Orders Directing Phone Tapping Amounts To Violation Of Right To Privacy: Rajasthan HC Directs State To Destroy Intercepted Messages
The Rajasthan High Court, Jaipur Bench has held that the orders directing the tapping of phones is in violation of the Right to Privacy under the Constitution. It has directed the State to destroy the intercepted messages/recordings and its copies on the ground that the authorities failed to record any reason in writing.
A Single Bench of Justice Birendra Kumar held, “The authorities have failed to record any reason in writing consisted with the requirement of sub-section (2) of Section 5 above. Therefore, impugned orders suffer from arbitrariness and violate constitutional right of the petitioner. … The respondent authorities are directed to destroy the intercepted messages/recordings and its copies. Such messages shall not be considered in the pending criminal proceedings at any stage of the proceeding. The petitioner would be at liberty to adopt available legal remedy, for other reliefs sought for, in the writ petition.”
The Bench said that when the statute provides procedural safeguards to prevent arbitrary infringement of the rights to privacy, it must be strictly followed.
Advocate Swadeep Singh Hora appeared for the petitioner while Dy. G.A. Atul Sharma appeared for the respondents.
In this case, the petitioner sought for quashing of the order passed by the Secretary (Home), Government of Rajasthan permitting the interception of Mobile Phones of the petitioner and others in purported exercise of power under Section 5(2) of the Indian Telegraph Act 1885. The mobile of the co-accused was ordered to be intercepted by the Anti-Corruption Bureau on suspicion that the said mobile was possibly being used for illegal activity relating to incitement to the commission of an offence affecting public safety.
The interception was permitted for a period of 60 days and the said order was extended for another 60 days, and on the same reasons by two separate orders, the mobile phones of the petitioner were ordered to be intercepted. The challenge was on the ground that the right to privacy was infringed by putting the mobile phones of the petitioner and others under surveillance/spying by the State machinery.
The High Court in the above context observed, “The statutory provisions are for some purpose and not for fun. The aforesaid provision ought to have been strictly followed but has not been followed at all. The respondents have not controverted that the impugned orders were not sent to the Review Committee nor any material suggest that the impugned orders were sent to the Review Committee.”
The Court said that the orders do not contain any reason whereas the statutory provisions require reason to be recorded in writing for coming to the conclusion that the interest of public safety persuaded the authority to pass the orders.
“If the directions of the Hon’ble Supreme Court in PUCL’ case (supra) which has been reinforced and approved by the Hon’ble Apex Court in Puttaswamy’s case (supra) as well as mandates of Acts and Rules are allowed to be flouted to affect illegal interception of messages it would lead to breeding contempt and arbitrariness”, noted the Court.
The Court, therefore, held that the orders suffer from manifest arbitrariness and if allowed to stand would amount to permit violation of the fundamental rights of the citizens and the law laid down by the Supreme Court.
Accordingly, the Court allowed the writ petition and quashed the orders.
Cause Title- Shashikant Joshi v. State of Rajasthan & Ors.
