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Phone Tapping under Indian Telegraph Act, 1885

03 Jul 2025 GS 2 Polity

Phone Tapping Cannot Be Used for Crime Detection: Madras High Court 

Context:
In a significant ruling with constitutional implications, the Madras High Court (Justice N. Anand Venkatesh) rejected the Union Ministry of Home Affairs' plea to broaden the scope of Section 5(2) of the Indian Telegraph Act, 1885 to allow phone tapping for detecting crimes like corruption.

Key Legal Provisions Involved:

  • Section 5(2), Indian Telegraph Act, 1885:
    Permits phone interception only under two contingencies:

    1. Public emergency

    2. Public safety

  • Article 21, Constitution of India:
    Right to privacy is recognised as a fundamental right under this article (as held in PUCL 1996 and reaffirmed in K.S. Puttaswamy 2017 cases).

Observations of the Court:

  • The right to privacy is a part of fundamental rights, and phone tapping is an invasion unless strictly within the bounds of law.

  • Courts are gatekeepers, not gate-makers — they cannot expand the legislative scope of Section 5(2) to accommodate crime detection.

  • Tapping phones for detecting crimes, even for noble reasons like anti-corruption, cannot be justified without public emergency or threat to public safety.

  • The boundaries for state surveillance must be defined by the legislature, not by judicial discretion.

Case Outcome:

  • The court allowed a 2018 petition by P. Kishore (Everonn Education Ltd.), challenging the 2011 interception order by the Union Home Secretary, which had led to arrest of an Income Tax official in a bribery case.

  • Held that:

    • There was no public emergency/public safety to justify interception.

    • The Home Secretary’s order was unconstitutional and violated Section 5(2).

    • The intercepted calls cannot be used as evidence in any criminal trial.

Significance :

  • Highlights judicial safeguards on right to privacy and limitations on state surveillance.

  • Reinforces constitutional doctrine of proportionality and necessity.

  • Emphasizes the role of judiciary as a constitutional sentinel, ensuring executive accountability.



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