HC: Intercepting calls violation of right to privacy

Source: Times of India dated 23.10.2019

-- Swati Deshpande

The Bombay high court has quashed three orders passed by the Union home ministry to intercept phone calls of a businessman who is under CBI probe in a bribery case, saying it violates the right to privacy as held by the Supreme Court, reports Swati Deshpande.

Citing another SC order that tapping could be allowed only in a public emergency or in the interest of public safety, the HC directed the destruction of the illegally intercepted conversations. The interception orders had been passed in October 2009, and December and February 2010.

The HC’s order came on a plea filed by Mumbai businessman Vinit Kumar against whom the CBI has filed a case for allegedly giving a Rs 10 lakh bribe to a bank official for credit-related favour.

It directed the destruction of the illegally intercepted conversations and, again quoting a Supreme Court order, said tapping can be allowed only in a public emergency or in the interest of public safety. A bench of Justices Ranjit More and N J Jamadar held that permitting illegal interception “would lead to manifest arbitrariness and would promote scant regard to the procedure and fundamental rights of the citizens, and law laid down by the apex court”.

The HC order came in response to a petition by south Mumbai businessman Vinit Kumar against the interception orders in October 2009, and December and February 2010. CBI had registered a case against him for giving a bribe of Rs 10 lakh to a bank official for credit-related favour. Making it clear that it was not going into the merits of the CBI allegations, the HC said: “The intercepted recordings stand eschewed from the consideration of trial court.”

The court found that the government took a varying stand, and said it “deprecated” such stand, especially toward a fundamental right. It further observed that if SC judgments and laws against such intercepts are permitted to be flouted, it may amount to “breeding contempt for law, that too, in matters involving infraction of the fundamental right of privacy under Article 21”.

Kumar’s plea was that the ministry’s sanction contravened the provisions of the Indian Telegraph Act, 1885, and urged that the recordings be destroyed as directed by the SC in the landmark People’s Union for Civil Liberties (PUCL) versus Union of India judgment of 1997. He also relied on a 2017 9-judge constitution bench judgment in the KS Puttaswamy case that speaks about fundamental freedom.

Quoting the PUCL case, Justice More said: “The expression Public Safety... means the state or condition of freedom from danger or risk for the people at large. When either of the two conditions is not in existence, it was impermissible to resort to telephone tapping.”

The judge added that “to declare that de hors (outside the scope of) fundamental rights, in administration of criminal law to secure evidence against the citizens, it would lead to manifest arbitrariness and would promote scant regard to the procedure and fundamental rights of the citizens, and law laid down by the apex court”.