‘Statutory Provisions Are For Some Purpose, Not For Fun’: Rajasthan High Court Quashes Phone Tapping Orders

The Rajasthan High Court has quashed the three interception orders for phone tapping of a private individual, issued by authorities in the state in 2020-2021 on the ground of “public safety” in exercise of power under Section 5(2) of the Indian Telegraph Act 1885.

"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," said the court.

The petitioner, Shashikant Joshi’s mobile phone was ordered to be intercepted on suspicion that it was possibly being used for “illegal activity relating to incitement to the commission of an offence affecting public safety” for 60 days and extended for another 60 days.

Observing 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, the bench of Justice Birendra Kumar said:

“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 In other words, required mandates could not have been ignored or superceded by the State or its machinery leading to offend the right under Article 19 and 21 of the Constitution of India.”

It added: "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."

In 2022, Joshi challenged the interception orders on the ground that his right to privacy has been infringed by putting his mobile phones and others on surveillance. The orders are violative of Article 19 and 21 of the Constitution of India unless the same are consistent with the procedure established by law, it was argued.

The court noted that on the basis of information gathered on interception of mobile calls, an FIR was registered in 2021 under Section 7 and 8 of the Prevention of Corruption Act as well as under Section 201 and 120B of the IPC with the Anti Corruption Bureau Police Station, Jaipur.

Justice Kumar said on bare perusal of the call details disclosed in the FIR, it is evident that there is no direct evidence against the petitioner of having indulged in bribing any public servant and rather in the purported trap proceeding, no graft money was recovered from possession of any of the accused persons including the petitioner.

Perusing the impugned orders, the Court said “it is indicative enough that no circumstance has been disclosed ventilating the objective satisfaction that the impugned orders were necessary for public safety. In absence of disclosure of such material, no prudent person can reach to a conclusion that in fact, it was a case of “in the interest of public safety.” Moreover, no reason has been recorded in writing as required by Section 5(2) of the Indian Telegraph Act.”

The court placed reliance upon the decision of Apex Court in the landmark case of K.S. Puttaswamy Vs. Union of India, (2017) to state that, “the proposition that illegal tapping of phone conversation violates right to privacy is already accepted by a 9 Judges Constitution Bench decision in the case.”

Considering the argument of the petitioner, the court said, “I find force in the submission of learned counsel for the petitioner that impugned orders were never sent to the Review Committee which ought to have been sent within statutory period and the Review Committee was also expected to take decision on the validity of the impugned orders within a specified period.”

“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,” observed the court.

The impugned 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 has persuaded the authority to pass the impugned orders, the bench said.

Referring to Sub-rule (3) of Rule 419A of Telegraph Amendment Rules, 2007 which requires that the authority passing any order under Section 5 (2) of the Telegraph Act shall consider possibility of acquiring the information by other means and the direction under sub-rule (1) shall be issued only when it is not possible to acquire the information by any other reasonable means, the court said, “In the case on hand, merely a bald statement has been recorded that acquisition of information is not possible by any other means.”

Case Title: Shashikant Joshi v. State Of Rajasthan & Ors

For Petitioner: Advocates Swadeep Singh Hora, Mohit Khandelwal, T.C. Sharma, Vishivas Saini.

For Respondents : Atul Sharma, Dy.G.A.

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