Supreme Court of India
PEOPLE'S UNION FOR CIVIL LIBERTIES {PUCL)versusUNION OF INDIA AND ANR.
- Citation
- 1996 INSC 1509
- Decided
- 18 December 1996
- Disposal
- Disposed off
- Bench
- KULDIP SINGH
Holding
Section 5(2) of the Indian Telegraph Act, in the absence of procedural rules under Section 7(2)(b), violates Articles 19(1)(a) and 21 and is therefore unconstitutional, necessitating specific procedural safeguards pending rule‑making.
Summary
The People's Union for Civil Liberties filed a public‑interest writ petition challenging the constitutional validity of Section 5(2) of the Indian Telegraph Act, 1885, which permits telephone interception in cases of public emergency or public safety. The petition argued that telephone tapping infringes the right to privacy under Articles 19(1)(a) and 21 of the Constitution and that the Act lacks procedural safeguards, violating the requirement of a just, fair and reasonable law. The Court examined the scope of the right to privacy, its recognition under international covenants, and the need for a procedural framework under Section 7(2)(b) of the Act. It held that without such rules, the power to intercept is arbitrary and unconstitutional, and therefore imposed detailed procedural safeguards pending rule‑making. The Court directed that orders for interception may be issued only by the Home Secretary (or delegated officers), must be recorded, limited in duration, reviewed by a committee, and that the government must frame appropriate rules. The writ petition was disposed of with no costs.
Issues considered
- The constitutional validity of Section 5(2) of the Indian Telegraph Act, 1885.
- Whether telephone interception violates the right to privacy under Article 21.
- Whether telephone interception infringes freedom of speech and expression under Article 19(1)(a) without satisfying the reasonable‑restriction test of Article 19(2).
- The necessity of procedural safeguards and rules under Section 7(2)(b) to make the power under Section 5(2) compliant with "procedure established by law".
Legislation cited
- Indian Telegraph Act, 1885s. 5(2), s. 7(2)(b)
Subjects
right to privacytelephone tappingIndian Telegraph ActArticle 21Article 19procedural safeguardsfundamental rightspublic emergencypublic safetyinterception
Judgment
PEOPLE'S UNION FOR CIVIL LIBERTIES {PUCL) A
v.
UNION OF INDIA AND ANR.
DECEMBER 18, 1996
[KULDIP SINGH AND S. SAGHIR AHMAD, JJ.] B
Constitution of India, 1950: Articles 14, 32, 19(1)(a) & (2).
Right to privacy-Telephonic conversatio11 in privacy-Held : fanned
part of right to privacy protected by Art. 21 and Art. 17 of International C
Covenant on Civil and Political Rights->4.lso covered by freedom of speech
and expression under Art. 19(1)(a)-Telephone tapping under S.5(2) of
· Telegraph Act amounted to infraction of Fundamental Rights-Therefore, it
could be resorted to only in accordance with procedure established by law
which must be just, fair and reasonable-Should also be within reasonable
restriction under Art. 19(2)--Further, interceptio11 of telephonic messages D
pennitted under S.5(2) of the Telegraph Act must confonn to conditions laid
down by S.5(2) for such interception-Indian Telegraph Act, 1885, Ss .. 5(2)
& 7(2)(b)-{nternational Covenant on Civil and Political Rights, 1966, Art.
17-Universal Declaration of Human Rights, 1948, Art. 12.
E
Human Rights->4.rt. 21 must be interpreted i11 confonnity with I11terna-
tio11al Covena11t 011 Civil and Political Rights, 196fr-Art. 12 of the Universal
Declaration of Human Rights, 1948 is also similar to Art. 17 of 1966
Covenant.
Indian Telegraph Act, 1885: Sections 5(2) and 7(2)(b). F
Telegraphic messages/tapping of telephone conversation-l11terception
of-Resorting to under S.5(2)-Held: "Occurrence of any public emergency"
or "in the interest of public safety" was condition precedent in addition to
existence of any of the grounds specified in Art. 19(2)-0rder recording such
satisfaction in writing necessary-Substantive law in S.5(2) clearly laid down G
situations/conditions for interception of messages/conversation~ui in the
absence of rules under S.7(2)(b) laying down just, fair and reasonable
procedure for exercise of power under S.5(2), rights guranteed under Arts.
