People’s Union for Civil Liberties (PUCL)

vs UOI [AIR (1997) 1 SCC 301 ]

Petitioner: PUCL

Respondent: Union of India

Judges: J.K Singh & S. S Ahmed

Date of Judgement:

Subject: Wiretapping as an infringement to an individual’s ‘Right to Privacy’

Relevant Provisions:
● Section 5(2) - Indian Telegraph Act, 1885
● Constitution of India -
Article 19 (1) (a) - to freedom of speech and expression;
Article 19 (2)
Article 21 (Protection of life and personal liberty) - No person shall be deprived of his
life or personal liberty except according to procedure established by law.

Facts:

In 1990, Chandra Shekhar alleged that the Government was illegally tapping the telephones of
27 politicians, including his own. Subsequently, a CBI investigation 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 Petitioner i.e. PUCL, a voluntary organization, filed a public interest petition challenging the
constitutional validity of Section 5(2) of the Act, which allowed the Central Government or the
State Government, during a public emergency or for public safety, to intercept messages if
satisfied that it is necessary or expedient so to do on various grounds including the sovereignty
and integrity of India, friendly relations with foreign states and public order. The Petitioner
challenged this section claiming it violated individuals’ right to privacy in the wake of a report
published by the Central Bureau of Investigations on “Tapping of Politicians' Phones”.

The following MTNL blunders were discovered throughout the investigation. Although
authorization letters from various authorized agencies were available for 279 telephone lines,
these numbers were not included in MTNL’s list of telephone interceptions for the corresponding
period. This demonstrates that the lists provided were incomplete.
Investigations have also found that numerous authorized agencies are not properly storing
information related to telephone interception. Even the interception logbooks aren’t kept up to
date by one agency. The grounds for retaining a phone number on the watch list have also been
neglected.

The right to privacy of citizens must be safeguarded against government abuse. As a result, this
writ petition was filed under Article 32 of the Constitution, alleging that the State abuses its
power over an individual and those police authorities repeatedly violate the Constitution’s
fundamental rights.

Issue:

1. Whether Section 5(2) of the Act was used to violate the fundamental right to privacy.
2. Whether there was a requirement to revise Section 5(2) of the Act to include procedural
safeguards in order to preclude arbitrariness and prevent indiscriminate phone tapping.

Judgment:
The Court placed reliance on the judgments in Kharak Singh vs. State of U.P. & Ors. (AIR 1963
SC 1295), Gobind vs. State of MP & Anr. (AIR 1975 SC 1378) and R. Rajgopal vs. State of TN
(AIR 1995 SC 264) and noted that though the Indian Constitution did not expressly provide for a
right to privacy, the right was a part of the right to "life" and "personal liberty" under Article 21
which could not be curtailed "except according to procedure established by law". It held that only
a case-by-case inquiry would reveal whether the right had been infringed.

The Court observed that “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’” and held that
telephone tapping would violate Article 21 unless it was permitted under a “procedure
established by law”. The Court also stated that telephone conversations were an exercise of a
citizen’s right to freedom of speech and expression under Article 19(1)(a) and hence
interception of these conversations must be a reasonable restriction under Article 19(2) of the
Constitution.

The Court reviewed the report of the Second Press Commission which stated that “tapping of
telephones was a serious invasion of the right to privacy. It is a variety of technological
eavesdropping.” and that the “relevant Statute i.e., Indian Telegraph Act, 1885, a piece of
ancient legislation, does not concern itself with tapping”. Moreover, the report stated that
“tapping cannot be regarded as a tort because the law as it stands today does not know of any
general right to privacy” and recommended that telephones may not be tapped except in the
interest of national security, public order, investigation of crime and similar objectives.

The Court analyzed Section 5(2) and noted that the provision clearly laid down conditions under
which interception orders could be given. The first step under this provision was to satisfy two
prerequisites, i.e. ‘occurrence of any public emergency’ or in ‘the interest of public safety’. The
officer authorized by the Government had to be satisfied that it was “necessary or expedient” in
the interest of five grounds enumerated under this section:

1. Sovereignty and integrity of India;

2. Security of the State;
3. Friendly relations with foreign States;
4. Public order; or
5. Preventing incitement to the commission of an offense.

