TaxTMI 
TaxTMI 
2019 (10) TMI 1591
X X X X Extracts X X X X
X X X X Extracts X X X X
....on of India [(1997) 1 SCC 301] and as provided in Rule 419A(17) introduced by G.S.R. 193 of 1st March, 2007 (w.e.f. 12th March, 2007) The petitioner is also relying on a Nine Judge Constitution Bench judgment in K.S. Puttaswamy v. Union of India [(2017) 10 SCC 1] for seeking enforcement of his fundamental rights under Articles 14 and 21 of the Constitution of India. 2. As per petitioner, the alleged illegally intercepted telephonic recordings contained in the charge-sheet and all material collected on the basis of such alleged illegally intercepted telephonic recordings ought to be set at naught. The petitioner submits that it is settled law that if the foundation is removed, the structure falls and that the legal maxim "sublato fundamento cadit opus" squarely applies in the instant case. 3. Section 5 of the 1885 Act deals with the power of the Government to take possession of licensed telegraphs and to order interception of messages. Sub-section (2) of Section 5, for our purpose is relevant, which reads as follows: "5.(1) (2) On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he sine qua non. for the application of the provisions of Section 5(2) of the Act. Unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers under the said Section. Public emergency would mean the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action. The expression "public safety" means the state or condition of freedom from danger or risk for the people at large. When either of these two conditions are not in existence, the Central Government or a State Government or the authorised officer cannot resort to telephone tapping even though there is satisfaction that it is necessary or expedient so to do in the interests of sovereignty and integrity of India etc. In other words, even if the Central Government is satisfied that it is necessary or expedient so to do in the interest of the sovereignty and integrity of India or the security of the State or friendly relations with sovereign States or public order or for preventing incitement to the commission of an offence, it cannot intercept the messages or resort to telephone tapping unless a publi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....right to privacy of an individual has to be safeguarded. In order to rule-out arbitrariness in the exercise of power under Section 5(2) of the Act and till the time the Central Government lays down just, fair and reasonable procedure under Section 7(2)(b) of the Act, it is necessary to lay down procedural safeguards for the exercise of power under Section 5(2) of the Act so that the right to privacy of a person is protected. [Emphasis supplied] 5. Pursuant to the above observations, the Hon'ble Supreme Court in PUCL (Supra) was pleased to order and direct inter alia the following as procedural safeguards: "35-We therefore direct as under.... 9. There shall be a Review Committee consisting of Cabinet Secretary, the Law Secretary and the Secretary, Telecommunication at the level of the Central Government. The Review Committee at the State level shall consist of Chief Secretary, Law Secretary and another member, other than the Home Secretary, appointed by the State Government. (a) 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the fundamental right to privacy, and in order to rule out arbitrariness in the exercise of power under Section 5(2) of the Act, the Hon'ble Supreme Court laid down procedural safeguards for the exercise of power under Section 5(2) of the Act and inter alia directed that there shall be a Review Committee, which shall on its own, within two months of the passing of the order by the authority concerned, investigate, whether there has been any contravention of the provisions of Section 5(2) of the Act. VII. Not only this, the Hon'ble Supreme Court further directed that 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, and shall further direct the destruction of the copies of the intercepted material. VIII. The Hon'ble Supreme Court further directed that 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. 7. These directions not only forge procedural safeguards into the matters of i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and expression under Article 19(1)(a) unless authorized by Article 19(2). The judgment relied on the protection of privacy under Article 17 of the International Covenant on Civil and Political Rights (and a similar guarantee under Article 12 of the Universal Declaration of Human Rights) which, in its view, must be an interpretative tool for construing the provisions of the Constitution. Article 21. in the view of the Court, has to be interpreted in conformity with international law. In the absence of rules providing for the precautions to be adopted for preventing improper interception and/or disclosure of messages, the fundamental rights under Articles 19(1)(a) and 21 could not be safeguarded. But the Court was not inclined to require prior judicial scrutiny before intercepting telephone conversations. The Court ruled that it would be necessary to lay down procedural safeguards for the protection of the right to privacy of a person until Parliament intervened by framing rules under Section 7 of the Telegraph Act. The Court accordingly framed guidelines to be adopted in all cases envisaging telephone tapping. 70. The need to read the fundamental constitutional guarantees w....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... international law concepts to interpret Article 21 in accordance with these concepts." 10. Thus, now the judgment in PUCL (supra) has to be seen in the light of observations contained in the nine Judge Constitution Bench judgment. The nine judge judgment also noticed the earlier judgments in R.M. Malkani v. State of Maharashtra (1973) 1 SCC 471 and observed as under: "51. Among the early decisions of this Court following Kharak Singh was R.M. Malkani v. State of Maharashtra. In that case, this Court held that Section 25 of the Indian Telegraph Act, 1885 was not violated because:(R.M. Malkani Case, SCC p. 476, para 20) "20. Where a person talking on the telephone allows another person to record it or to hear it, it cannot be said that the other person who is allowed to do so is damaging, removing, tampering, touching machinery battery line or post for intercepting or acquainting himself with the contents of any message. There was no element of coercion or compulsion in attaching the tape recorder to the telephone." This Court followed the same line of reasoning as it had in Kharak Singh while rejecting a privacy based challenge under Article 21. Signif....