By Krishnesh Bapat
In the wake of disclosures by the Pegasus Project, it has become more important than ever to understand the law which authorises the government to conduct surveillance – especially the provisions which permit non-digital phone tappings. To that end, the ‘Privacy High Court Tracker’ is an extremely useful tool developed by the Centre For Communication Governance, National Law University Delhi. The tracker enables stakeholders to analyse the evolving jurisprudence on privacy. High Courts across the country are at the forefront of this evolution. For the purposes of this piece, which discusses the law on state-mandated surveillance with a focus on phone-tappings, two judgments from the tracker are relevant – Vinit Kumar vs. CBI and Ors., 2019 (Bombay High Court) and Sanjay Bhandari and Ors. vs The Secretary of Govt. of India and Ors.2020 (Madras High Court).
But before we analyse these judgments, it is important to refer to the provisions of law that enable the government to listen to our conversations and the decision of the Supreme Court in PUCL vs. Union of India, (1997), which is the locus classicus on this subject. Section 5(2) of the Telegraph Act, 1885 (Telegraph Act) empowers the government to intercept any communication by a ‘telegraph’ from a person to another “on the occurrence of a public emergency” or “in the interest of public safety” if it is in the interest of sovereignty and integrity of India, the security of the state, friendly relations with foreign states or public order or to prevent incitement to the commission of an offence. Any order under Section 5(2) must be issued before the surveillance begins. Section 69 of the Information Technology Act, 2000 (IT Act) permits the government to intercept, monitor or decrypt communication generated, transmitted, received or stored in a computer.
Interestingly, Section 69 of the IT Act has not been subject to much judicial scrutiny. While challenges to its constitutionality are pending before the Supreme Court, the lack of scrutiny is perhaps because there is opacity around when, where and how this provision is used to conduct surveillance. Notably, the government has even refused to provide the total number of orders it has passed under this provision in a response to a right to information application filed by the Internet Freedom Foundation. Unlike Section 69 of the IT Act, Constitutional Courts have examined Section 5(2) of the Telegraph Act on several occasions. As mentioned above, the most notable instance is PUCL.
In PUCL, the constitutional validity of Section 5(2) of the Telegraph Act was challenged. The Supreme Court’s decision, which was subsequently affirmed in K.S. Puttaswamy vs. Union of India, , held that conversations over the telephone are private in nature. While this is significant since this judgment is from before Puttaswamy, the bite of the judgment was the Court’s interpretation of the phrases “on the occurrence of a public emergency” and “in the interest of public safety”. The Court held that 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. The Court also held that the phrases “take their colour off each other”, and that a breach of public safety/ a public emergency are evident to a reasonable person as they are not secretive conditions.
In terms of procedural safeguards, the Court, amongst other things, directed the Government to not conduct phone tapping unless there is an order from the home secretary which would ex-post be subject to review by a review committee also consisting of government officials. Notably, the Court stopped short of either prior or post judicial scrutiny.
The CCG Privacy High Court Tracker is a useful resource to examine how High Court’s have relied upon the decision in PUCL, especially after the Supreme Court’s decision in Puttaswamy. In this regard, the Bombay High Court decision in Vinit Kumar and Madras High Court’s decision in Sanjay Bhandari, offer a study in contrast.
In Vinit Kumar, the petitioner challenged three phone tapping orders issued against him, on the ground that they were ultra vires Section 5(2) of the Telegraph Act. Of course, the petitioner only found out that his conversations were being monitored after the Central Bureau of Investigation filed a charge-sheet against him in a criminal proceeding, where the petitioner was accused of bribing a public servant. The petitioner argued that there was no threat to public safety nor a public emergency to occasion such phone-tapping. The Bombay High Court agreed and noted that circumstances did not exist which “would make it evident to a reasonable person that there was an emergency or a threat to public safety”. The Court also went a step ahead and tested the phone tapping orders on the Puttaswamy proportionality standard (Kaul J, Paragraph 70) which requires the government to show – a) The action must be sanctioned by law; b) The action must be necessary in a democratic society; c) Proportionality – infringing action must be proportionate to the need for such interference; and d) Procedural safeguards. The Court found that the orders could not withstand the test and struck them down as they ‘neither had the sanction of law’ (as there was no public emergency nor a threat to public safety) nor have they been issued for a legitimate aim. (Paragraph 19)
In Sanjay Bhandari, the petitioners, who held official government positions, were accused of accepting a bribe in return for granting benefits. They found out that the Government was monitoring their conversations, and challenged the phone-tapping orders before the Madras High Court. Evidently, there was neither a public emergency nor threat to public safety that would justify the imposition of such an order. In PUCL, the Supreme Court had held that these situations are evident to a reasonable person as they are not secretive conditions. The Court also held that public emergency would mean the prevailing of a sudden condition or state of affairs affecting the people at large, calling for immediate action, and the expression “public safety” means the state or condition of freedom from danger or risk for the people at large.
The Madras High Court, going against established precedence, held that “Restricting the concept of public safety to the mere “situations that would be apparent to the reasonable persons” will exclude most of the actual threats which present the most grave circumstances like terrorist attacks, corruption at high places, economic and organised crimes, most of which are hatched in the most secretive of manners.”
Thus, the decision in Sanjay Bhandari interpreted Section 5(2) in a manner which was entirely contrary to the decision and perhaps, even legislative intent. The Court read into the provision its understanding of what constitutes “actual threats” and extended the scope of the provision to offences which do not have any bearing on public safety, as interpreted in PUCL and affirmed in Puttaswamy. And there is merit to that interpretation. The word safety follows the word ‘public’ which implies that the situation should be such that it puts at risk the people at large. Surely economic offences do not meet this criteria. There is merit to that interpretation, even from a rights perspective. Monitoring a person’s conversations constitutes a grave infringement on their right to privacy, and the need to undertake such an infringement must be proportionate to the ends sought to be achieved.