Two High Courts recently ruled differently on government-ordered phone tapping in bribery cases.

• While the Delhi High Court upheld it citing public safety, the Madras High Court struck it down over procedural lapses and narrow interpretation of “public emergency.”

The laws on Phone Tapping in India

• Indian Telegraph Act, 1885:Governs voice call interception.
  • Section 5(2) permits interception only during a public emergency or in the interest of public safety, on specific grounds.
• Information Technology Act, 2000: Section 69, Empowers the government to intercept, monitor, or decrypt electronic communications, including internet-based calls, emails, WhatsApp, and VoIP.
• Indian Post Office Act, 1898: Applies to the interception of postal communication.
• Indian Telegraph Rules, 1951 – Rule 419A:
  • Rule 419A  – Interception of phone calls must be authorised by the Home Secretary at the Centre or State level.
  • In urgent cases, an officer not below the rank of Joint Secretary can grant approval.
  • A Review Committee must assess the order within two months.
  • Initial authorisation is valid for 60 days and can be extended up to 180 days.
• Exception for Press: Messages meant for publication by accredited press correspondents are exempt from interception or detention unless specifically prohibited.
  • This exception underscores the significance of press freedom and restricts surveillance of journalists’ communications.

Constitutional Backing

• Any surveillance must comply with Article 19(2) (reasonable restrictions on free speech) and Article 21 (right to privacy, post-Puttaswamy verdict).
• Permissible grounds include: 
  • Sovereignty or integrity of India
  • Security of the state
  • Public order
  • Friendly relations with foreign states
  • Preventing incitement to an offence

What did the Delhi and Madras High Courts say?

Delhi High Court – Upheld the phone tap

• Context: A businessman was accused of trying to bribe officials to secure a ₹2,149 crore redevelopment contract.
• Reason for tapping: To prevent incitement to commit an offence (corruption).
• Court’s view:
  • Corruption at this scale threatens economic safety, which falls under public safety.
  • The order was justified under Section 5(2) of the Telegraph Act.

Madras High Court  – Quashed the phone tap

• Context: A man was accused of trying to pay a ₹50 lakh bribe to a tax official.
• Reason for tapping: Same — preventing incitement to an offence.
• Court’s view:
  • A tax evasion case doesn’t amount to a public emergency or public safety.
  • The order did not meet procedural standards set by the Supreme Court.
  • Also referred to a 2011 government press note clarifying that tax evasion alone is not a valid reason for phone tapping.

Supreme Court Landmark Judgements

PUCL v. Union of India (1997)

The Supreme Court established procedural safeguards for phone tapping:

• Tapping must be authorised through written orders by the Home Secretary (Central or State).
• Orders must be reviewed by a designated committee within 7 days.
• Duration of surveillance is limited to 60 days, extendable up to a maximum of 180 days.
• A review committee is required to monitor and ensure the legality of the interception.

K.S. Puttaswamy v. Union of India (2017)

The Court affirmed the Right to Privacy as a Fundamental Right under Article 21 of the Constitution.

• It held that any unauthorised or disproportionate surveillance violates constitutional protections.

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