Kuldip Singh, J. - (1.) Telephone - Tapping is a serious invasion of an individuals privacy. With the growth of highly sophisticated communication technology, the right to hold telephone conversation, in the privacy of ones home or office without interference, is increasingly susceptible to abuse. It is no doubt correct that every Government, howsoever democratic, exercises some degree of sub rosa operation as a part of its intelligence outfit but at the same time citizens right to privacy has to be protected from being abused by the authorities of the day.
(2.) This petition - public interest - under Article 32 of the Constitution of India has been filed by the Peoples Union of Civil Liberties, a voluntary organisation, highlighting the incidents of telephone tapping in the recent past. The petitioner has challenged the constitutional validity of Section 5 (2) of the Telegraph Act, 1885 (the Act), in the alternative it is contended that the said provisions be suitably read-down to include procedural safeguards to rule out arbitrariness and to prevent the indiscriminate telephone-tapping.
(3.) The writ petition was filed in the wake of the report on "Tapping of politicians phones" by the Central Bureau of Investigation (CBI). Copy of the report as published in the "Mainstream" Volume XXIX, dated March 26, 1991 has been placed on record along with the rejoinder filed by the petitioner. The authenticity of the report has not been questioned by the learned counsel for the Union of India before us. Paras 21 and 22 of the report are as under:- "21. Investigation has revealed the following lapses on the part of MTNL. i) In respect of 4 telephone numbers though they were shown to be under interception in the statement supplied by MTNL, the authorisation for putting the number under interception could not be provided. This shows that records have not been maintained properly. ii) In respect of 279 telephone numbers, although authority letters from various authorised agencies were available, these numbers have not been shown in list supplied by MTNL showing interception of telephones to the corresponding period. This shows that lists supplied were incomplete. iii) In respect of 133 cases, interception of the phones were done beyond the authorised part. The GM (O), MTNL in his explanation has said that this was done in good faith on oral requests of the representatives of the competent authorities and that instructions have now been issued that interception beyond authorised periods will be done only on receipt of written requests. iv) In respect of 111 cases, interception of telephones have exceeded 180 days period and no permission of Government for keeping the telephone under interception beyond 180 days was taken. v) The files pertaining to interception have not been maintained properly. 22. Investigation has also revealed that various authorised agencies are not maintaining the files regarding interception of telephones properly. One agency is not maintaining even the log books of interception. The reasons for keeping a telephone number on watch have also not been maintained properly. The effectiveness of the results of observation have to be reported to the Government in quarterly returns which is also not being sent in time and does not contain all the relevant information. In the case of agencies other than I. B., the returns are submitted to the MHA. The periodicity of maintenance of the records is not uniform. It has been found that whereas DRI keeps record for the last 5 years, in case of I. B., as soon as the new quarterly statement is prepared, the old returns are destroyed for reasons of secrecy. The desirability of maintenance of uni-(sic) return and periodicity of these documents needs to be examined. ;