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TMI Blog2019 (10) TMI 1591X X X X Extracts X X X X X X X X Extracts X X X X ..... tate 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 SCC 301] and as provided in Rule 419A(17) introduced by G.S.R. 193 of 1st March, 2007 (w.e.f. 12th March, 2007) The petitioner is also relying on a Nine Judge Constitution Bench judgment in K.S. Puttaswamy v. Union of India [(2017) 10 SCC 1] for seeking enforcement of his fundamental rights under Articles 14 and 21 of the Constitution of India. 2. As per petitioner, the alleged illegally intercepted telephonic recordings contained in the charge-sheet and all material collected on the basis of such alleged illegally intercepted telephonic recordings ought to be set at naught. The petitioner submits that it is settled law that if the foundation is removed, the structure falls and that the legal maxim sublato fundamento cadit opus squarely applies in the instant case. 3. Section 5 of the 1885 Act deals with the power of the Government to take possession of licensed telegraphs and to order interception of messages. Sub-section (2) of Section 5, for our purpose is relevant, which reads as follows: 5.(1) (2) On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers under the said Section. 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 sovereignty and integrity of India etc. In other words, even if the Central Government is satisfied that it is necessary or expedient so to do in the interest of the sovereignty and integrity of India or the security of the State or friendly relations with sovereign States or public order or for preventing incitement to the commission of an offence, it cannot intercept the messages or resort to telephone tapping unless a public emergency has occurred or the interest of public safety or the existence of the interest of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 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(2) of the Act so that the right to privacy of a person is protected. [Emphasis supplied] 5. Pursuant to the above observations, the Hon'ble Supreme Court in PUCL (Supra) was pleased to order and direct inter alia the following as procedural safeguards: 35-We therefore direct as under.... 9. There shall be a Review Committee consisting of Cabinet Secretary, the Law Secretary and the Secretary, Telecommunication at the level of the Central Government. The Review Committee at the State level shall consist of Chief Secretary, Law Secretary and another member, other than the Home Secretary, appointed by the State Government. (a) The Committee shall on its own, within two months of the passing of the order by the authority concerned, investigate whether there is or has been a relevant order under Section 5(2) of the Act. Where there is or has been an order whether there has been any contravention of the provisions of Section 5(2) of the Act. (b) If on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alia directed that there shall be a Review Committee, which shall on its own, within two months of the passing of the order by the authority concerned, investigate, whether there has been any contravention of the provisions of Section 5(2) of the Act. VII. Not only this, the Hon'ble Supreme Court further directed that if on an investigation, the Committee concludes that there has been a contravention of the provisions of Section 5(2) of the Act, it shall set-aside the order under scrutiny of the committee, and shall further direct the destruction of the copies of the intercepted material. VIII. The Hon'ble Supreme Court further directed that if on investigation, the Committee comes to the conclusion that there has been no contravention of the provisions of Section 5(2) of the Act, it shall record the finding to that effect. 7. These directions not only forge procedural safeguards into the matters of infringement of right to privacy, but also provide for a just and reasonable procedure. These directions also provide procedural guarantee against the abuse of any illegal interference by the guaranteed destruction of the copies of the intercepted material, in a case where pre-r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an interpretative tool for construing the provisions of the Constitution. Article 21. in the view of the Court, has to be interpreted in conformity with international law. In the absence of rules providing for the precautions to be adopted for preventing improper interception and/or disclosure of messages, the fundamental rights under Articles 19(1)(a) and 21 could not be safeguarded. But the Court was not inclined to require prior judicial scrutiny before intercepting telephone conversations. The Court ruled that it would be necessary to lay down procedural safeguards for the protection of the right to privacy of a person until Parliament intervened by framing rules under Section 7 of the Telegraph Act. The Court accordingly framed guidelines to be adopted in all cases envisaging telephone tapping. 