19(l)(a) and 21 could not be safeguarded-Central Government should,
therefore, make rules on the subject-But till such rules were made, procedural ., H
321
322 SUPREME COURT REPORTS[1996) SUPP.10 S.C.R.
A safeguards laid down by Supreme Court for exercise of power under S.5(2) to
be followed-However, prior judicial scrntiny could not be provided as a
procedural safeguard for issuing order for telephone tapping in absence of any
provision in that regard in the statute.
International Law :
B
Scope-Not confined to regulating relations between States-But ex-
tended to matters of social concern such as health, education and economics
apart from human rights.
C Customary International Law-Rules of-Held : if not contrary to
Municipal Law shall be deemed to be incorporated in domestic law.
Words and Phrases :
"Right to Privacy" - Meaning of
D
"Public emergency" and "Public safety" - Meaning of - In the context of
the Indian Telegraph Act, 1885.
The petitioner, a voluntary organisation, filed the pres~nt writ peti-
E tion • public interest - in the wake of the report on ''Tapping of politicians'
phones" by the Central Bureau of Investigation (CBI). The petitioner had
challenged the Constitutional validity of Section 5(2) of the Indian
Telegraph Act, 1885.
On behalf of the petitioner it was contended that right to privacy was
F a fundamental right guaranteed under Articles 19(1) and 21 of the Con-
stitution of India; and that Section 5(2) of the Act be suitably read-down
to include procedural safeguards to rule out arbitrariness and to prevent
the indiscriminate telephone-tapping.
On behalf of the respondents it was contended that the interest of
G the security and sovereignty of India and to deal with any other emergency
situation for the protection of national interest, messages might indeed be
intercepted; and that Section 5(2) of the Act clearly laid down the condi-
tions/situations which were sine qua non for the exercise of the power but
the manner in w~ich the said power could be exercised had not been
H provided.
P.U.C.L. V. U.O.I. 323
Disposing of the petition, this Conrt A
HELD : 1.1. Right to privacy is a part of the right to "life" and
"personal liberty" enshrined under Article 21 of the Constitution. Once the
a
facts in given case constitute a right to privacy, Article 21 is attracted.
The said right cannot be curtailed "except according to procedure estab-
lished by law". [336-H; 337-A] B
Kharak Singh v. State of U.P. & Ors., [1964] 1 SCR 332; R. Rajagopal
&Anr. v.StateofT.N., [1994] 6 SCC 632 and Govind v.State of M.P., [1975]
2 sec 148, followed.
. Munn v. Illinois, (1877) 94 U.S.113 and Wolf v. Colarado, (1949) 338 C
U.S. 25, cited.
1.2. The right to privacy - by itself - has not been identified under the
Constitution. As .a concept it may be too broad and moralistic to define it
judicially. Whether right to privacy can be claimed or has been infringed in D
a given case would depend on fhe facts of the said case. But the right to hold
a telephone conversation in the privacy of one's home or office without
interference can certainly be claimed as "right to privacy". Conversation on
the telephone are often of an intimate and confidential character. Telephone-
conversation is a part of modern man's life. Telephone conversation is an
important facet of a man's. private life. Right to privacy would certainly E
include telephone-conversation in the privacy of one's home or office.
Telephone-tapping would, thus, infractArticle21 of the Constitution oflndia
unless it is permitted under the procedure established by law. [337-A-D]
1.3. India is a signatory tll the International Covenant in Civil and
Political Rights, 1966. Article 17 thereof provides for right to privacy. Article 12 F
of the Universal Declaration of Human Rights, 1948 is almost in similar terms.
· Article 17 of the International Covenant does not go contrary to any part ofour
Municipal law. Article 21 of the Constitution: has, therefore, been interpreted in
conformity with the International law. [337-E-F; 337-G-H; 339-C]
G
Kesavanand Bharathi v. State of Kera/a, [1973] Supp. SCR 1, and
ADM Jabalpur v. S. Shukla and Jolly George Varghese v. Bank of Cochin,
AIR (1980) SC 470, relied on.
2.1. International law today is not confined to regulating the rela-
tions between the States. Scope continues to extend. Today matters of H
324 SUPREME COURT REPORTS(1996) SUPP. 10 S.C.R.
A social concern, such as health, education and economics apart from
human rights fall within the ambit of International Regulations. Interna-
tional law is more than ever aimed at individuals. It is almost an accepted
proposition of law that the rules of customary international law which are
not contrary to the municipal law shall be deemed to be incorporated in
B the domestic law.[337-H; 338-A-B]
2.2. Right to freedom of speech and expression is guaranteed under
Article 19(1)(a) of the Constitution. This freedom means the right to ex-
press one's convictions and opinions freely by word of mouth, writing,
printing, picture, or in any other manner. When a person is talking on
C telephone, he is exercising his right to freedom of speech and expression.
