The HC said phone tapping is permitted only under Section 5(2) of Telegraph Act when there is a clear public emergency or threat to public safety, backed by reasons and due process
In a significant judgment that reiterates constitutional protections in the digital age, the Madras High Court has quashed a 2011 phone-tapping order issued by the union ministry of home affairs against a private company executive, holding that the interception lacked the mandatory threshold of “public emergency” or “public safety” as required under Section 5(2) of the Telegraph Act.
The bench of Justice N Anand Venkatesh opined that the Centre’s authorisation to intercept the phone conversations of P Kishore—then managing director of Everonn Education Ltd—was issued without sufficient justification and in violation of the constitutional right to privacy under Article 21.
A bribery FIR was registered by the CBI in August 2011 involving an IRS officer (A1), who allegedly demanded Rs 50 lakh to shield the company from tax scrutiny. Kishore (A2) was accused of arranging the bribe, and a friend of the officer (A3) was intercepted carrying the cash. However, the CBI did not apprehend Kishore in possession of the bribe or at the scene.
The Centre had authorised the interception on the grounds of “public safety” and “preventing incitement to the commission of an offence”.
However, the court noted that these terms cannot be used in a vague or routine manner. Citing the Supreme Court’s landmark ruling in People’s Union for Civil Liberties and KS Puttaswamy, the judge held that such surveillance must meet the constitutional tests of necessity, proportionality, and legality.
“Neither the occurrence of public emergency nor interest of public safety is a secretive condition… either would be apparent to a reasonable person,” the court observed, referring to the SC precedents and added that no such justification was visible in the interception order, which appeared to be “mechanical” and “cyclostyled”.
Further, the high court held that procedural safeguards under Rule 419-A of the Telegraph Rules, which require review by a committee and periodic oversight, were also not followed, thereby rendering the order illegal.
Importantly, the court rejected the authorities’ argument that even assuming that the order under Section 5(2) of the Act was without jurisdiction, the evidence so collected was admissible since it is a well-settled proposition of law that even illegally collected evidence is admissible provided it is relevant.
The court opined that once the surveillance order was found to be unconstitutional, any material or evidence collected as a result of it would also be tainted. The HC also pointed out that in the case at hand, the petitioner was only accused of an offence; hence, the presumption of innocence still applied in his favour.
