Source: Madras High Court 

Why in News? 

Recently, the Madras High Court in P. Kishore v. The Secretary to Government, addressed the crucial constitutional issues concerning phone tapping, privacy rights, and the legality of interception orders under the Indian Telegraph Act, 1885.  

• The judgment reaffirms that surveillance actions must meet strict legal criteria and cannot be used as routine tools in ordinary criminal investigations. Justice N. Anand Venkatesh underscored that the right to privacy is a fundamental right under Article 21, and unauthorized surveillance amounts to a serious violation of this right. 

What was the Background of P. Kishore v. The Secretary to Government (2025) Case? 

• Petitioner: P. Kishore, then Managing Director of M/s Everonn Education Limited, Chennai. 
• 12th August 2011: 
  • The Union Ministry of Home Affairs passed an interception order under Section 5(2) of the Telegraph Act, 1885 and Rule 419-A of the Indian Telegraph Rules, 1951, authorizing phone tapping of Kishore’s mobile (No. 98410-77377) citing "public safety" and "public order". 
• 29th August 2011: 
  CBI registered FIR RC MA1 2011 A 0033: 
  • A1: Andasu Ravinder (IRS officer) allegedly demanded a ₹50 lakh bribe from A2: P. Kishore (petitioner). 
  • A3: Uttam Bohra (friend of A1) was allegedly to transport the bribe. 
  • CBI intercepted A1 and A3 at A1's residence and recovered ₹50 lakh from a carton. Kishore was not present, and no money was recovered from him. 
• Investigation and Charge Sheet: 
  • CBI completed investigation and filed a final report before the Special CBI Court, Chennai in C.C. No. 3 of 2013. 
• 2014: Kishore challenged the phone tapping order in Criminal Petition No. 12404/2014. The High Court granted an interim stay. 
• 27th October 2017: Petition dismissed on technical grounds, allowing liberty to move under Article 226. 
• 10th January 2018: Kishore filed Writ Petition No. 143 of 2018 under Article 226 to: 
  • Quash the interception order. 
  • Declare intercepted communications as invalid and unconstitutional. 
• CBI and Centre’s Stand: 
  • Defended interception as necessary to detect and prevent corruption. 
  • Argued that bribery affects public safety by damaging the credibility of public institutions. 

What were the Court’s Observations? 

Right to Privacy and Phone Tapping: 

• Telephone tapping constitutes a violation of the right to privacy unless justified by a procedure established by law. 
• The right to privacy is part of Article 21 of the Constitution of India, 1950 (COI) and phone conversations are an essential part of modern life. 

On Section 5(2) of the Indian Telegraph Act, 1885: 

• Section 5(2) permits surveillance only when: 
  • There is a public emergency or interest of public safety. 
  • The surveillance is necessary in the interest of sovereignty, integrity, security of State, public order, etc. 
• The words of Section 5(2) of the Act cannot be strained to include detection of ordinary crime. 
• It was further held that: 
  • The interception order was a templated reproduction of Section 5(2) without any application of mind. 
  • There was no public emergency or threat to public safety in a routine bribery investigation. 

On Procedural Safeguards (Rule 419-A of the Telegraph Rules, 1951): 

• The intercepted material was not placed before the Review Committee, violating the Supreme Court's mandate.  

Final Judgment:  

• The interception order dated 12th August 2011 was quashed. 
• All telephonic communications intercepted pursuant to it declared invalid. 
• However, evidence gathered independently of the intercepted calls can be evaluated by the trial court on merits. 

What are the Legal Provisions in Relation to Phone Tapping in India?  

About:  

• Phone tapping or cell phone tracking/tracings an activity where a user's phone calls, and other activities are tracked using different software. 
  • This procedure is majorly carried out without the targeted person being notified of any such activity. 
• It can be done by authorities making a request to the service provider, which is bound by law, to record the conversations on the given number and provide these in real time through a connected computer. 
• However, Article 21 of the COI says that “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Power to Tap Phones: 

• State Level: 
  • In the states, police have the power to tap phones. 
• Central Level: 
  • Intelligence Bureau, Central Bureau of Investigation (CBI) Enforcement Directorate, Narcotics Control Bureau, Central Board of Direct Taxes, Directorate of Revenue Intelligence, National Investigation Agency Research and Analysis Wing (R&AW), Directorate of Signal Intelligence, Delhi Police Commissioner.

Laws governing Phone Tapping in India:

• The Indian Telegraph Act, 1885: 
  • According to Section 5(2) of the Act on the occurrence of any public emergency, or in the interest of public safety, phone tapping can be done by the Centre or states. 
  • The order can be issued if they are satisfied it is necessary in the interest of public safety, “sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence”. 
• Exception for Press: 
  • Press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section. 
  • The competent authority must record reasons for tapping in writing.

Authorization of Phone Tapping: 

• Phone tapping is authorized by Rule 419A of the Indian Telegraph (Amendment) Rules, 2007. 
  •  Rule 419A of the Indian Telegraph Rules, 1951 was implemented in March 2007 with specific safeguards. 
  • In the case of the Central Government: The order can be issued by an order made by the Secretary to the Government of India in the Ministry of Home Affairs. 
  • In the case of a State Government: By the Secretary to the State Government in-charge of the Home Department. 
• In Emergency Situation: 
  • In such a situation, an order may be issued by an officer, not below the rank of a Joint Secretary of India, who has been authorized by the Union Home Secretary, or the State Home Secretary. 
  • In remote areas or for operational reasons, if it is not feasible to get prior directions, a call can be intercepted with the prior approval of the head or the second senior-most officer of the authorized law enforcement agency at the central level, and by authorized officers, not below the rank of Inspector General of Police, at the state level. 
  • The order must be communicated within three days to the competent authority, who must approve or disapprove of it within seven working days. 
  • If confirmation from the competent authority is not received within the stipulated seven days, such interception shall cease.