Telephone-tapping unless it comes within the grounds ofrestrictions under
Article 19(2) would infract Article 19(1) (a) of the Constitution. [337-D-E]
2.3. The constitutional vires of Section 5.(2) of the Indian Telegraph
D Act, 1885 has not been seriously challenged in this case. Section 5(2) of the
Act permits the interception of messages in accordance with the provisions
of the said Section. "Occurrence of any public emergency" or "In the
interest of public safety" are the sine qua non for the application of the
provisions of Section 5(2) of the Act. Unless a public emergency has
occurred or the interest of public safety demands, the authorities have no
E jurisdiction to exercise the powers under the said Section. Public emergen-
cy would mean the prevailing of a sudden condition or state of affairs
affecting the people at large calling for immediate action. The expression
"public safety" means the state or condition of freedom from danger or risk
for the people at large. When either of these two conditions are not in
F existence, the Central Government or a State Government or the
authorised officer cannot resort to telephone tapping. Even if the Central
Government is satisfied that it is necessary or expedient so tQ do in the
interest of the sovereignty and integrity of India or the security of the State
or friendly relations with sovereign States or public order or for preventing
incitement to the commission of an offence, it cannot intercept the mes~
G sages or resort to telephone tapping unless a public emergency has oc-
curred or the interest of public safety requires. Neither the occurrence of
public emergency nor the interest of public safety are secretive conditions
or situations would be apparent to a reasonable person. [340-D; 341-A]
H Hukum Chand Shyam Lal v. Union of India & Ors., [1976] 2 SCC
P.U.C.L. v. U.O.I. 325
I ,
128, relied on. A
3.1. The first step under Section 5(2) of the Act, therefore, is the
occurrence of any public emergency or th!! existence of a public-safety
interest. Thereafter the competent authority under Section 5(2) of the Act
is empowered to pass an order of interception after recording its ,satisfac·
tion that it is necessary or .expedient so to do in the interest of '(i) B
sovereignty and integrity of India, (ii) the security of the State, (iii) friendly
relations with foreign States, (iv) public order or (v) for preventing incite·
ment to the commission of an offence. When any of the five situations
mentioned above to tire satisfaction of the competent authority requires
than the said authority may pass the order for interception of messages by C
recording reasons in writing for doing so. [341-8-C]
3.2. Section 5(2) of the Act shows that so far the power to intercept
messages/conversations is concerqed the .Section clearly lays-down the
situations/conditions under which it can be exercised. But the substantive
law as laid down in S.5(2) of the Act must have procedural backing so that D
the exercise of power Is fair and reasonable. The said procedure must rule
out anything arbitrary, freakish or bizarre. A valuable constitutional right
can be ~analised only by civilised processes. [341-D·F]
. .
Maneka Gandhi v. Union of India, [1978) 2 SCR 621, relied on.
E
4.1. No rules have been framed under Section 7(2)(b) of the Act for
providing the precautions to be taken for preventing the improper inter·
ception or disclosure of messages. In the absence of just and fair procedure
for regnlating the exercise of power ·under Section 5 (2) of the Act, it is not
possible to safegnard the rights of the citizens gnaranteed under Articles
19(1) (a) and 21 of the Constitution of India. [341-G-H] F
4.2. In the absence of any provision in the statute, it is not possible
to provide for prior judidal scrutiny as a procedural safeguard. It is for
• the Central Government to make rules under Section 7(2)(b) of the Act.
