Surveillance in the Post-Puttaswamy Era - Right to Privacy

In 1997, the Supreme Court of India (Supreme Court) pronounced its judgment in the case of People’s Union for Civil Liberties (PUCL) v. Union of India (SC, 1997) (PUCL Case), which laid the groundwork for the right to privacy in the context of telephonic surveillance (i.e. wiretaps) and constitutional freedoms.

This article analyses the Supreme Court’s stance on the right to privacy in the PUCL Case, which was upheld in the 2017 landmark judgment by the nine-judge bench in KS Puttaswamy v. Union of India (SC, 2017) (Puttaswamy Case) that declared privacy a fundamental right. The applicability of the right to privacy has recently received further validation in the context of wiretaps in the October 2019 judgment in Vinit Kumar v. Central Bureau of Investigations and Ors (Bom HC, 2019) (Vinit Kumar Case), wherein the Bombay High Court outlined the ambit of the State’s power to surveil its subjects particularly on matters that do not fall within the category of ‘public emergency’ or ‘in the interest of public safety’.

Background

To set things in context, it is worth referencing the constitutional history of the ‘right to privacy’.

Prior to 2017, the Supreme Court’s view on right to privacy in India was somewhat ambivalent. In M.P Sharma v. Union of India (SC, 1954) an eight-judge bench of the Supreme Court held that there is no right to privacy enshrined within the Constitution of India. The same view was given by a constitutional bench of six judges in Kharak Singh (SC, 1963).

However, there were decisions of smaller benches of the Supreme Court, such as, Gobind Sharma v. Union of India (SC, 1975) and  R. Rajagopal v. Union of India (SC, 1994), in which the right to privacy has been held to be a constitutionally protected fundamental right and it was in this milieu that the PUCL Case bears relevance.

Wiretapping and the PUCL Case

In 1990, Mr. Chandra Shekhar alleged that the Government was illegally tapping telephones of 27 politicians, including his own[1]. Subsequently, an investigation of the Central Bureau of Investigation (CBI) revealed widespread wiretapping undertaken by the Government. The matter reached the Supreme Court through a public interest petition filed by the People’s Union for Civil Liberties.

The impugned legislation in the PUCL Case was section 5(2) of the Indian Telegraph Act, 1885 (IT Act), which permits interception on the occurrence of a public emergency, or in the interest of public safety.

The Supreme Court, while rejecting the argument that the said provision is ultra-vires the Constitution of India, held that the two statutory pre-conditions, namely, the occurrence of any ‘public emergency’ or in the ‘interest of public safety’, have to be satisfied. Since the terms hadn’t been defined under the IT Act, the Supreme Court interpreted them to mean “the prevalence of a sudden condition or state of affairs affecting the people at large calling for immediate action”, and “the state or condition of freedom from danger or risk for the people at large”, respectively.

Insofar as wiretaps and their infringement of constitutional rights were concerned, the Supreme Court laid down the following touchstones:

  1. The right to privacy “is a part of the right to ‘life’ and ‘personal liberty’ enshrined under Art. 21 of the Constitution”.
  2. The right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as “right to privacy” since telephonic conversations are often of an intimate and confidential nature.
  3. Any right enshrined under Art. 21 cannot be curtailed except according to the procedure established by law, which has to be just, fair and reasonable[2] – the Supreme Court went on to issue guidelines to curb administrative overreach.

Following the judgment, the guidelines were codified in Rule 419(A) of the Indian Telegraph Rules, 1951 in 2007. As per Rule 419(A), a direction for interception under Section 5(2) may be issued only by the Union Home Secretary at the Centre, or the State Home Secretary or in unavoidable circumstances, by another authorised officer.

Given the legal framework established by the PUCL Case and subsequent to the codification of the guidelines, one may think that the issue of illegal wiretapping was significantly curbed if not altogether dealt with. However, that doesn’t seem to have been the case.

Time and again there has been alleged arbitrary use of the power of surveillance. For instance, the Radia tapes controversy in 2009, followed by the 2012 scandal – where a change of Government in Himachal Pradesh, brought to light that the previous Government had targeted 1,371 telephone numbers for tapping and recording, with prior approval by the State’s Home Secretary for only two telephone numbers, and lastly, the 2019 phone-tapping scandal involving the State Government of Karnataka.

Right to Privacy: The Puttaswamy Case

In August 2017, a nine judge bench of the Supreme Court in the Puttaswamy Case gave legitimacy to the ‘right to privacy’ under the Constitution of India and overruled the M.P Sharma case and the Kharak Singh case in relation to the guarantee of the right to privacy under the Constitution, and, therefore, made its derogation subject to the highest level of judicial scrutiny.

