Arbitrary phone tapping orders violate fundamental right to privacy: Rajasthan High Court

Surveillance without procedural safeguards would offend an individual’s fundamental right to privacy, the Rajasthan High Court recently held while quashing three phone tapping orders passed by the State’s Home Ministry [Shashikant Joshi v. State of Rajasthan].

Justice Birendra Kumar noted that the Indian Telegraph Act provides for procedural safeguards to prevent arbitrary infringement of the right to privacy, which must be strictly followed.

“When the statute provides procedural safeguards to prevent arbitrary infringement of the rights to privacy, it must be strictly followed. In other words, required mandates could not have been ignored or superseded by the State or its machinery leading to offending the right under Articles 19 and 21 of the Constitution of India. If the directions of the Supreme Court in the PUCL case, which has been reinforced and approved by the Apex Court in Justice KS Puttaswamy vs Union of India case, 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,” the judgment stated.

The State Home Ministry had in 2020 and 2021 passed three orders to ‘intercept the mobile phone’ of the accused in a bribery case, including the petitioner. The State authorities justified the phone tapping under the Indian Telegraph Act, alleging that the petitioner was involved in bribing a public servant.

The prosecution contended that following the interception of the phone, a first information report (FIR) came to be registered under relevant provisions of the Prevention of Corruption Act.

The petitioner challenged the interception orders on the ground that his right to privacy was infringed by the State putting his mobile phone under surveillance/spying.

Having heard the contentions, the Bench noted that the orders under challenge did not disclose reasons as to why such surveillance was in the interest of public safety.

“The authorities have failed to record any reason in writing consistent with the requirement of sub-section (2) of Section 5 of the Telegraph Act. Therefore, impugned orders suffer from arbitrariness and violate the constitutional right of the petitioner,” the order said.

In this background, the Court said that the orders in question suffered from manifest arbitrariness.

“Therefore, if allowed to stand would amount to permitting the violation of the fundamental rights of the citizens and the law laid down by the Supreme Court. Therefore, all three-interception orders stand hereby quashed. The authorities are directed to destroy the intercepted messages and recordings,” the Court said.

It also made it clear that the messages intercepted from the petitioner’s mobile phone shall not be considered in the pending criminal proceedings.

Advocates Swadeep Singh Hora, Mohit Khandelwal, TC Sharma, and Vishivas Saini appeared for the petitioners.

Deputy Government Advocate Atul Sharma represented the State.

Source: Bar and Bench.

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