The Act was enacted in the year 1885. The power to make rules under G
Section 7 of the Act has been there for over a century but the Central
Government has not thought it proper to frame the necessary rules despite
severe criticism of the manner in which the power under Section 5(2) has
been exercised. It is entirely for the Central Government to make rules on
the subject but till the time it is done the right to privacy of an individual
has to be safegnarded. In ocder to rule-out arbitrariness in the exercise of H ·
326 SUPREME COURT REPORTS[l996] SUPP.10 S.C.R.
A power-under Section 5(2) of the Act and till the time the Central Govern·
ment lays down just, fair and reasonable procedure under Section 7(2)(b)
of the-Act, it is necessary to lay down procedural safeguards for the exercise
of power under Section 5(2) of the Act so that the right to privacy of a
person is protected. Accordingly, the following orders and directions are
B issued, -[344-E; 345-A]
'
1. An order for telephone-tapping in terms of _Section 5(2) of the Act
shall not be issued except by the Home Secretary, Government of India
(Central Government) and Home Secretaries ofthe State Governments. In
an urgent case the power may be delegated to an officer of the Home
C Department of the Government of India and the State Governments not
below the rank of Joint Secretary. Copy of the order shall be sent to the
Review Committee concerned within one week of the passing of the
order.[345-B-C]
2. The order shall require the "person to whom it is addressed to
D intercept in the course of their transmission by means of a public telecom-
munication system, such communications as are described in the order.
The order may also require the person to whom it is addressed to disclose
the intercepted material to such persons and in such manner as are
described in the order. [345-C·D]
E
3. The matters to be taken into account in considering whether an
order is necessary under Section 5(2) of the Act shall include whether the
information which is considered necessary to acquire could reasonably be
acquired by other means. [345-D-E]
F 4. The interception required under Section 5(2) of the Act shall be
interception of such communications as are sent to or from one or more
addresses likely to be used for the transmission of communication to or
from, from one particular person specified or described in the order or one
particular set of premises specified or described in the order. [345-E-F]
G 5. The order under Section 5(2) of the Act shall, unless renewed,
ceases to have effect at the end of the period of two months from the date
of issue. The authority which issued the order may, at any time before the
end of two month period renew the order if it considers that it is necessary
to continue the order in terms of .Section 5(2) of the Act. The total period
H for the operation of the order shall not exceed six months. [345-F·G]
P.U.C.L. v. U.0.1. 327
6. The authority which issued the order shall maintain the following A
records : (345· HJ
(a) the intercepted communications. (346-A]
(b) the extent to which the material is disclosed. (346-A]
B
(c) the number of persons and their identity to whom any of the
material is disclosed. (346-B]
(d) the extent to which the material is copied and [346·B]
(e) the number of copies made of any of the material. (346-B] c
7. The use of the intercepted material shall be limited to the mini·
mum that is necessary in terms of Section 5(2) of the Act. (346-C]
8. Each copy made of any of the intercepted material shall be D
destroyed as soon as its retention is no longer necessary in terms of
Section 5(2) of the Act. (346-C-D]
9. There shall be a Review Committee consisting of Cabinet
Secretary, tlie Law Secretary and the Secretary, Telecommunication at the
level of the Central Government. The Review Committee at the State level E
shall consist of Chief Secretary, Law Secretary and another member, other
than the Home Secretary, appointed by the State Government. (346-D-E]
(a) The Committee shall on its own, within two months of the passing
of the order by the authority concerned, investigate whether there is or has
been a relevant or"der under Section 5(2) of the Act Where there is or has F
been an order whether there has been any contravention of the provisions
of Section 5(2) of the Act. (346-E-F]
j'
(b) If on an investigation the Committee concludes that there has
been a contravention of the provisions of Section 5 (2) of the Act, it shall G
set aside the order under scrutiny of the Committee. It shall further direct
the destructio~ of the copies of the intercepted.material. (346-F·G]
(c) If on investigation, the Committee comes to the conclusion that
there has been no contravention of the provisions of Section 5(2) of the
Act, it shall record the finding to that effect. (346-G] H
328 SUPREME COURTREPORTS(l996) SUPP.10 S.C.R.
A CIVIL ORIGINAL JURISDICTION : Writ petition (C) No. 256 of
1991.
·(Under Article 32 of the Constitution of India.)
Kapil Sibal and Rajinder Sachher, Ms. Rashmi Kapadi and Sanjay
B Parikh for the Petitioner.
Venugopal Reddy, P. Parmeswaran, Hemant Sharma and Ms. Anil
Katiyar for the Respondents.
The Judgment of the Court was delivered by
c
KULDIP SINGH; J. Telephone - Tapping is a serious invasion of an
individual's privaC}'.. With the growth of highly sophisticated communica-
tion technology, the right to hold telephone conversation, in the privacy of
one's home or office without interference, is increasingly susceptible to
abuse. It is no doubt correct that every Government, howsoever
D democratic, exercises some degree of subrosa operation as a part of its
intelligence out-fit but at the same time citizen's right to privacy has to be
protected from being abused by the authorities of the day.
