the government to make such rules. The Supreme Court had filled-in this void and framed rules to check the arbitrariness of the executive. The rules required a review of interception orders by a Review Committee. The procedure laid down by the Court was:

  1. The Committee at the Central Government level shall consist of Cabinet Secretary, Law Secretary, and the Telecom Secretary. 
  2. Phone-tapping orders need to be forwarded to the Review Committee within 7 working days. 
  3. The Review Committee has to review each phone-tapping order within 2 months of the order being passed to determine its legality. It can set aside a non-compliant order, and direct the destruction of intercepted material and its copies. In case the orders are compliant, the committee has to make a record of it being compliant. 
  4. The interception order remains in effect for 2 months, unless renewed. The authority can renew the order if it considers it necessary, but the order cannot be operational for more than 6 months. 

At the state level, the Review Committee will consist of the Chief Secretary, Law Secretary, and another member, other than the Home Secretary, appointed by the State Government. 

Centre’s own rules came in 2007: What they required in addition to SC guidelines 

These guidelines remained in force till the Centre laid down procedural rules for phone-tapping in March 2007, which largely reiterated the procedure given by the Supreme Court. In addition, the Centre’s rules required the following:  

  1. The Review Committee has to meet at least once every 2 months to determine the legality of the phone-tapping orders. 
  2. The rules further states that records pertaining to directions for interception and of intercepted messages shall be destroyed by the relevant competent authority and the authorized law enforcement agencies in every six months unless these are, or likely to, be required for functional requirements.

Why the Bombay HC struck down the interception orders 

1. There was no public emergency or interest of public safety

The Bombay High Court held that, phone-tapping for charge of bribery in this case, “could not justify any ingredients of risk to the people at large or interest of the public safety, for having taken resort to the telephonic tapping by invading the right to privacy.” 

2. Due process was not followed

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In the Bombay HC case, the court found serious discrepancies in the statements of CBI and Home Ministry regarding the procedure followed for interception. 

  1. The CBI had initially said that it had intercepted the phone only after the Home Ministry’s orders were approved by the Review Committee and that it has submitted the Review Committee’s approval orders (“review orders”) in the trial court. 
  2. The CBI later changed its stance and said that it doesn’t have the review order as they are given only to the authority ordering interception, which in this case was Home Ministry. 
  3. The Home Secretary then asserted that review orders are only issued when Review Committee finds them illegal, otherwise no review order is issued. It also said that the interception orders were destroyed after six months (or being ordered), in compliance with the 2007 rules. But according to the rules (see above), even when it upholds the order as legal, the review committee has to record in writing.

The High Court criticised the changing stance of CBI and Home Ministry, and concluded that proper procedure for interception was not followed as the orders were neither forwarded for review nor approved by the Review Committee. The court held that the procedure given in PUCL Case and then in 2007 rules are mandatory, and not following them makes the orders illegal.

3. The Puttaswamy standards were not met 

The High Court also analysed the privacy violation by interception in light of the Puttaswamy tests of proportionality and legitimacy, as laid down in the Right to Privacy judgment (Puttaswamy): 

  • The action must be sanctioned by law;
  • The proposed action must be necessary in a democratic society for a legitimate aim;
  • The extent of such interference must be proportionate to the need for such interference;
  • There must be procedural guarantees against abuse of such interference

The  Court found that the interception orders do not meet the Puttaswamy tests, since they don’t have sanction of law and legitimate aim. 

[embeddoc url=”http://staging.medianama.com/wp-content/uploads/CR1WP236719-1.pdf” download=”all”]

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