70. The need to read the fundamental constitutional guarantees with a purpose illuminated by India's commitment to the international regime of human rights' protection also weighed in the decision. Section 5(2) of the Telegraph Act was to be regulated by rules framed by the Government to render the modalities of telephone tapping fair, just and reasonable under Article 21. The i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the early decisions of this Court following Kharak Singh was R.M. Malkani v. State of Maharashtra. In that case, this Court held that Section 25 of the Indian Telegraph Act, 1885 was not violated because:(R.M. Malkani Case, SCC p. 476, para 20) 20. Where a person talking on the telephone allows another person to record it or to hear it, it cannot be said that the other person who is allowed to do so is damaging, removing, tampering, touching machinery battery line or post for intercepting or acquainting himself with the contents of any message. There was no element of coercion or compulsion in attaching the tape recorder to the telephone. This Court followed the same line of reasoning as it had in Kharak Singh while rejecting a privacy based challenge under Article 21. Significantly, the Court observed that: (R.M. Malkani Case, SCC p. 479, para 31) 31. Article 21 was invoked by submitting that the privacy of the appellant's conversation was invaded. Article 21 contemplates procedure established by law with regard to deprivation of life or personal liberty. The telephone conversation of an innocent citizen will be protected by Courts against wrongful or high handed interferenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ective of the correct position. Similarly, Kharak Singh's reliance upon the decision of the majority in Gopalan is not reflective of the correct position in view of the decisions in Cooper and in Maneka. Kharak Singh to the extent that it holds that the right to privacy is not protected under the Indian Constitution is overruled. 325. Like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 21, privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. The law must also be valid with reference to the encroachment on life and personal liberty under Article 21. An invasion of life or personal liberty must meet the three-fold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate state aim; and (iii) proportionality which ensures a rational nexus between the objects and the means ado ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right to privacy has multiple facets, and, therefore, the same has to go through a process of case-to-case development as and when any citizen raises his grievance complaining of infringement of his alleged right in accordance with law . 578. It is not India alone, but the world that recognises the right of privacy as a basic human right. The Universal Declaration of Human Rights to which India is a signatory, recognises privacy as an international human right. The importance of this right to privacy cannot be diluted and the significance of this is that the legal conundrum was debated and is to be settled in the present reference by a nine-Judges Constitution Bench. Test: Principle of proportionality and legitimacy 638. The concerns expressed on behalf of the petitioners arising from the possibility of the State infringing the right to privacy can be met by the test suggested for limiting the discretion of the State: (i) The action must be sanctioned by law; (ii) The proposed action must be necessary in a democratic society for a legitimate aim; (iii) The extent of such interference must be proportionate to the need for such interference; (iv) There must be procedural guarantees a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of infraction of the fundamental right to privacy would now have to necessarily satisfy the aforesaid tests, and cannot be dealt with on the basis of the overruled judgments in M.P. Sharma (supra) or Kharak Singh (supra) or based thereon or on the same line of reasoning like R.M. Malkani (supra). 13. It is at this stage, it is pertinent to note that directions contained in PUCL (supra) are in consonance with the aforesaid 4 tests. 14. After the judgment in PUCL (supra) and before the judgment in K.S. Puttaswamy (supra), Rules were also framed by the Central Government. Relevant Rules introduced by G.S.R. 193(4) dated 1st March, 2007 (w.e.f. 12th March, 2007) read as follows: 419. Interception or monitoring of telephone messages.-(1) It shall be lawful for the Telegraph Authority to monitor or intercept a message or messages transmitted through telephone, for the purpose of verification of any violation of these rule or for the maintenance of the equipment. 419-A.......... (2) Any order issued by the competent authority under sub-rule (1) shall contain reasons for such direction and a copy of such order shall be forwarded to the concerned Review Committee within a period of seven wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... safety demands, the authorities have no jurisdiction to exercise the powers under the said section. The expression Public Safety as held in PUCL (supra) 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. 17. The Hon'ble Supreme Court in PUCL case (supra) 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. 18. Even at this stage, from the affidavits filed by the Respondents or the charge-sheet, the Respondents 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. Neither from the impugned orders nor from the record any situation showing interest of public safety is borne out. 19. We are satisfied that 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has filed the Miscellaneous Applications before this Hon'ble Court for providing certified copy of the prior approval of the review committee under Rule 419(A) of Indian Telegraph Rule, 1951. 4. That, the said approvals under Rule 419(A) of the Indian Telegraph Rule, 1951 has been filed along with the charge sheet filed before this Hon'ble Court vide Dd-4, D-5 and D-6 and the same has been supplied to all the accused persons along with the charge sheet. 