This petition - public interest· - under Article· 32 of the Constitution
E of India has been filed by the people's Union of Civil Liberties, a voluntary
organisation,.high lighting the incidents of telephone tapping in the recent
past. The petitioner has challenged the constitutional validity of Section
5(2) of the Indian Telegraph Act, 1885 (the Act), in the alternative it is
contended that the said provisions be suitably read-down to include pro-
cedural safeguards to rule out arbitrariness and to prevent the indis-
F criminate telephone-tapping.
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
G 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. Para 21 and 22 of the
report are as under :-
"21. Investigation has revealed the following lapses on the part of
H MTNL
P.U.C.L. v. U.O.I. [KULDIP SINGH,J.] 329
(i) In respect of 4 telephone numbers through they were shown to A
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 B
from various ·authorised agencies were available, these numbers
. have not been shown in list, supplied by MTNL showing intercep-
tion of telephones to the corresponding period. This shows that
lists supplied were incomplete.
c
(iii) In respect of 133 cases, interception of the phones were done
beyond the authorised part. The GM (0), MTNL in is explanation
has sciid 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. D
(iv) In respect of 111 cases, interception of telephones have ex-
ceeded 180 days period and no permission of Government for
keeping the telephone under interception beyond 180 days was
taken. E
(v) The files pertaining to interception have not been maintained
properly.
22. Investigation has also revealed that various authorized agencies
are not maintaining the files regarding interception of telephones F
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 G
not contain all the relevant information. In the case of agencies
other than LB., the returns are submitted to the MHA.
The periodicity of maintenance of the records is not uniform. It
has been found that whereas ORI keeps record for the last 5 years,
in case of LB., as soon as the new quarterly statement is prepared, H
330 SUPREME COURT REPORTS[l996] SUPP.10 S.C.R.
A the old returns are destroyed for reasons of secrecy. The ....
desirability of maintenance of uni-return and periodicity of these
documents needs to be examined.
Section 5(2) of the Act is as under :-
B "5(2) - On the occurrence of arry public emergency, or in the
interest of public safety, the Central Government or a State
Government or any Officer specially authoris~d in this behalf by
the Central Govt. or a State Government may, if satisfied that it
is necessary or expedient so to do in the interests of the sovereignty
and integrity of India, the security of the State, friendly relations
c wit}l foreign States or public order or for preventing incitement to
the commission of an offence, for reasons to be recorded in writing,
by order, direct that any message or class of messages to or from
any person or class of persons, or relating to any particular subject,
brought for transmission by or transmitted or received by any
D telegraph, shall not be transmitted, or shall be intercepted or
detained, or shall be disclosed to the Government making the
order or an officer thereof mentioned in the order :
Provided that press messages intended to be published in India
of correspondents accredited to the Central Government or a State
E Government shall not be intercepted or detained, unless their
transmission has been prohibited under this sub-section".
The above provisions clearly indicate that in the event of the occur-
rence of a public emergency or in the interest of public safety the Central
F Government or the State Government or any officer specially authorise~
in this behalf, can intercept messages if satisfied that it'is necessary or
expedient so to do in the interest of :
(i) The sovereignty and integrity of India.
G (ii) The security of the State.
(iii) Friendly relations with foreign states.
(iv) Public order.
H (v) For preventing incitement to the commission of an offence.
P.U.C.L. v. U.0.1. [KULDIP SINGH, J.] 331
The CBI report indicates that under the above provisions of law A
Director Intelligence Bureau, Director General Narcotics Control Bureau,
Revenue Intelligence and Central Economic Intelligence Bureau and the
Director Enforcement Directorate have been authorised by the Central
Government to do interception for the purposes indicated above. In addi-
tion, the State Governments generally give authorisation to the Police/In- B
telligence agencies to exercise the powers under the Act.
