2019 (10) TMI 1591 - HC - Indian Laws

Interception of telephone calls - destruction of intercepted messages - ultra vires of Section 5(2) of the Indian Telegraph Act 1885 - non-compliance of Rules made thereunder and for being in violation of the fundamental rights guaranteed under Part-III of the Constitution of India - Applicability of legal maxim sublato fundamento cadit opus meaning The foundation being removed the structure falls. HELD THAT - As per Section 5(2) of the Act an order for interception can be issued on either the occurrence of any public emergency or in the interest of the public safety. The impugned three interception orders were issued allegedly for the reason of public safety . As held in PUCL 1996 (12) TMI 400 - SUPREME COURT unless a public emergency has occurred or the interest of public safety demands the authorities have no jurisdiction to exercise the powers under the said section. The expression Public Safety as held in PUCL means the state or condition of freedom from danger or risk for the people at large. When either of two conditions are not in existence it was impermissible to take resort to telephone tapping. he Hon ble Supreme Court in PUCL case has observed that neither the occurrence of public emergency nor the interest of public safety are secretive conditions or situations. Either of the situations would be apparent to the reasonable person. In peculiar fact of the instant case the impugned three interception orders neither have sanction of law nor issued for legitimate aim as sought to be suggested. The impugned three interception orders could not satisfy the test of Principles of proportionality and legitimacy as laid down by the nine judges constitution bench decision in K.T. Puttaswamy 2017 (8) TMI 938 - SUPREME COURT - there are no hesitation in holding that all three impugned orders are liable to be set aside. Whether any directions for destroying the intercepted messages are warranted in a particular case or the instant case? - HELD THAT - There is no scope to presume that aforesaid directions are not mandatory. It is an admitted position that Rule 419(A)(17) which provides for destruction of intercepted messages also adopt the said directions. The Respondents are not permitted to continue to ignore the directions of the Hon ble Apex Court nor can the same is ignored. Having held that the impugned interception orders have been issued in contravention of the provisions of section 5(2) of the Act there are no option but to further direct the destruction of intercepted messages. The findings of review committee would be either directions being in accordance with the provisions or not. If findings are in favour of the directions i.e. if the directions conform to the requirements of provisions no further step is contemplated. However if the findings are that directions are not in accordance with the provisions then Rule 419(A)(17) further provides for setting aside the directions and orders for destruction of the copies of intercepted messages or class of messages. Thus orders for destruction are contemplated in Rule 419(A)(17) if and only if the directions so issued under rule 419(A)(1) for interception are ultra vires of section 5(2). Significantly the destruction of record (i.e. copies of the intercepted messages and or class of messages) is mandatorily coupled with setting aside the directions for interceptions. The three interception orders dated 29th October 2009 18th December 2009 and 24th February 2010 set aside - the destruction of copies of intercepted messages/recordings directed.

Summary

Issues Involved:
1. Legality of interception orders
2. Compliance with procedural safeguards under Section 5(2) of the Indian Telegraph Act, 1885
3. Violation of fundamental rights under Articles 14 and 21 of the Constitution of India
4. Destruction of intercepted messages

Detailed Analysis:

1. Legality of Interception Orders:
The petitioner challenged the orders dated 29th October 2009, 18th December 2009, and 24th February 2010, directing the interception of telephone calls. The petitioner argued that these orders were ultra vires of Section 5(2) of the Indian Telegraph Act, 1885, and violated fundamental rights guaranteed under Part-III of the Constitution of India. The court noted that Section 5(2) allows interception only on the occurrence of a public emergency or in the interest of public safety, which were not justified in this case.

2. Compliance with Procedural Safeguards:
The court referred to the Supreme Court's decision in PUCL v. Union of India, which mandated procedural safeguards for intercepting telephone conversations. The safeguards include the necessity of a Review Committee to investigate the validity of interception orders. The court found that the impugned orders did not comply with these procedural safeguards, as there was no evidence of a public emergency or public safety risk, and the Review Committee's approval was not obtained.

3. Violation of Fundamental Rights:
The court held that the right to privacy includes the right to hold a telephone conversation without interference, as established in PUCL and reinforced by the nine-judge bench in K.S. Puttaswamy v. Union of India. The court found that the interception orders violated the petitioner's fundamental rights under Articles 14 and 21 of the Constitution. The court emphasized that any infringement of the right to privacy must meet the tests of legality, necessity, proportionality, and procedural guarantees against abuse.

4. Destruction of Intercepted Messages:
The court directed the destruction of the intercepted messages, as mandated by the Supreme Court in PUCL. The court noted that the Review Committee must set aside any interception orders found to be in contravention of Section 5(2) and direct the destruction of the intercepted material. The court found that the respondents had destroyed the records purportedly under Rule 419A(18), which mandates the destruction of records not in accordance with Section 5(2).

Conclusion:
The court quashed the interception orders dated 29th October 2009, 18th December 2009, and 24th February 2010, and directed the destruction of the intercepted messages. The court emphasized that the procedural safeguards and the right to privacy must be upheld, and any violation of these rights must be addressed by setting aside the illegal orders and destroying the intercepted material. The petitioner was granted the liberty to seek other legal remedies for the reliefs sought in the writ petition.