24. In its additional reply dated 29th August 2016, the CBI has further contended as under: 5. It is humbly submitted that, the sanction issued by the Home Secretary Government of India under Telegraph Rule 1951 for intercepting the Call Data will be reviewed once in 2 months after the approval by the Review Committee of Telegraph Authority and the approval granted by the Home Secretary will be reviewed and if the said approval is in accordance and no discrepancies are found, Review Committee will not issue any orders. And if the approval is given by the Home Secretary and not in accordance and if any discrepancies are found, then the Review Committee shall issue the orders to the Home Secretary, Government of India. 6. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also claim that three interception orders dated 29.10.2009, 18.12.2009 and 24.2.2010 are 3 different orders and are not continuation of the earlier order. This action of issuing successive orders or repeated orders under sub- rule (1) of Rule 419(A) by the competent authority without making a reference to the review committee within 7 working days and/or there being scrutiny by the review committee under sub-rule (17) of Rule 419(A) is in clear breach of the statute, Rules and the Constitution of India. All three impugned orders in the instant case bear the same number and ex-facie appears to have been issued in the similar manner before the expiry of period of earlier order. The 1st order dated 29th October 2009 is valid for 60 days. Before the expiry thereof, order dated 18th December 2009 is issued for further period of 60 days. And before the expiry of this second order, third order dated 24th February 2010 is issued for further period of 60 days. There is no record produced to show that the compliance of Rules. This is wholly impermissible and in violation of the directions issued by the supreme Court in PUCL's case (supra), which stand affirmed by the constitution bench j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and order for destruction of the copies of the intercepted message. The fact that the consequences of non-compliance of the procedure prescribed under Rule 419-A are also provided under the same Rule further makes clear the intention of the Legislature to make the said procedure mandatory. Hence, the non-compliance of the procedure under Rule 419-A is undoubtedly fatal. 37. At any rate, since the impugned order is also in contravention of the substantive law as laid down in Sub-section (2) of Section 5 of the Act and is declared illegal, the consequential action of the respondents 2 and 3 in intercepting the mobile telephone of the petitioner is automatically rendered unauthorised. Hence, whatever information is obtained pursuant to the order dated 17-11-2003 cannot be taken into consideration for any purpose whatsoever. 38. For the reasons stated above, the Writ Petition is allowed declaring the impugned order dated 17-11-2003 as illegal and void and consequently directing that the copies of the intercepted messages pursuant to the said order shall be destroyed. No costs. We are in complete agreement with the view taken by the Andhra Pradesh High Court which considers the rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be satisfied or there was complete lack of jurisdiction under section 5(2) of the Act as in the instant case. Moreover, the said judgment is only prior to decision in K.T. Puttaswamy (supra). It in paragraph 154, it relies on R.M. Malkhani (supra) which as noticed in paragraph 51, K.T. Puttaswamy (supra) followed the same line of reasoning as in Kharak Singh (supra) while rejecting the privacy based challenge under Article 21 of the constitution of India, which now stands overruled. 36. Poorn Mal (supra) is a decision where the facts and issues were not similar to the instant case. Here the action of the executive is in breach of the fundamental rights under Article 21 of the Constitution of India as also directions of the Supreme Court in PUCL's case (supra), in that case there was no direction or provision which could mandate the destruction of record in the absence of valid order. No case of any infraction of Article 21 of the Constitution of India was raised. That apart, Pooran Mal (supra) inter alia follows M.P. Sharma (supra) and majority opinion in A.K. Gopalan v. State of Madras [(1950) SCR 88] which today stand overruled. The following paragraphs from Pooran Mal ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction. Nor is it legitimate to assume that the constitutional protection under article 20(3) would be defeated by the statutory provisions for searches. It, therefore, follows that neither by invoking the spirit of our Constitution nor by a strained construction of any of the fundamental rights can we spell out the exclusion of evidence obtained on an illegal search. 37. Even the judgment of Hon'ble Supreme Court in Umesh Kumar v. State of UP [(2013) 10 SCC 591]. in paragraph 35 refers to and relies upon R.M. Malkhani, Pooran Mal and Navjot Sandhu (supra), which are already discussed hereinabove. Moreover, the said cases are distinguishable from the facts of the instant case. We are also bound by the judicial discipline which requires that we should follow the latter decision of greater strength bench in preference to the lesser strength bench decision. 38. Further in Hussein Ghadially v. State of Gujarat [(2014) 8 SCC 425] for non co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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