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ble. The law which provides for the curtailment of the right must also be subject to constitutional safeguards. 317. .......... The first part of the decision in Kharak Singh which invalidated domiciliary visits at night on the ground that they violated ordered liberty is an implicit recognition of the right to privacy. The second part of the decision, however, which holds that the right to privacy is not a guaranteed right under our Constitution, is not reflective of the correct position. Similarly, Kharak Singh's reliance upon the decision of the majority in Gopalan is not reflective of the correct position in view of the decisions in Cooper and in Maneka. Kharak Singh to the extent that it holds that the right to privacy is not protected under the Indian Constitution is overruled. 325. Like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 21, privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21 an invasion of privacy must be justifi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rdinate legislation to pass muster under the said Article. Each of the tests evolved by this Court, qua legislation or executive action, under Article 21 read with Article 14: or Article 21 read with Article 19(1) (a) in the aforesaid examples must be met in order that State action pass muster. In the ultimate analysis, the balancing act that is to be carried out between individual, societal and State interests must be left to the training and expertise of the judicial mind. 568. Similarly, I also hold that the "right to privacy" has multiple facets, and, therefore, the same has to go through a process of case-to-case development as and when any citizen raises his grievance complaining of infringement of his alleged right in accordance with law. 578. It is not India alone, but the world that recognises the right of privacy as a basic human right. The Universal Declaration of Human Rights to which India is a signatory, recognises privacy as an international human right. The importance of this right to privacy cannot be diluted and the significance of this is that the legal conundrum was debated and is to be settled in the present reference by a nine-Judges Constitu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t of the freedom guaranteed by Part III of the Constitution which is subject to specified restrictions; (b) Any infringement of the right to privacy by State Authorities will have to meet the following four tests based on the "Principle of proportionality and legitimacy": 1. The action must be sanctioned by law; 2. The proposed action must be necessary in a democratic society for a legitimate aim; 3. The extent of such interference must be proportionate to the need for such interference; 4. There must be procedural guarantees against abuse of such interference. (c) All earlier judgments suggesting to the contrary, are no longer binding precedents. The matters of infraction of the fundamental right to privacy would now have to necessarily satisfy the aforesaid tests, and cannot be dealt with on the basis of the overruled judgments in M.P. Sharma (supra) or Kharak Singh (supra) or based thereon or on the same line of reasoning like R.M. Malkani (supra). 13. It is at this stage, it is pertinent to note that directions contained in PUCL (supra) are in consonance with the aforesaid 4 tests. 14. After the judgment in PUCL (supra....
X X X X Extracts X X X X
X X X X Extracts X X X X
....No. 99 of 2011 arising out of FIR No. RC. 0682010003 of 11th April, 2011, lodged by CBI. In brief, the case of CBI alleges that the petitioner is a bribe-giver, who gave a bribe of Rs. 10,00,000/- to accused No. 1 (Public Servant-Bank Official) for getting certain credit related favour. We are not going into the merits or otherwise of the allegations levelled by CBI. The same can be assailed by the petitioner in his discharge application before the Trial Court. 16. We are of the view that as per Section 5(2) of the Act, an order for interception can be issued on either the occurrence of any public emergency or in the interest of the public safety. The impugned three interception orders were issued allegedly for the reason of 'public safety'. As held in PUCL (supra), unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers under the said section. The expression "Public Safety" as held in PUCL (supra) means the state or condition of freedom from danger or risk for the people at large. When either of two conditions are not in existence, it was impermissible to take resort to telephone tappin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s are not mandatory. It is an admitted position that Rule 419(A)(17) which provides for destruction of intercepted messages also adopt the said directions. We can neither permit the Respondents to continue to ignore the directions of the Hon'ble Apex Court nor can we ignore the same. Having held that the impugned interception orders have been issued in contravention of the provisions of section 5(2) of the Act, we have no option but to further direct the destruction of intercepted messages. 22. There is another aspect which has been argued. We were shown that CBI has taken diverse stands in various proceedings before the trial Court from time to time on the issue of compliance of rules in response to the applications made by the Petitioner. 23. In reply dated 27th January 2016 filed by the CBI before the trial Court, it was contended as follows: "3. That the Applicant accused Shri. Vinit Kumar has filed the Miscellaneous Applications before this Hon'ble Court for providing certified copy of the prior approval of the review committee under Rule 419(A) of Indian Telegraph Rule, 1951. 4. That, the said approvals under Rule 419(A) of the Indian Telegraph....
