A recent meeting of chief secretaries and top police officials of States and Union Territories in New Delhi gave a carte blanche to the authorities to tap/intercept telephones. Law enforcement agencies can now tap anyone’s phone for security or operational reasons for 72 hours without getting permission from the Union home secretary or principal secretary (home) of states. After the meeting, the Central Board of Direct Taxes (CBDT) was quick to assert its power to tap telephones for conducting its investigations.
The law on the power to tap telephones was laid down by the Hon’ble Supreme Court in PUCL v. Union of India, (1997) 1 SCC 301. The case laid down the checks, subject to which the Government may tap telephones under section 5(2) of the Indian Telegraph Act, 1885.
The Court in unequivocal terms held that firstly, the occurrence of a ‘public emergency’ is a sine qua non for the exercise of power under section 5(2). In fact, the law expressly states that reasons are to be recorded in writing for the tapping of telephones. Secondly, the emergency has to be in terms of public safety. Thirdly, it was held that a mere ‘economic emergency’ would not fall within the meaning of ‘public emergency’. Fourthly, the court laid down that an authorization for tapping of phones could only be given by the Home Secretary or Home Secretaries of States. The pre-condition to delegation of this power, if at all, is the existence of an urgency, which would be needed to be recorded in the reasons as required by section 5(2).
A bare perusal of this judgment rubbishes the claim of the government and especially the CBDT to have an unbridled power to tap telephones. The checks in the system were read as a part of the law in order to ensure that there is no misuse of the power, as granted under law.
The Hon’ble Supreme Court has time and again read the right to privacy as a part of our right to life under Article 21 of the Constitution of India. This Fundamental Right of privacy is being whittled down by the frequent abuse of power by the Government. The tapping of phones and the subsequent leaks of the Ratan Tata and Niira Radia tapes to the media are a case in point.
Thus, it is very important that the government play by the rules and operate within the prescribed boundaries of the exercise of power. If this unrestricted access to telephones is not subjected to the necessary checks as prescribed by the Hon’ble Supreme Court, then our much cherished fundamental rights are bound to erode by this casual misuse of power.