Constitutionality of Phone Tapping

By - Pooja (Faculty of Law, 2nd Year)

Constitutionality of Phone Tapping


In the recent times technology has become the part and parcel of our lives. The world has transformed into a global village where our lives have become more connected than ever. It is quite obvious that with the development of social media and sophisticated technology our lives have become less private. Hence it became more important than ever to secure the privacy of individuals.
The Constitution of India provides its citizens the Right to Privacy under the scope of Article 21.

The Article 21 of the Indian Constitution states that ‘No person shall be deprived of his life or personal liberty except according to the procedure established by law.’’ Life here includes all those aspects which makes a man’s life meaningful, complete and worth living. Privacy of a person is a part of his life and liberty under our Constitution. Any invasion of this right, which is fundamental in nature, can be done only according to the constitutional limitations only.

India is also a signatory to the International Covenant on Civil and Political Rights, 1966. Article 17 of the said covenant states that:

  1. No one shall be subject to arbitrary or unlawful interference with his privacy, family, human or correspondence, nor to lawful attacks on his honor and reputation.
  2. Every one has the right to the protection of the law against such interference or attacks

In People’s Union of Civil Liberties (PUCL) vs. Union of India (UOI) and Anr. (18.12.1996 – SC) the honourable judge of the Supreme Court Mr. Kuldip Singh stated that “With the growth of highly sophisticated communication technology, the right to hold telephone conversation, in the privacy of one’s home or office without interference, is increasingly susceptible to abuse. It is undoubtly correct that every Government, howsoever democratic, exercises some degree operation as a part of its intelligence out-fit but at the same time citizen’s right to privacy has to be protected from being abused by the authorities of the day.”

In this case the petitioner challenged constitutional validity of Section 5 (2) or inalternative contended that said provisions be suitably read down to include procedural safeguards to rule out arbitrariness and to prevent indiscriminate telephone tapping. Section 5 (2) provided that:

“ On the occurrence of any public emergency, or in the interest of public safety, the Central Government or a State Government or any Officer specially authorized in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in 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, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order.

Provided that press messages intended to be published in India of correspondents accredited to the Central Government or State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section.”

The petitioner insisted that rules required to be framed under Section 7 (2) (b) for providing procedural safeguards. It was further contended that the Act laid down situations when such power can be exercised but manner in which such power is to be exercised was not provided in the Act. The right to privacy is part of right to “life” and “personal liberty” enshrined under Article 21 and telephone-tapping unless comes within reasonable restrictions under Article 19 (2) is infringement of right to freedom of speech and expression contained in Article (1) (a). Hence, to protect right to privacy of people it is necessary to lay down procedural safeguards

The Supreme Court declared that:

An order for telephone tapping in terms of Section 5(2) of the Act shall not be issued except by the Home Secretary, Government of India and Home Secretaries of the State Governments. In an urgent case the power may be delegated to an officer of the Home Department of the Government of India and the State Governments not below the rank of Joint Secretary. Copy of the order shall be sent to the Review Committee concerned within one week of the passing of the order.

The Review Committee consisting of Cabinet Secretary, the Law Secretary and the Secretary, Telecommunication at the level of the Central Government and Chief Secretary, Law Secretary and another member, other than the Home Secretary, appointed by the State Government at the State level.

  • 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.
  • 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. It shall further direct the destruction of the copies of the intercepted material.
  • 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.

In Amar Singh vs. Union of India (UOI) and Ors a writ petition was filed under Article 32 by the Petitioner to protect his fundamental right to privacy under Article 21 of the Constitution of India. The Petitioner’s case was that on the basis of his information from various sources, he had learnt that the Government of India and the Government of National Capital Region of Delhi had been intercepting his conversation on phone, monitoring them and recording them. Such interception of conversation, according to the Petitioner, amounts to intrusion on the privacy of the affected people, and is motivated by political ill will and has been directed only towards those who are not aligned with the political party in power at the Centre. He submitted that this infringement of his fundamental rights was symptomatic of the erosion of the democratic values in the country. He prayed that the Court may declare the orders for interception unconstitutional and therefore void, and initiate a judicial inquiry into the issuance and execution of these orders, and prayed that damages be awarded to him. In the course of the hearing, by filing an interlocutory application the Petitioner also submitted that the recordings of the said conversations had been made available to some journalists/news agencies. However, the court found many discrepancies in the petitioner’s case. It appeared that the Petitioner had been shifting his stand to suit his convenience. The Supreme Court upholding the principle of ‘satya’ dismissed the writ petition.

It is important to note that the right to privacy by itself has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case.

In 2011 the Jan Lokpal demanded that Lokpal be made an independent agency with independent powers of phone tapping. It suggested that there shall be an appropriate bench under section 5 of Indian Telegraph Act empowered to approve the interception and monitoring of data transmitted through telephone or internet or any other medium covered under ITA. However, the Standing Committee on Personnel/Public Grievances, Law and Justice rejected this demand. It was feared that this would increase surveillance as well as further undermine the right to privacy.

With our lives becoming less and less private by each day the Government has pitched in to make stringent laws that govern the Act of phone tapping. While there is no denying of the fact that a person has full right to privacy and what they talk or share on their phones is a matter of personal choice,the law has been made to mould privacy and security together. There is also a growing opinion both in India and abroad that supports telephone tapping and describes it as a necessary evil basically due to the emergence of terrorism on a global scale. Most nations enact tough anti-terror legislations like the PATRIOT Act in the USA and the Indian POTA. Governments feel that this is the most effective method to combat the menace of terrorism and citizens are asked to forego some of their liberties in the interest of the well being of the nation.