Madras HC strikes down MHA’s phone tap order, says law does not permit tapping for secret crime probes

The court made it clear that the state’s justification for surveillance — the need to detect corruption — did not meet the legal threshold required to invade an individual’s privacy through phone tapping. “In the instant case, the impugned (under challenge) order does not fall either within the ambit of public emergency or the interest of public safety as explained by the Supreme Court in PUCL case,” Justice Venkatesh wrote, referring to the 1997 People’s Union for Civil Liberties v. Union of India verdict, which laid down detailed guidelines for lawful phone interception.

The judge noted that the right to privacy, once seen as nebulous and secondary, had evolved into a fundamental right since the 2017 nine-judge bench ruling in K S Puttaswamy v. Union of India.

“The facts of the case disclose that it was a covert operation or a secretive situation for detection of a crime which would not be apparent to any reasonable person. As the law presently stands, a situation of this nature does not fall within the four corners of Section 5(2) of the Act as expounded by the Supreme Court in PUCL which has been approved by the Constitution Bench of the Supreme Court in K S Puttuswamy’s case,” the judge wrote.

The court laid out the conditions under which phone tapping can be lawfully carried out: either during a “public emergency” or in the “interest of public safety.” Neither of these conditions, the judge said, were secretive or abstract; they must be apparent to any reasonable person, as clarified by the Supreme Court in PUCL.

The intercepted conversations were also not placed before the Review Committee, as mandated by Rule 419-A of the Telegraph Rules — a procedural safeguard designed to protect against executive overreach. The court held that such non-compliance rendered the entire act of surveillance unconstitutional.

“As a consequence… the impugned order dated August 12, 2011, must necessarily be set aside as unconstitutional and one without jurisdiction,” the court said. The CBI, in its defence, had contended that the surveillance was lawful and carried out to investigate corruption involving public officials — a matter of public interest.

The agency argued that the alleged Rs 50 lakh bribe given by Kishore, who was the second accused in the case, to an Income Tax officer, the first accused, through an intermediary was sufficient cause for tapping phone conversations to prevent the commission of an offence.

But the judge rejected this line of reasoning, saying the scope of Section 5(2) cannot be expanded to cover secretive investigations, no matter how grave the offence.

According to the CBI’s case, a search was conducted at the premises of Everonn Education Ltd, where unaccounted income was allegedly discovered. The CBI alleged that the senior tax official demanded a bribe of Rs 50 lakh to help the company avoid penalties. Surveillance was approved to monitor the communication between the accused. While Rs 50 lakh in cash was allegedly recovered from a car linked to the tax officer and a friend, the petitioner was not present during the seizure, nor was the money found in his possession.

“It should be noted that it is not the case of the CBI that the petitioner (the second accused) was present on the spot at that time or that the money was seized from him,” the order said.

The surveillance order was signed by the Union Home Secretary and granted to the Central Bureau of Investigation. Kishore initially challenged the phone tapping in a criminal petition in 2014, which was dismissed on technical grounds. The present writ petition under Article 226 of the Constitution was filed in 2018 after the court granted liberty to challenge the order before the proper forum.

The court order detailed the evolution of the right to privacy, tracing its journey from early British common law to landmark US Supreme Court cases like Katz v. United States, and culminating in the Indian apex court’s interpretation in Puttaswamy. Justice Venkatesh, citing the Maneka Gandhi ruling, reiterated that any “procedure established by law” curtailing fundamental rights must be just, fair, and reasonable. “A valuable constitutional right can be canalised only by civilised processes,” the order said.