Phone tapping: Violation of constitutional, human rights
Sanjay Parikh in the ECONOMIC TIMES
Advocate practising in the Supreme Court
“The right to be let alone” is how Lewis D. Bradies defined ‘privacy’ in 1890. While it is moral and ethical for a person not to peep into other’s privacy, for the State it is a sacrosanct constitutional obligation. The State can neither bug information about political opponents like the infamous Watergate, secretly and selectively, nor can it, like a prosecutor, collect material for investigation.If it does so, except when the law so mandates, it violates his right to privacy, to live with dignity and respect. Human rights recognise that a person has to be protected from intrusions into his privacy. Justice Frankfurter, in applying the 4th Amendment to the US Constitution, had said that the privacy violations are required “to be condemned as inconsistent with the concept of human rights enshrined in the history and the basic constitutional documents…” Life and liberty are not empty words; they include all those necessary ingredients which give meaning to them. Privacy of a person is a part of his life and liberty under our Constitution. Any invasion of this right, which is fundamental in nature, can be done only according to the constitutional limitations.The act of telephone tapping affects right to privacy as well as right to freedom of speech and expression, both are Fundamental Rights under the Constitution. Art 21 of the Constitution, which gives protection to the life and liberty, can allow only such legislature-made law which meets the constitutional requirements and applies a procedure which is just, fair and reasonable. Further, violation of right of freedom of speech and expression is not permissible except what Art. 19 of the Constitution provides. Therefore, not only substantive law but even the procedure should satisfy the constitutional test. The power of interception of communication can be resorted to, when it is necessary or expedient so to do in the interest of the sovereignty and integrity of India, security of the state, friendly relations with foreign state, public order or for preventing incitement to the commission of an offence.Without existence of these conditions, no interception of messages or conversation is permitted. Even if any of these conditions exist, yet the procedure of tapping of telephones is permissible only if the procedure laid down is just, fair and reasonable. The Supreme Court in PUCL vs UOI (decided in 1997) had dealt with the aspect of telephone tapping when the CBI had brought out in its Report in 1991 mass-scale illegal telephone tapping. After examining the issue in depth, the Court said that “right to hold a telephone conversation in privacy of one’s home or office without interference can certainly be claimed as the right to privacy” and that “telephone conversation is an important facet of man’s private life.”
Therefore, telephone tapping, unless it follows the procedure established by law, will be unconstitutional. The Supreme Court in the said case laid down the procedure in case the State decides to tap someone’s phone. The conditions are:n The order for telephone tapping can be issued only by the home secretary of the govt of India and home secretary of the state governments. Only in urgent cases, the power can be delegated to an officer below the rank of joint secretary. Reasons have to be recorded for such order, which can continue only for two months unless extended which shall not exceed six months.n This order is subject to examination by a review committee, consisting of Cabinet secretary, law secretary and telecommunication secretary. The review should be done within 2 months of the order of interception. The orders so passed should be specific with regard to the person, places, addresses and can be justified only on the ground that it was not possible to collect the information through other means. The invasion into privacy has to be minimum.
The authority shall maintain all the necessary records which shall be destroyed as soon as its retention is found unnecessary. The Supreme Court had not accepted the argument that permission to allow telephone tapping should have prior judicial scrutiny ex-parte. It allowed the higher echelons in bureaucracy to have this right. The repeated incidents of telephone tapping need that the law should be codified and should bring in the prior judicial scrutiny to avoid such incidents of invasion into people’s privacy. Justice Brandeis of the US Supreme Court once observed that “the greatest dangers to liberty is insidious encroachment by means of zeal, well meaning but without understanding.” This is what seems to have happened in the present incidents of phone tapping. It appears that these acts of telephone tapping neither satisfy the constitutional requirements of such an act being in the interest of the sovereignty and integrity of India, security of the state, friendly relations with foreign state, public order or for preventing incitement to the commission of an offence nor the procedure laid down by the Supreme Court. Such incidents of telephone tapping should be viewed seriously as such violations reduce the individual’s constitutional and human right to mockery and subject him to indignity and ridicule. Such invasions are undemocratic and uncivilised.