Moreover, the officer was empowered to issue the order for interception only after recording the
reasons in writing. After making these observations, the Court refused to declare Section 5(2)
unconstitutional, though it emphasized the need to strictly follow the two statutory prerequisites
and the five grounds enumerated under Section 5(2).

Further, the Court refused to accept the Petitioner’s submission regarding the imposition of prior
judicial scrutiny as the only procedural safeguard before passing of interception orders. It
reasoned that the power to make rules in this regard rests with the Central Government under
Section 7 of the Act and censured the government for not framing proper laws despite the
severe criticism attracted by Section 5(2). However, the Court decided to lay down guidelines in
the interim period in order to rule out arbitrariness and to protect the right to privacy.

The guidelines laid down broadly entailed the following –

1. Orders for telephone tapping could be issued by the Home Secretary of the Central
Government or a State Government, and this power could be delegated only in an
emergency;
2. The authority making the interception order must consider whether it was necessary to
obtain the information required through such orders;
3. The interception order, unless renewed, would cease to be effective after two months
from the date of issue, and limit the total period of the operation of the order to six
months;
4. Detailed records were to be maintained of the intercepted communication and the
procedure followed;
5. The use of intercepted material was limited to the minimum necessary for the purposes
under the Act, and intercepted material would be destroyed when retention became
unnecessary; and
6. Review committees should be constituted at the Central and State levels to assess
compliance with the law.

Obiter Dicta: The right to privacy is an important concept and should be dealt with through
specific legislation.

Analysis:
The right to privacy is an element of the right to “life” and “personal liberty” guaranteed by Article
21 of the Constitution, according to the Court. In every scenario involving the right to privacy,
Article 21 is invoked, and this right cannot be reduced unless the procedure prescribed by law is
followed.

In this case, it was concluded that Telephone-Tapping is considered an infringement of the

fundamental right to privacy. This case 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 versus Union of India (SC, 2017) that declared privacy is 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 versus Central Bureau
of Investigations and Ors (Bom HC, 2019), 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’.

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 for
only two telephone numbers.

Privacy in the modern context is more about privacy in electronic communications and the
ensuing personal data generated through such activities. The Personal Data Protection Bill,
2019 aims to localize the data processing activities of the internet platforms, which is akin to the
GDPR law in Europe. A concept of ‘data fiduciary’ has emerged from this bill. The data fiduciary
is the one who collects the data (like Google). It needs to establish why it is necessary to collect
someone’s personal data (for example – enabling the person to sign up for an online service).
The fiduciary needs to maintain transparency and the necessary encryption systems to protect
personal data.

Above all, the end-user has the right to know whether her data has been processed or not.
Some of the lawmakers have objected to some parts of the bill as well, the nature of which will
be cleared in the coming years.

With the growing technology and the technicalities of the application, it has become easier to
infringe on someone’s privacy. In this IT era, we all have our own mobile phones and the
internet contains all our information. There are so many applications that have been developed
to access anyone at any time. But are they safe, or does someone have the access to all the
information shared on WhatsApp, Instagram, Facebook, etc? The answer is not really. Our
information can be intercepted by the government of India or the home secretary or by the state
and sometimes also by hackers who can harm us by misleading our information. To protect our
privacy, in the above judgment, the Supreme Court prescribed all these rules in which the court
denied the officials to acquire data on unnecessary grounds. The application also has the
access to our data whose access was given to them by us. So it’s our responsibility also to
check the privacy terms of the app and then give access. It is common knowledge that everyone
should understand if someone doesn’t want another person to know that what he/she has talked
about to a third person it’s his/her right to privacy given by the constitution of India under Article
21. It states that “No person shall be deprived of his life or personal liberty except according to
procedure established by law”. So no one is allowed to infringe it as it will be considered as
going against our constitution.
We cannot say that giving access is wrong. This right to access can help government officials to
protect the country from any attack that has been planned through a mobile phone. It can also
help to track drug dealers and peddlers as the conversation takes place through these
intermediaries.