X X X X Extracts X X X X
X X X X Extracts X X X X
....w Committee........" 27. On behalf of the Respondent-Union of India, one Mr. Rakesh Kumar, Secretary to Government of India, Ministry of Home Affairs has filed an affidavit dated 8th August 2019. While relying on Rule 419A(18), he has submitted thus in paragraphs 2 and 3: "2. ........ Thus, as per the provision of sub Rule 18 of Rule 419A of the Indian Telegraph Rules, 1951 all the interception order of mobile numbers for the above periods have been destroyed through shredding machine being more than six months old. 3. ........ Only when the Review Committee is of the opinion that the directions are not in accordance with the provisions as per Section 5(2) of the Telegraph Act, may set aside the directions and orders for destruction of the copies of the intercepted message or class of messages. Otherwise no direction is issued by the Review Committee" 28. We deprecate taking of such varying stands by the Respondents in the matter of alleged violation of fundamental rights. 29. The Respondents also claim that three interception orders dated 29.10.2009, 18.12.2009 and 24.2.2010 are 3 different orders and are not continuation of the earlier order. This actio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ndent and would not put them on a better footing to take advantage of their own wrong. 32. In KLD Nagashree v. Government of India [AIR-2007 AP 102] while considering the rules as existed before 12.7.2007 and directing the destruction of intercepted messages pursuant to the illegal direction, it was observed in paragraphs 35 to 38: "35. Keeping in view the object and purpose of the said Rules as declared in People's Union for Civil Liberties's case (supra) and particularly since the violation of the said provisions would result in infraction of right to privacy of an individual which is a part of the right guaranteed under Article 21 of the Constitution of India, I am of the opinion that Rule 419-A though procedural in nature is mandatory and the non-compliance of the same would vitiate the entire proceedings. 36. It is also relevant to note that under Sub-rule (9) if the Review Committee is of the opinion that the directions are not in accordance with the provisions of Rule 419-A, it is empowered to set aside the directions and order for destruction of the copies of the intercepted message. The fact that the consequences of non-compliance of the proced....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al directions in PULC's case (supra) directing destruction of the intercepted messages on finding contravention of section 5(2) of the Act was not in consideration. The fact of complete lack of jurisdiction and mandatory rules itself providing for consequences of destruction in such event was not the issue involved and considered. Most importantly, while delivering the said judgment, Delhi High Court did not have the benefit of authoritative pronouncement of the nine judges constitution bench judgment in K.T. Puttaswamy (supra). No examination on the touchstone of principles of proportionality and legitimacy, as laid down by the nine judges constitution bench judgment in K.T. Puttaswamy (supra) was involved. The facts before the Delhi High Court were materially different. The case of Dharambir Khattar (supra) is, thus, distinguishable on the above peculiar facts and ground. 35. Similarly, Navjot Sandhu (supra) was a case of prevention of terrorist activities. It was serious case relating to the national security. It was nobody's case that ingredients of section 5(2) of the Act could not be satisfied or there was complete lack of jurisdiction under section 5(2) of the Act....
X X X X Extracts X X X X
X X X X Extracts X X X X
....und of violation of the fundamental right under Article 20(3), the argument being that the evidence was no better than illegally compelled evidence. In support of that contention reference was made to the Fourth and Fifth amendments of the American Constitution and also to some American cases which seemed to hold that the obtaining of incriminating evidence by illegal seizure and search tantamounts to the violation of the Fifth amendment. The Fourth amendment does not place any embargo on. reasonable searches and seizures. It. provides that the right of the people to be secure in their persons, papers and effects against unreasonable searches and seizures shall not be violated. Thus the privacy of a citizen's home was specifically safeguarded under the-Constitution, although reasonable searches and seizures were not taboo. Repelling the submission, this Court observed at page 1096." A power of search and seizure is in any system of jurisprudence in overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations b....