The Assistant Director - General, Department of Telecom has filed
counter affidavit on behalf of the Union of India. The stand taken by the
Union of India is as under :
'The allegation that the party in power at the Centre/State or
c
officer authorised to tap the telephone by the Central/State
Government could misuse this power is not correct. Tapping of
telephone could be done only by the Central/State Government
orser by the Officer specifically authorised by the Central/State
Government on their behalf and it could be done only under D
certain conditions such as National Emergency in the interest of
public safety, security of State, public order etc. It is also necessary
to record the reasons for tapping before tapping is resorted to. If
the party, whose telephone is to be tapped is to be informed about
this and also the reasons for tapping, it will defeat the very purpose E
of tapping of telephone. By the very sensitive nature of the work,
it is absolutely necessary to maintain secrecy in the matter. In spite ·
of safeguards, if there is alleged misuse of the powers regarding
tapping of telephones by any authorised officer, the aggrieved part
could represent to the State Government/Central Government and
suitable action could be taken as may be necessary. Striking down F
the provision Sections 5(2) of the Indian Telegraph Act, is not
desirable as it will jeopardise public interest and security of the
State".
Section 7 (2)(b) of the Act which gives rule making power to the G
Central Government is as under :-
"7. Power to make rules for the conduct of telegraphs - - (1) The
Central Government may, from time to time, by notification in the
Official Gazette, make rules consistent with this Act for the con-·
duct of all or any telegraphs, established, maintained or worked H
332 SUPREME COURT REPORTS[1996] SUPP.10 S.C.R.
A by the Government or by persons licensed under this Act.
(2) Rules under this section may provide for all or any of the
following, among other matters, that is to say :-
(a) xxx xxx xxx
B
(b) the precautions to be taken for preventing the improper
interception or disclosure of messages".
No rules have been framed by the Central Government under the
provisions quoted above.
c
Mr. Rajinder Sachar, Sr. Advocate assisted by Mr. Sanjay Parikh
vehemently contended that right to privacy is a fundamental right guaran-
teed under Article 19(1) and Article 21 of the Constitution of India.
According to Mr. Sachar to save Section 5(2) of the Act from being
D declared unconstitutional it is necessary to read-down the said provision to
provide adequate machinery to safeguard the right to privacy. Prior judicial
sanction - ex-parte in nature - according to Mr. Sachar, is the only
safeguard, which can eliminate the element of arbitrariness or un-
re.asonableness. Mr. Sachar contended that not only the substantiv~ law but
also the procedure provided therein has to be just, fair and reasonable.
E
While hearing the arguments on September 26, 1995, this Court
passed the following order :
"Mr. Parikh is on his legs. He has assisted us in this matter for
about half an hour. At this stage, Mr. Kapil Sibal & Dr. Dhawan,
F who are present in Court, stated that according to them the matter
is important and they being responsible members of the Bar, are
duty bound to assist this Court in a matter like this. We appreciate
the gesture. We permit them to intervene in this matter. They need
a short adjournment to assist us.
G
The matter is adjourned to October 11, 1995".
While assisting this Court Mr. Kapil Sibal at the out set stated that
in the interest of the security and sovereignty of India and to deal with any
other emergency situation for the protection of national interest, messages
H may indeed be intercepted. According to him the core question for deter-
P.U.C.L. v. U.O.I. [KULDIP SINGH, J.] 333
mination is whether there are sufficient procedural safeguards to rule out A
arbitrary exercise of power under the Act. Mr. Sibal contended that Section
5(2) of the Act clearly lays down the conditions/situations which are sine
qua non for the exercise of the power but the manner in which the said
power can be exercised has not been provided. According to him proce-
dural safeguards - short of prior judicial scrutiny - shall have to be read in B
Section 5(2) of the Act to save it from the vice of arbitrariness.
Both sides have relied upon the seven-Judge Bench judgment of this
Court in Kharak Singh v. The State of U.P. & Ors., [1964) 1 SCR 332. The
question for consideration before this Court was whether "surveillance"
under Chapter XX of the U.P. Police Regulations constituted an infringe- C
ment of any of the fundamental rights guaranteed by Part III of the
Constitution. Regulation 236(b) which permitted surveillance by
"domiciliary visits at night" was held to be violative of Article 21 on the
ground that there was no "law" under which the said regulation could be
justified.
D
The word "life" and the expression "personal liberty" in Article 21
were elaborately considered by this Court in Kharak Singh's case. The
majority read "right to priyacy" as part of the right to life under Article 21
of the Constitution on the following reasoning :
E
"We have already extracted a passage from the judgment of Field,
J. in Munn v. Illinois, (1877) 94 U.S. 113, 142, where the learned
Judge Pointed out that "life" in the 5th and 14th Amendments of
the U.S. Constitution corresponding to Art. 21, means not merely
the right to the continuance of a person's animal existence; but a F
right to the possession of each of his organs-his arms and legs etc.
