Fundamental Right to Privacy and Tapping of Telephones

Shaunak Choudhury | Student of SVKM’s NMIMS Kirit P. Mehta School of Law | 21st May 2020

People’s Union for Civil Liberties v. Union of India (1997) 1 SCC 301

Facts 

The Petitioner in this case challenged the constitutional validity of section 5 (2) of the Indian Telegraph Act. This plea came in light of a report filed by the Central Bureau of Investigation regarding “Tapping of politicians’ phones”, which highlighted several infringements of privacy and procedure in the matter of tapping the phones of certain personnel. Section 5(2) of the  Act allows the Central or State governments or an authorized officer to intercept telegraphs during a “public emergency”. The Petitioners claimed that the policy was violative of article 21 as it violates right to privacy (a part of right to life). Under section 7 of the Act, the Central Government can make rules to prevent the abuse of the power given by section 5 (2) of the Act, but in the more than 100 hundred years of the existence of the Act, no government has put forth any such restrictions. The Respondent pleaded that it was essential for the government, in time of public emergency to tap the phones of those individuals that the government suspected. It also argued that the people whose phones were being tapped cannot be informed of that fact because that would defeat the purpose of tapping the phones.   

Issues 

1. Whether the right to privacy is a fundamental right under article 21.
2. Whether phone calls can be considered within the scope of right to privacy.
3. Whether section 5 (2) of the Indian Telegraph Act 1885 is unconstitutional.

Judgement

1. The Court found that although the right to privacy has not been explicitly mentioned in the Constitution, it is none the less part of article 21. The bench referred to Kharak Singh v. State of U.P. (AIR 1963 SC 1295) where the Supreme Court recognized that the right to life and liberty must include the right to be free from encroachments on his person, whether those encroachments come directly or indirectly in the way to infringing privacy. The bench looked at the U.S verdict of Wolf v. Colorado (338 US 25) where Justice Frankfurt observed that security of one’s privacy from arbitrary intrusion of the police is an unabashed violation of a person’s privacy, something integral to an individual’s life and liberty. Other judgements were also referred to in this case to definitively state that the right to privacy is a fundamental right ca; Munn v. Illiois (94 US 113), Gobind Singh v. State of Madhya Pradesh(1975 SCC (Cri) 468) and R. Rajagopal v. State of Tamil Nadu ((1994) 6 SCC 632). 
2. Since right to privacy was considered as too broad a concept to be well defined, the infringement of the same would be decided from fact to fact. A telephonic conversation was taken to be within the scope of right to privacy of a person. Conversations on a telephone are often intimate and confidential. Moreover, mobile phones are an integral part of a person’s life. Thus, phone calls are a part of a person’s private life. Thus, phone tapping can only take place as per procedure established by law. 
3. The Supreme Court through Hukam Chand Shyam Lal v. Union of India ((1978) 1 SCC 128) recognized that the only way the powers under section 5 (2) can be initiated by any of the parties mentioned, is when there is a public emergency. The situations where a public emergency can be declared are for the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence. Thus, there first must be a public emergency, thereafter the competent authority may intercept calls. The Court also recognized the need for procedural law to be set under the substantive one, but at the time of the judgement, the government had no such procedure under section 5(2) or under section 7 (2) (b) to avoid improper interception of messages. Since the judiciary itself cannot make permanent procedural laws under the Act, it gave temporary procedural safeguards that would prevent the misuse of the law and violation of fundamental rights till the Central government made the requisite rules.

Thus section 5(2) of the Indian Telegraph Act 1885 was deemed to be constitutional with the procedural safeguards that were provided by the Supreme Court.