Breath of fresh air from Bombay High Court on Phone Tapping

Snooping and tapping of phones is the flavour of the month in the area of policy-making and law enforcement. 

Two Parliamentary Standing Committees – one on Home Affairs and the other on Information Technology are scheduled to take stock, later this month, of which government agency used the services of an Israeli IT firm that helped hack into WhatsApp accounts of Indians to intercept communication on their smartphones;

The Supreme Court is reported to have been dismayed and sought explanations for the phone of an IPS officer in the Economic Offences Wing of Chhattisgarh being tapped by the state government; and

Petitions in public interest litigation are being filed to get a share of the stage in litigating about the breach of Indian usage of WhatsApp.

Against this backdrop, the most noteworthy development is the recent resounding ruling by a division bench of the Bombay High Court, actually applying in a real case, the law declared by the nine-judge Bench of the Supreme Court in Puttaswamy.  In an incisive analysis of the law so declared, the court has reaffirmed the 1997 ruling of the Supreme Court in PUCL case, in which, directly on the point of tapping of telephone communication by the State, the Supreme Court had ruled that Section 5(2) of the Indian Telegraph Act, 1885 would confer jurisdiction to intercept telephonic communication only when the State could actually demonstrate occurrence of a “public emergency” or the need to protect the interests of “public safety”.

“Neither the occurrence of public emergency nor the interest of public safety are secretive conditions or situations,” the apex court had ruled in PUCL. “Either of the situations would be apparent to a reasonable person.”  The Supreme Court then laid down procedural safeguards to ensure that the exercise of power under Section 5(2) of the Telegraph Act was not “arbitrary, freakish or bizarre” – by direction the formation of a Review Committee at the Centre, comprising the Cabinet Secretary, Law Secretary and the Telecom Secretary.  At the state level, the Review Committee would comprise the Chief Secretary, Law Secretary and another member other than the Home Secretary.

The Bombay High Court noted that Puttaswamy has overruled earlier Supreme Court judgements and other judgements that followed these overruled judgements were no longer valid law.  The judgements overruled were those that had the effect of declaring:-

• that did not consider the right to privacy as a fundamental right (M.P. Sharma v. Satish Chandra); and

• that invasion of privacy is not an infringement of fundamental right guaranteed by Part III of the Constitution (Kharak Singh v. The State of UP & Ors).

In the case at hand, the telephone tapping had been ordered on the premise of protecting the interests of public safety.  Holding that “public safety” had been held in PUCL to mean freedom from danger or risk to the public at large, which would be apparent to a reasonable person, it cannot be lightly argued that public safety has been endangered. Having declared three orders of interception to be illegal, the court went on to pithily declare the law on whether the material gathered through the illegal tapping could be admissible in evidence by holding that if “illegally intercepted messages pursuant to an order having no sanction of law, are permitted to be flouted, we may be breeding contempt for law, that too in matters involving infraction of fundamental right of privacy under Article 21 the Constitution of India.”

If ends can justify the means, the court ruled, it would amount to declaring that government authorities may violate the Supreme Court’s directions or mandatory statutory rules in order to secure evidence against the citizens, leading to manifest arbitrariness.  The court quashed three orders of interception of telephonic communication; ordered the destruction of copies of all intercepted messages and recordings; and indeed, directed that none of the content would form part of the evidence that the trial court conducting certain proceedings could consider.

Phone tapping, not just by the state but even by non-state actors is so rampant in India that large parts of society had not only been dehumanized, but were also prone to celebrate it rather than feel outrage.  That the check and balance of the Review Committee formed due to the PUCL ruling and brought into subordinate law under the Telegraph Act were hardly effective can be seen from the rampant tapping that has become par for the course.

Not too long ago, telephonic conversations of Members of Parliament; industrialists; media and government lobbyists; Union Cabinet ministers; senior bureaucrats including a sitting chairman of a board of taxes; Opposition Leaders, have all been intercepted by State and non-State actors.  The last time a political head rolled due to phone tapping was in 1988 when Ramakrishna Hegde, the Karnataka Chief Minister had to step down for causing about 50 phone lines of dissidents and opponents to be tapped – it was barely a decade after the Emergency. In current times, there may have been empathy for Hegde from political commentators, with opprobrium focused on how he messed up by getting caught.

Against this backdrop, the Bombay High Court’s order, applying Puttaswamy in a real case, comes as a breath of fresh air and a reminder that courts indeed stand up for the Republic’s citizens in upholding the rule of law.

The author is an advocate with focus on regulatory practice