We do not entertain any doubt that the word "life" in Art. 21 bears
the same signification. Is then the word "personal liberty" to be
construed as excluding from its purview an invasion on the part of
the police of the sanctity of a man's home and an intrusion into
· his personal security and his right to sleep which is the normal G
comfort and· a dire necessity for human existence even as an
animal? It might not be inappropriate to refer here. to the words
of the preamble to the Constitution that it is designed to "assure
the dignity of the individual" and therefore of those cherished
human value as the means of ensuring his full development and H
334 SUPREME COURT REPORTS(1996) SUPP. 10 S.C.R.
A evolution. We are referring to these objectives of the framers
merely to draw attention to the concepts underlying the constitu-
tion which would point to such vital words as "personal liberty"
having to be construed in a reaso~able manner and to be attributed
that sense which would promote and achieve those objectives and
by no means to stretch the meaning of the phrase to square with
B
any preconceived notions or doctrinaire constitutional theories.
Frankfurter, J. observed in Wolf v. Colorado, (1949) 338 US 25 :
'
"The security of.one's privacy against arbitrary intrusion
by the police.......... is basic to a free society. It is therefore
c implicit in 'the concept of ordered liberty' and as such enfor-
ceable against the States through the Due Process Clause.
The knock at the door, whether by day or by night, as a
prelude to a search without authority of law but solely on the
authority of the police, did not need the commentary. of
recent history to be condemned as inconsistent with the
D conception of human rights enshrined in the history and the
basic constitutional documents of English-speaking peoples
..... We have no hesitation in saying that were a State affrrm-
atively to sanction such police incursion into privacy it would
run counter to the guaranty of the Fourteenth Amendment."
E
Murphy, J. considered that such invasion was against "the very
essence of a scheme of ordered liberty".
It is true that in the decision of the U.S. Supreme Court from
which we have made these extracts, the Court had to consider also
F the impact of a violation of the Fourth Amendment which reads.
"The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated; and no warrants· shall issue
but upon probable cause, supported by oath or affrrmation,
G and particularly describing the place to be searched, and the
persons or things to be seized."
and that our constitution does not in terms confer any like con-
stitutional guarantee. Nevertheless, these extracts would show that
H an unauthorised intrusion into a person's home and the distur-
P.U.C.L. v. U.O.I. [KULDIP SINGH, J.] 335
bance caused to him thereby, is as it were the violation of a A
common law right of a man - an ultimate essential of ordered
liberty, if not of the very concept of civilisation. An English Com-
mon Law maxim asserts tMV'every man's house is his castle" and
in Semayne's case (1604) 5 Coke 91, where this was applied, it was
stated that •ithe house of everyone is to him as his castle and fortress B
as well as for his defence against injury and violence as for his
repose". We are not unmindful of the fact that Semayne's case was
concerned with the law relating to executions in England, but the
passage extracted has a validity quite apart from the context of the
particular decision. It embodies an abiding principle which
transcends mere protection of property rights and expounds a C
concept of "personal liberty" which does not rest on any element
of feudalism or on any theory of freedom which has ceased to be
of value.
In our view cl.(b) of Regulation 236 is plainly violative of Art. D
21 and as there is no "law" on which the same could be justified it
must be struck down as unconstitutional."
Sul;Jba Rao J. (as the learned Judge then was) in his minority opini~n
also came to the conclusion that right to privacy was a part of Article 21
of the Constitution but went a step further and struck down Regulation 236 E
as a whole on the following reasoning; :
"Further, the right to personal liberty takes in not only a right
to be free from restrictions placed on his movements, but also free
from encroachments on his private life. It is true our Constitution F
does not expressly declare a right to privacy as a fundamental right,
but the said right is an essential ingredient of personal liberty.
