Source – financialexpress.com<\/p>\n\n\n\n
At a time when governments\u2014at the Centre and the states\u2014are looking at tracking even social media messages, the Bombay High Court has done well to reiterate an individual\u2019s right to privacy and to rule that even tapping of phones that has been signed off by government officials is unlawful if it doesn\u2019t meet certain criterion. The case involves a south Mumbai businessman whom the CBI believed was bribing bank officials to get some favours in connection with a loan. The agency decided to tap his phone and, in fact, three such orders were issued; in October 2009, December 2009 and then again in February 2010. The businessman, however, approached the court to get the records destroyed since, he argued, the tapping was illegal.<\/p>\n\n\n\n
The court has concurred with this and cited various rulings, starting with the famous PUCL one, to support its contention. \u201cBut the right to hold a telephone conversation in the privacy of one\u2019s home\u201d, the Supreme Court had ruled, \u201cor office without interference can certainly be claimed as \u2018right to privacy\u2019\u201d. Tapping of phones, the SC had ruled, violated a citizen\u2019s rights under Article 21 \u201cunless it is permitted under the procedure established by law\u201d. This procedure involves the setting up of a review committee comprising the<\/p>\n\n\n\n
Cabinet\/Law\/Telecom secretary at the central government level\u2014it is headed by the chief secretary at the state level\u2014which was to, within two months, review the tapping order and see whether this passes the conditions laid down under Section 5(2) of the Telegraph Act. Section 5(2), in turn, talks of how there has to be either a \u201cpublic emergency\u201d or the tapping has to be \u201cin the interest of public safety\u201d. In the case of the Mumbai businessman, the tapping orders were issued with \u201cpublic safety\u201d as the objective.<\/p>\n\n\n\n
The Bombay High Court has pointed out that while there are several SC judgments that do not think tapping of telephone conversations violates privacy\u2014which is a fundamental right\u2014a 9-judge bench in KS Puttaswamy had accepted this principle in 2017, and this overruled earlier Constitution Bench judgments. Any infringement of the right to privacy, the court said, would have to meet certain tests; it had to be sanctioned by law, it must be necessary, it must be proportionate to the need for it and there must be procedural guarantees against the abuse of such powers.<\/p>\n\n\n\n
In this particular case, the Bombay High Court said, the tapping orders were not referred to the review committee which could ascertain whether they met the prescribed standards. The government officials, the court added, were not able to show that there was any risk to \u201cthe people at large\u201d, nor could they show that the move was in the \u201cinterest of the public safety\u201d. While not following proper procedure in this case was enough reason for the court to quash the tapping orders and to order that the transcripts be destroyed, it is not clear if the future benchmark for tapping is going to be just \u2018public emergency\u2019 and \u2018public safety\u2019; if it is, the taxman or the Enforcement Directorate may find it difficult to get permission to tap phones in future. With the Supreme Court now hearing cases about whether social media messages should be traceable, and whether lawful intercepts should be allowed, the issue of the right to privacy\u2014and how absolute it is\u2014will come up again; in which case, there will be some more clarity on the issue.<\/p>\n