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Privacy Rights and Technical Surveillance

The Delhi High Court recently said if illegally intercepted messages or audio conversations having no sanction of law are permitted, it would lead to manifest arbitrariness and would promote scant regard to the procedure and fundamental rights of the citizens.

The Indian judiciary, has time and again, upheld the right to privacy. Courts in their orders/judgments have observed that any private conversations of any individual have to be protected unless it is undermining national security and sovereignty.

Recently, a single-judge bench of Justice Chandra Dhari Singh set aside two orders passed by a Special Judge who had framed charges against Jatinder Pal Singh in 2012 in a case registered by the CBI, on the basis of evidence gathered through such illegal means. “It is also relevant to add here that if the directions of the Hon’ble Supreme Court in PUCL which are now re-enforced and approved by the Hon’ble Supreme Court in KS Puttaswamy as also the mandatory rules in regard to the illegally intercepted messages/audio conversations pursuant to an order having no sanction of law, are permitted, it would lead to manifest arbitrariness and would promote the scant regard to the procedure and fundamental rights of the citizens, and law laid down by the Hon’ble Supreme Court,” the Court said.

However, right to privacy was first established in Kharak Singh vs State of UP, where the Court discussed the relationship between surveillance and personal and found that unauthorized intrusion into a person’s home would interfere with his/her right to personal liberty. The apex court in People’s Union of Civil Liberties (PUCL) vs Union of India (UOI) while shaping the State’s surveillance powers declared that: An order for tapping a telephone connection shall only be issued by the Home Secretary, Government of India, and Home Secretaries of the State Governments. In an urgent case, the power may be delegated to an officer of the Home Department of the Government of India and the State governments, not below the rank of Joint Secretary. Copy of the order shall be sent to the Review Committee concerned within one week of passing of the order.

The apex court further directed that the Review Committee will consist of Cabinet Secretary, Law Secretary and Secretary, Telecommunications, at the level of the Central Government and Chief Secretary, Law Secretary and another member, other than the Home Secretary, appointed by the State Government at the state level. The Court further went on to direct that the Committee shall on its own, within two months of the passing of the order by the authority concerned, investigate whether there is or has been a relevant order under Section 5(2) of the Act. Where there is or has been an order, whether there has been any contravention of the provisions of Section 5(2) of the Act. If after investigation, the Committee concludes that there has been a contravention of the provisions of Section 5(2) of the Act, it shall set aside the order under scrutiny of the Committee. It shall further direct the destruction of the copies of the intercepted material, if after investigation, the Committee concludes that there has been no contravention of the provisions of Section 5(2) of the Act, and it shall record the findings to that effect.

Justice Kuldip Singh in the PUCL case further added: “With the growth of highly sophisticated communication technology, the right to hold telephone conversation, in the privacy of one’s home or office without interference, is increasingly susceptible to abuse. It is undoubtedly correct that every Government, howsoever democratic, exercises some degree operation as a part of its intelligence outfit but at the same time citizen’s right to privacy has to be protected from being abused by the authorities of the day.”

The Supreme Court in a landmark decision on August, 2017 (Justice K.S. Puttaswamy (Retd.) and Anr. vs Union Of India And Others, (2017) 10 SCC 1) unanimously upheld the right to privacy as a fundamental right under Article 14, Article 19 and Article 21 of the Constitution of India.

In the latest case, the CBI Special Unit, on the basis of some specific information, had placed some mobile phones under telephonic surveillance during the period when Medical Council of India received the application for renewal of permission from Gian Sagar Medical College and Hospital, Patiala. According to the prosecution, the investigation further revealed that criminal conspiracy to obtain favours in the form of recommendation for permission for admission into fourth year batch for MBBS course began after deficiencies were pointed out during the first inspection of Gian Sagar Medical College and Hospital.

The CBI lodged a case against Dr Ketan Desai, then president, Medical Council of India, Jatinder Pal Singh, an alleged middleman, and others for granting permission to Gian Sagar Medical College and Hospital for admission to the fourth batch of MBBS course for the 2011-12 session despite deficiencies on the behalf of the college. Income tax authorities had recovered a sum of Rs two crore from Jatinder Pal Singh’s residence.

The High Court looked into Rule 419A of the Rules framed under the Telegraph Act and noted that the order of the home secretary granting permission to intercept telephonic conversations is to be forwarded to the Review Committee within seven days of passing the order, in order to be reviewed by the Committee.

“This Court does not find any material on record to establish that any review of the order of the Home Secretary was conducted in compliance of the aforesaid rules framed under the Telegraph Act. Therefore, this Court is convinced that the Special Judge while passing the impugned orders totally ignored the provisions of the aforesaid rules,” the Court said.

Senior Advocate Sudhir Nandrajog, appearing on behalf of Jatinder Pal Singh, had submitted that the recordings of the alleged telephonic conversations were intercepted and recorded illegally and hence no reliance could be placed on it. He placed reliance upon a Bombay High Court judgment in Vinit Kumar vs Central Bureau of Investigation, 2019 SCC Online Bom 3155, whereby the Court had come down heavily on illegal telephone tapping and interception of messages and stated that government officials are not authorised to violate any directions of the Supreme Court or mandatory statutory rules in order to secure evidence against citizens. This, according to the Court, would lead to manifest arbitrariness and promote scant regard to the procedure and fundamental rights of the citizens, and the law laid down by the apex court.

He further argued that the amount of Rs 2,17,75,000 recovered by income tax authorities was well accounted for as it formed part of the advance received by the petitioner towards sale of his land situated at village Maghrauli Khadar, Dospur Pargana Dadri, District Faridabad.

Upon the acquittal of Dr. Desai, the High Court opined: “Thus, in an offence alleging conspiracy, where the main conspirator has been discharged and in the absence of evidence implicating the petitioner as a co-conspirator alleged to be a middle-man, there is no point in continuing with the case and keep the entire criminal justice machinery running endlessly especially in light of the fact that the criminal proceedings had been initiated ten years back and has stayed pending ever since.”

—By Shashank Rai and India Legal Bureau

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