This article on ‘People’s Union For Civil Liberties V. Union Of India: Case Analysis ‘ was written by Vaishnavi Parate, an intern at Legal Upanishad.
Science and technology are rapidly progressing in today’s world. People make extensive use of it to make their lives easier and more efficient. However, while it has numerous benefits and advantages, it also has certain disadvantages. On the one hand, technology is being used to benefit not only humans but also society; on the other hand, some anti-social forces are utilising it to harm others. One of technology’s long-preferred flaws is the violation of privacy. Great hackers have begun to emerge as a result of the emergence of dark technologies and fraud.
In this article, the author has tried to analyse one such case where the Supreme Court decided whether Section 5(2) of the Telegraph Act violates the fundamental right to privacy granted under the Constitution of India. The main issue in this lawsuit is the privacy of telephone conversations and the right to use the telephone freely without fear of being overheard. This article will discuss whether Phone Tapping is Legal or Illegal In India.
FACTS OF THE PUCL V. UNION OF INDIA CASE
- PUCL, which is a Human rights body, filed a PIL in court challenging the provisions of the Telegraph Act.
- This petition was submitted with the view that Sec 5(2) of the Act is inconsistent with the fundamental rights and should be amended accordingly. Arbitrariness should be eliminated, government power should be controlled, and procedures should be established.
- The lawsuit was based on the CBI’s (Central Bureau of Investigation) Report on “Beginning of Politician’s Telephone Wiretapping”.
- This showed that the phone calls of prominent political leaders were wiretapped by MTNL (Mahanagar Nigam Limited) in an orderly manner, were not tracked, and contained errors that violated the person’s basic rights such as privacy and freedom. In India’s Puttaswamy judgement, the right to privacy took centre stage.
- Whether sec. 5(2) of the said Act is arbitrary or requires modification?
- Whether sec. 5(2) of the Telegraph Act is violating the right to privacy?
- Article 17 of the Indian Constitution
- Article 21 of the Indian Constitution
- Sec. 5(2) of The Indian Telegraph Act, 1885
The Supreme Court held in the present case that, Under Sec. 5(2) of the Act, the orders regarding wiretapping can be issued only by the government, state, or Minister of Home Affairs. Such direction or orders obliges the person to whom the order is addressed to intercept communications covered by the order while they are being transmitted over the public telecommunications infrastructure. The person to whom the order is addressed may also be required to disclose intercepted material to that person in the manner specified in the order.
In determining whether such an order is necessary, it is essential to consider whether the information sought could have been obtained more cheaply by other means. The interception required by Sec. 5(2) of the Act is the interception of communications to or from the address or addresses specified in the order, which may be used to transmit communications to or from the specific person or set of facilities specified or described in the order. Where continuation is deemed appropriate, orders made under Section 5(2) of this Act shall expire at the end of two months from the date of issuance, unless renewed before the end of the two months.
Everyone recognizes that the separation of powers is necessary, so this provision was also followed in this case. The court declined to consider the allegation that judicial review should be the only procedural safeguard before issuing an interception order. Legislative power in this regard, in particular, was alleged to lie with the central government, and the court also accused the government of failing to enact appropriate legislation, despite criticism of the provision. Meanwhile, courts have set guidelines to expedite the process, eliminate arbitrariness, and protect the right to privacy.
The Supreme Court decision in the present case ruled that tapping a person’s telephone without proper protection or following the procedures prescribed by law constitutes a violation of a person’s fundamental right to privacy.
In considering the right to privacy, the Court referred to cross-border instruments and Indian and cross-border judicial bodies to affirm the right to privacy, noting that privacy is violated only through legally established procedures. They further considered that Article 5(2) provides for some special circumstances in which telephone tapping may take place, but only through a fair and reasonable exercise of essential powers. It points out the lack of procedural safeguards for exercise.
As a result, the Court did not revoke Section 5(2), but instead, to curb abuse of supervisory powers and protect the right of foreclosure, the courts sought detailed information on the superintendent’s exercise of supervisory powers and provided guidelines. He also criticised the government’s casual attitude in failing to set applicable security measures despite past criticisms.
Privacy is an integral part of the life of any human being. It is specifically guaranteed by the Indian Constitution which states it as one of the basic human needs in this busy daily life. Whether it’s hacking the internet or tapping phones, such practices have always been condemned and the sites involved in such practices, whether Facebook or WhatsApp, have always faced backlash. It has been concluded that eavesdropping on telephone conversations is a violation of the fundamental right to privacy.
The growth of technology has given us easy access to both the good and the bad. All information will be immediately retrieved from your phone with a click or OTP. Governments have access to our information for the reasons above, and hackers who break the code can mislead our critical information. Therefore, it is also our responsibility to review the privacy policies of various websites and apps and stay aware of our privacy rights in this digital world.
- Akshara Sinha, “People’s Union of Civil Liberties (PUCL) v. Union of India”, Law essentials Blog, 16 January 2022, available at: https://lawessential.com/all-blogs/f/peoples-union-of-civil-liberties-pucl-v-union-of-india?blogcategory=Case+Comments (last visited 20 Jul. 23).
- K. Singh, “People’s Union of Civil Liberties … vs Union of India (UOI) and Anr”, Indian Kanoon, available at: https://indiankanoon.org/doc/31276692/ (last visited 20 Jul. 23).
- Sweety Kumari, “PEOPLE’S UNION OF CIVIL LIBERTIES v. UNION OF INDIA & ANOTHER”, Law Foyer, 4 June 2022, available at: https://lawfoyer.in/peoples-union-of-civil-liberties-v-union-of-india-another/ (last visited 20 Jul. 23).
- “People’s Union for Civil Liberties vs. Union of India & Ors”, Legal Vidhya, 5 May 2023, available at: https://legalvidhiya.com/peoples-union-for-civil-liberties-vs-union-of-india-ors/ (last visited 20 Jul. 23).