Case Analysis

People's Union for Civil

Liberties
vs.
Union of India & Ors.
Title and Citation

People's Union of Civil Liberties (PUCL)

Vs.
Union of India (UOI) and Ors

Writ Petition (C) No. 256 of 1991

Decided On: 18.12.1996

AIR 1997 SC 568, (1997) 1 SCC 301

Parties to the Case
People's Union of Civil Liberties (PUCL) … Appellants

Union of India (UOI) and Ors. … Respondents

Hon'ble Judges
Kuldip Singh and Saiyed Saghir Ahmad, JJ.
Facts of the Case
1. The People’s Union for Civil Liberties , a non-profit organization, has filed
a public interest appeal under Article 32 of the Indian Constitution with
the Supreme Court, citing recent occurrences of telephone tapping.
2. The petitioner has challenged the constitutional validity of Section 5(2) of the
Indian Telegraph Act, 1885, arguing that it should be adequately read-down
to contain procedural safeguards to avoid arbitrariness and indiscriminate
telephone tapping.
3. The writ suit was based on the Central Bureau of Investigation’s (CBI) report
on “Tapping of Politicians’ Phones”, which was published in “Mainstream”
volume XXIX dated March 26, 1991, and a copy of it had been placed on
record.
Facts of the Case
4. The CBI investigation revealed the following lapses by MTNL related to phone
tapping:
a) The authorisation for putting some numbers under interception could not be provided.
b) Although authority letters were available, those numbers have not been shown in list being
tapped by MTNL
c) In some cases, interception of the phones were done beyond the authorised part
d) In a few more cases, interception of telephones had exceeded the maximum 180 days period
e) The files pertaining to interception had not been maintained properly

5. The CBI Investigation had also revealed that various authorized agencies are
not maintaining the files regarding interception of telephones properly, and
the maintenance of the records related to phone tapping are not uniform
among them.
Relevant Laws / Rules / Orders

Constitution of India
Article 19(1)(a): All citizens shall have the right to freedom of speech and expression.
Article 21: Protection of life and personal liberty.

The Indian Telegraph Act, 1885

Section 5(2): Power to Intercept messages in the event of occurrence of public
emergency or in interest of public safety which are the absolute necessity
Section 7(2)(b): Power to make rules for the conduct of telegraphs.
Issues of the Case / Questions of Law

1. Whether Section 5(2) of the Indian Telegraph Act, 1875 was infringing the right
to privacy of the citizens?
2. If Section 5(2) of the Act is not ultra vires to the Constitution, then what are
the procedural safeguards in order to remove arbitrariness and prevent
indiscriminate tapping of phones?
Case Laws

