TMI Blog1996 (12) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... alidity of Section 5 (2) of the Telegraph Act, 1885 (the Act), in the alternative it is contended that the said provisions be suitably read-down to include procedural safeguards to rule out arbitrariness and to prevent the indiscriminate telephone-tapping. The writ petition was filed in the wake of the report on Tapping of politicians phones by the Central Bureau of Investigation (CBI). Copy of the report as published in the Mainstream Volume XXIX, dated 26/03/1991 has been placed on record along with the rejoinder filed by the petitioner. The authenticity of the report has not been questioned by the learned counsel for the Union of India before us. Paras 21 and 22 of the report are as under:- 21. Investigation has revealed the following lapses on the part of MTNL. i) In respect of 4 telephone numbers though they were shown to be under interception in the statement supplied by MTNL, the authorisation for putting the number under interception could not be provided. This shows that records have not been maintained properly. ii) In respect of 279 telephone numbers, although authority letters from various authorised agencies were available, these numbers have not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order: Provided that press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section. (3.) THE above provisions clearly indicate that in the event of the occurrence of a public emergency or in the interest of public safety the Central Government or the State Government or any officer specially authorised in this behalf, can intercept messages if satisfied that it is necessary or expedient so to do in the interest of:- (i) THE sovereignty and integrity of India. (ii) THE security of the State. (iii) Friendly relations with foreign States. (iv) Public order. (v) For preventing incitement to the commission of an offence. The CBI report indicates that under the above provisions of law Director, Intelligence Bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken of preventing the improper interception or disclosure of messages. No rules have been framed by the Central Government under the provisions quoted above. (5.) MR . Rajinder Sachar, Sr. Advocate assisted by MR. Sanjay Parikh vehemently contended that right to privacy is a fundamental right guaranteed under Article 19 (1) and Article 21 of the Constitution of India. According to MR. Sachar to save Section 5 (2) of the Act from being declared unconstitutional it is necessary to read down the said provision to provide adequate machinery to safeguard the right to privacy. Prior judicial sanction - ex-parte in nature - according to MR. Sachar, is the only safeguard, which can eliminate the element of arbitrariness or unreasonableness. MR. Sachar contended that not only the substantive law but also the procedure provided therein has to be just, fair and reasonable. (6. ) WHILE hearing the arguments on 26/09/1995, this Court passed the following order: Mr. Parikh is on his legs. He has assisted us in this matter for about half an hour. At this stage, Mr. Kapil Sibal and Dr. Dhawan, who are present in Court, stated that according to them the matter is important and they being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fe in Art. 21 bears the same signification. Is then the word personal liberty to be construed as excluding from its purview an invasion on the part of the police of the sanctity of a man's home and an intrusion into his personal security and his right to sleep which is the normal comfort and a dire necessity for human existence even as an animal? It might not be inappropriate to refer hee to the words of the preamble to the Constitution that it is designed to assure the dignity of the individual and, therefore, of those cherished human value as the means of ensuring his full development and evolution. We are referring to these objectives of the framers merely to draw attention to the concepts underlying the constitution which would point to such vital words as personal liberty having to be construed in a reasonable manner and to be attributed that sense which would promote and achieve those objectives and by no means to stretch the meaning of the phrase to square with any preconceived notions or doctrinaire constitutional theories. Frankfurter, J. observed in Wolf v. Colorado (1948) 338 US 25 : THE security of one's privacy against arbitrary intrusion by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot rest on any element of feudalism or on any theory of freedom which has ceased to be of value. In our view Cl. (b) of Regulation 236 is plainly violative of Art. 21 and as there is no law on which the same could be justified it must be struck down as unconstitutional. Subba Rao, J. (as the learned Judge then was) in his minority opinion also came to the conclusion that right to privacy was a part of Article 21 of the Constitution but went to step further and struck down Regulation 236 as a whole on the following reasoning : Further, the right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person's house where he lives with his family, is his castle : it is his rampart against encroachment on his personal liberty. The pregnant words of that fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to safeguard the privacy of his own, his family, marriage, procreation, mother-hood, child-bearing and education among other matters. We have, therefore, no hesitation in holding that right to privacy is a part of the right to life and personal liberty enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy, Article 21 is attracted. The said right cannot be curtailed except according to procedure established by law. (9.) THE right to privacy - by itself - has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of one's home or office without interference can certainly be claimed as right to privacy . Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is a part of modern man's life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the United Nations Charter and the solemn declaration subscribed to by India. In A. D. M. Jabalpur v. S. Shukla (AIR 1976 SC 1207), Khanna J. in his minority opinion observed as under (Para 169):- Equally well established is the rule of construction that if there be a conflict between the municipal law on one side and the international law or the provisions of any treaty obligations on the other, the Courts would give effect to municipal law. If, however, two constructions of the municipal law are possible, the Courts should lean in favour of adopting such construction as would make the provisions of the municipal law to be in harmony with the international law on treaty obligations. Every statute, according to this rule is interpreted, so far as its language permits, so as not to be inconsistent with the comity of nations on the established rules of international law, and the Court will avoid a construction which would give rise to such inconsistency unless compelled to adopt it by plain and unambiguous language. In Jolly George Varghese v. Bank of Cochin, AIR 1980 SC 470, Krishna Iyer, J. posed the following question (Para 2):- From the perspective of inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fety, the sovereignty and integrity of India, the security of State, friendly relations with foreign States or public order or the prevention of incitement to the commission of an offence. It is in the context of these matters that the appropriate authority has to form an opinion with regard to the occurrence of a 'public emergency' with a view to taking further action under this section. Economic emergency is not one of those matters expressly mentioned in the statute. Mere 'economic emergency' - as the High Court calls it - may not necessarily amount to a 'public emergency' and justify action under this Section unless it raises problems relating to the matters indicated in the section. As mentioned above, the primary contention raised by the learned counsel is to lay-down necessary safeguards to rule-out the arbitrary exercise of power under the Act. (13.) SECTION 5 (2) of the Act permits the interception of messages in accordance with the provisions of the said SECTION. 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. Unless a public emerg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act must have procedural backing so that the exercise of power is fair and reasonable. The said procedure itself must be just, fair and reasonable. It has been settled by this Court in Maneka Gandhi v. Union of India, (1978) 2 SCR 621: (AIR 1978 SC 597), that procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself . Thus, understood, procedure must rule out anything arbitrary, freakish or bizarre. A valuable constitutional right can be canalised only by civilised processes . We are of the view that there is considerable force in the contention of Mr. Rajinder Sachar, Mr. Kapil Sibal and Dr. Rajiv Dhawan that no procedure has been prescribed for the exercise of the power under Section 5 (2) of the Act. It is not disputed that no rules have been framed under Section 7(2) (b) of the Act for providing the precautions to be taken for preventing the improper interception or disclosure of messages. In the absence of just and fair procedure for regulating the exercise of power under Section 5 (2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 5 (2) of the Act, the Second Press Commission gave following suggestions regarding public emergency and interest of public safety : 160. It may be noticed that the public emergency mentioned in the sub-section is not an objective fact Some public functionary must determine its existence and it is on the basis of the existence of a public emergency that an authorised official should exercise the power of withholding transmission of telegrams. We think that the appropriate Government should declare the existence of the public emergency by a notification warranting the exercise of this power and it is only after the issue of such a notification that the power of withholding telegraphic messages should be exercised by the delegated authority. When such a notification is issued, the principal officer of the telegraph office can be required to submit to the District Magistrate, whom we consider to be the proper person to be the delegate for exercising this power, such telegrams brought for transmission which are likely to be prejudicial to the interest sought to be protected by the sub-section. Thereupon the District Magistrate should pass an order in writing withholding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in the absence of any provision in the statute, it is not possible to provide for prior judicial scrutiny as a procedural safeguard. It is for the Central Government to make rules under Section 7 of the Act: Section 7 (2) (b) specifically provides that the Central Government may make rules laying down the precautions to be taken for preventing the improper interception or disclosure of messages. The Act was enacted in the year 1885. The power to make rules under Section 7 of the Act has been there for over a century but the Central Government has not thought it proper to frame the necessary rules despite severe criticism of the manner in which the power under Section 5 (2) has been exercised. It is entirely for the Central Government to make rules on the subject but till the time it is done the 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the material 7. The use of the intercepted material shall be limited to the minimum that is necessary in terms of Section 5(2) of the Act. 8. Each copy made of any of the intercepted material shall be destroyed as soon as its retention is no longer necessary in terms of Section 5(2) of the Act. 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 under Section 5(2) of the Act. Where there is or has been an order whether there has been any contravention of the provisions of Section 5(2) of the Act. (b) 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. It shall further direct the des ..... X X X X Extracts X X X X X X X X Extracts X X X X
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