Premised on the principle that “Privacy is the ultimate expression of the sanctity of the individual”, the Supreme Court affirmed the reasoning and judgment given in the PUCL Case and held that:

  1. The violation of privacy with regard to arbitrary state action would be subject to the “reasonableness” test under Art. 14.
  2. Privacy invasions that implicate Art. 19 freedoms would have to fall under the restrictions of public order, obscenity etc.
  3. Intrusion of one’s life and personal liberty under Art. 21 will attract the just, fair and reasonable threshold.
  4. Phone tapping not only infringes Art. 21 but also contravenes Art. 19 freedoms. Such a law would have to be justifiable under one of the permissible restrictions in Article 19(2), in addition to being “fair, just and reasonable” as required by Article 21, and as was held in the PUCL Case. It would also need to be subject to a higher threshold of “compelling state interest”.
  5. The ‘proportionality and legitimacy’ test was also established – which is a four-fold test that needs to be fulfilled before state intervention in the right to privacy:i. The state action must be sanctioned by law.
    ii. In a democratic society there must be a legitimate aim for action.
    iii. Action must be proportionate to the need for such interference.
    iv. And it must be subject to procedural guarantees against abuse of the power to interfere.

Vinit Kumar Case and Its Relevance

The Bombay High Court (High Court) in 2019 was presented with the opportunity to adjudicate upon the law pertaining to phone tapping and surveillance in the post-Puttaswamy era, applying the principles in relation to the right to privacy to section 5(2) of the IT Act.

In this case, a businessman who was alleged to have given bribes to bank employees to avail himself of credit, challenged certain CBI orders that directed interception of his telephone calls on the grounds that such orders were ultra-vires of section 5(2) of the IT Act.

At the outset, the High Court reiterated that an order for interception as per Section 5(2) of the IT Act, can be issued only in two circumstances: public emergency or public safety. The impugned orders were given on the basis of ‘public safety’.

The Supreme Court in an earlier case dealing with section 5(1) of the IT Act has held that the precursors of “public emergency” and “interest of public safety” to an order of interception are to be read as a whole and take colour from each other. Further, it held “public emergency” to include the interest of public safety, the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, or the prevention of incitement to the commission of an offence. Further, the Supreme Court has also recognised that economic emergency does not qualify as “public emergency”[3] and, therefore, interception for economic offences, which do not meet the very high threshold of “public emergency” or “public safety”, are not permissible under the law.

Drawing from these settled positions, and  since this related to an economic offence, the High Court was of the opinion that there is no apparent public safety interest to substantiate the said Orders or satisfy the test of “principles of proportionality and legitimacy” as laid down in the Puttaswamy Case.

To summarise, the High Court in the Vinit Kumar Case, in the question of interception, held:

  1. An order of interception under section 5(2) of the IT Act can only be given in situations of ‘public emergency’ or ‘public safety’.
  2. If interception has been undertaken in contravention of Section 5(2) of the IT Act, it is mandatory for the said intercepted messages to be destroyed.
  3. Evidence procured in violation of Section 5(2) and the rules made thereunder, is not admissible in court.

The key takeaways are that for an interception under section 5(2) of the IT Act, the high threshold of “public emergency” and/or “public safety” need to be met and compliance with the rules and guidelines made thereunder are mandatory. Even a slight deviation from the process will lead to the evidence being inadmissible in court.

The Vinit Kumar Case is useful in according protection to fundamental rights and making sure that the power of phone surveillance is not misused by authorities to target specific persons for economic offences or without following the procedure established by law. It does appear that this is a judgment whose relevance will be tested over and over again in the troubled times we live in.


[1] India Today, Scandalous Revelations: Secret Report by CBI contains shocking details of phone tapping ordered by Congress (I) Govts, February 28, 1991, available at http://indiatoday. intoday.in/story/secret-report-by-cbi-contains-shocking-details-of-phone-tapping-orderedby-congressi-govts/1/317946.html  (Last visited on May 24, 2014).

[2] Chaitanya Ramachandran, “PUCL v. Union of India Revisited: Why India’s Surveillance Law Must Be Redesigned For The Digital Age”, Manupatra. Available on: http://docs.manupatra.in/newsline/articles/Upload/E90FA90F-0328-49F2-B03F-B9FBA473964F.pdf 

[3] Hukum Chand Shyam Lal v. Union of India, AIR 1976 SC 789

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Partner in the  General Corporate and TMT Practice at the Mumbai office of Cyril Amarchand Managaldas. Bharat has over 30 years of experience at senior management level. His areas of specialization includes company law, corporate and commercial laws, securities law, capital market, mergers…

Partner in the  General Corporate and TMT Practice at the Mumbai office of Cyril Amarchand Managaldas. Bharat has over 30 years of experience at senior management level. His areas of specialization includes company law, corporate and commercial laws, securities law, capital market, mergers and acquisitions, joint ventures, media & entertainment law, competition law, employment law and property matters. He heads firm’s media and entertainment law practice.  He is highly regarded in Government circles and in various industry organizations for his proactive approach on public policy issues. Bharat was a member of the Expert Committee appointed by the Government of India to revise the Companies Act, 2013.

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