Kharak Singh Vs. State of U.P. & Ors. (AIR 1963 SC

1295) Govind Vs. State of Madhya Pradesh (AIR 1975
SC 1378) Maneka Gandhi vs Union Of India (1978 AIR
597)
R. Rajagopal & another Vs. State of Tamil Nadu (AIR 1995 SC 264)
 Contentions made by petitioner
• The petitioner contented that the right to privacy was a fundamental right guaranteed
under Articles 19(1) and 21 of the Constitution.
• The Petitioner further contended that to save Section 5(2) of the Act from being
declared unconstitutional, it would be necessary to provide adequate provisions to
safeguard the right to privacy .
• No rules have been framed under Sec 7(2)(b) of the Act for providing the precautions
to be taken for preventing the improper interception or disclosure of messages.
• The Petitioner argued that prior judicial sanction, ex parte in nature was the only
safeguard that could eliminate the element of arbitrariness or unreasonableness.
Contentions made by counsels assisting the court
• Mr. Kapil Sibal and Dr. Dhawan, as bar members, sought intervention to assist
the court.
• Mr. Sibal stated that in the interest of the security and sovereignty of India messages
may be intercepted.
• The core question is whether there are sufficient procedural safeguards to rule out
arbitrary exercise of power under the Act.
• Mr. Sibal contended that procedural safeguards, short of prior judicial scrutiny, shall
have to be read in Sec 5(2) of the Act to save it from arbitrariness.
Contentions made by respondent
• Striking down of Sec 5(2) of the Act would injure public interests and
jeopardise the security of the state.
• The respondents denied the allegations of misuse of power by the party in power,
or the authorized officer is incorrect.
• Phone tapping can only be ordered by an officer specifically authorized by
the Central or State Government, only under certain conditions such as
national emergency, with reasons recorded and therefore had sufficient
checks.
• Respondents contended that despite the checks in place, if anybody was
aggrieved, they could represent to the Government for suitable action.
Decision on constitutional validity of Sec 5(2) of the Act
• Right to privacy is a part of the right to "life" and "personal liberty" enshrined
under Article 21 of the Constitution. The said right cannot be curtailed
"except according to procedure established by law".
• Telephone-tapping would, thus, infract Article 21 of the Constitution unless it
is permitted under the procedure established by law.
• When a person is talking on telephone, he is exercising his right to freedom of
speech and expression. Telephone-tapping unless it comes within the grounds
of restrictions under Article 19(2) would infract Article 19(1)(a) of the
Constitution.
• The counsels assisting the court in this case have not seriously challenged
the constitutional vires of Section 5(2) of the Act.
Decision on procedural safeguards for telephone-tapping
• "Occurrence of any public emergency" or "in the interest of public safety" are the
sine qua non for the application of the provisions of Section 5(2) of the Act.
• When either of above two conditions are not in existence, the Government cannot
resort to telephone tapping even though it is necessary or expedient so to do in the
interests of sovereignty and integrity of India etc.
• The substantive law as laid down in Sec 5(2) of the Act must have procedural
backing so that the exercise of power is fair and reasonable.
• In the absence of any provision in the statute, it is not possible to provide for prior
judicial scrutiny as a procedural safeguard.
• Till the time the Central Government lays down just, fair and reasonable procedure
under Sec 7(2)(b) of the Act, the court shall lay down procedural safeguards for the
checks and balances so that the right to privacy of a person is protected.
Judgement
• Only the Home Secretary of the Central Government or of a State
Government is empowered to issue the order of telephone tapping and in
emergency only this power can be delegated.
• The authority who is passing such orders must be satisfied that phone
tapping was essential to obtain the information.
• The order for interception will cease to have effect after two months from
issuance of such order unless it is renewed and total time period for the
operation of such order is six months.
• The records should be maintained for the interception orders and the
procedure followed for it.
• Review committees consisting of Cabinet, Law and Telecom Secretary at the
Central Government, and at the State level consisting of Chief Secretary,
Law Secretary and another member to be formed to check that the orders
are in accordance with the law.
Presenter’s Analysis
1. Fundamental rights under Article 19(1)(a) and Article 21 and limitations
imposed by Article 19(2) and legislative procedures are the elements discussed
in the case.
2. Freedom of speech and expression can be public and private. The restrictions
imposed by Article 19(2) can be easily tested in the public domain. In the
private domain, the right to privacy comes into play.
3. Conversations on the telephone are often of an intimate and confidential
nature and any arbitrary actions of the concerned authorities should not be
considered by the court.
4. The right of personal liberty takes in not only a right to be free from
restrictions placed on one’s movements but also free from encroachments
on his personal life.
5. When a telephone call is tapped, such intrusion is considered to be against the
very essence of the scheme of talking on a phone call.
Presenter’s Analysis
6. The need of safeguarding the rights of the individuals and maintaining privacy
is paramount but when it comes to public emergencies or safety in the public
interest, the procedure established by law is to be followed while breaching of
privacy of the individual.
7. This procedure must remove any element of discretion, and must be resorted
to, only when it is essential.
8. In the words of Dicey, wherever there is discretion, there is room
for arbitrariness, which jeopardizes the legal freedom of the people.
9. Thus, the valuable fundamental rights under Article 19(1)(a) and Article 21 can
be channelized only by civilised procedures.
Thank you