Every democratic country sanctifies domestic life; it is expected to
give him rest, physical happiness, peace of mind and security. In
the last resort, a person's house, where he lives with his family, is
his "castle" : it is his rampart against encroachment on his personal G
liberty. The pregnant words of that famous Judge, Frankfurter J.,
in Wolf v. Colorado, (1949) 338 US 25, pointing out the importance
of the security of one's privacy against arbitrary intrusion py the
police, could have no less application to an Indian home as to an
American one. If physical restraints on. a person's movements H
336 SUPREME COURT REPORTS(l996] SUPP. 10 S.C.R.
A affect his personal liberty, physical encroachments on his private
life would affect it in a larger degree. Indeed, nothing is more
deleterious to a man's physical happiness and health than a calcu-
lated interference with his privacy. We would, therefore, define the
right of personal liberty in Art. 21 as a right of an individual to be =
free from restriction or encroachments on hi~ person, whether
B
those restriction or encroachments are directly imposed or in-
directly brought about by calculated measures. If so understood,
all the acts of surveillance under Regulation 236 infringe the
fundamental right of the petitioner under Art. 21 of the Constitu-
tion."
c
Article 21 of the Constitution has, therefore, been interpreted by all
the seven learned Judges in Kharak Singh's case (majority and the minority
opinions) to include that "right to privacy" is a part of the right to "protec-
tion of life and personal liberty" guaranteed under the said Article.
/
D In Govind v. State of Madhya Pradesh; [1975] 2 SCC 148, a three-
Judge Bench of this Court considered the constitutional validity of Regula-
tions 855 and 856 of the Madhya Pradesh Police Regulations which
provided surveillance by way of several measures indicated in the said
regulations. This Court upheld the validity of the regulations by holding
E that Article 21 was not violated because the impugned regulations were
"procedure established by law" in terms of the said article.
In R. Rajagopal alias R.R. Gopal and another v. State of Tamil Nadu,
[1994] 6 SCC 632, Jeevan Reddy, J. speaking for the Court observed that
in recent times right to privacy has acquired constitutional status. The
F learned Judge referred to Kharak's case, Govind's case and considered a
large number of American and English cases and finally came to the
conclusion that "the right to privacy is implicit in the right to life and liberty
guaranteed to the citizens of this country by Article 21. It is a "right to be
let alone". A citizen has a right "to safeguard the privacy of his own, his
G family, marriage, procreation, motherhood, child-bearing and education
among other matters".
We have, therefore, no hesitation in holding that right to privacy is
a part of the right to "life" and "personal liberty" enshrined under Article
21 of the Constitution. Once the facts in a given case constitute a right to
H privacy, Article 21 is attracted. The said right cannot be curtailed "except
P.U.C.L. v. U.0.1. [KULDIP SINGH, J.] . 337
according to procedure established by law''. A
The right to privacy - by itself - has not been identified under the
Constitution. As a concept it may be too broad and moralistic to define it
judicially. Whether right to privacy can be claimed or has been infringed
in a given case ·would depend on the facts of the said case. But the right
to hold a telephone conversation in the privacy of one's home or office B
without interference can certainly be claimed as "right to privacy". Conver-
sations on the telephone are often of an intimate and confidential charac-
ter. Telephone-conversation is a part of modern man's life. It is considered
-. so important that more and more people are carrying mobile telephone
instruments in their pockets. Telephone conversation is an important facet C
of a man's private life. Right to privacy would certainly include telephone-
conversation in the privacy of one's home or office. Telephone-tapping
would, thus, infract Article 21 of the Constitution of India unless it is
permitted under the procedure established by law.
Right to freedom of speech and expression is guaranteed under D
Article 19(1)(a) of the Constitution. This freedom means the right to
express one's convictions and opinions freely by word of mouth, writing,
printing, picture, or in any other manner. When a person is talking on
telephone, he is exercising his right to freedom of speech and expression.
Telephone-tapping unless it comes within the grounds of restrictions under E
Article 19(2) would infract Article 19 (1)( a) of the Constitution.
India is a signatory to the International Covenant on Civil and
Political Rights, 1966. Article 17 of the said covenant is as under :-
"Article 17 F
1. No one shall be subject to arbitrary or unlawful interference
with his privacy, family, human or correspondence, nor to lawful
attacks on his honour and reputation.
2. Every one has the right to the protection of the law against such G
interference or attacks."
Article 12 of the Universal Declaration of Human Rights, 1948 is almost
in similar terms.
International law today is not confined to regnlating the relations H
338 SUPREME COURT REPORTS[l996] SUPP.10 S.C.R.
A between the States. Scope continues to extend. Today matters of social
concern, such as health, education and economics apart from human rights
fall within the ambit of International Regulations. International law is more
than ever aimed at individuals.
It is almost an accepted proposition of law that the rules of cus-
B tomary international law whieh are not contrary to the municipal law shall
be deemed to be incorporated in the d.omestic law.
Article 51 of the Constitution directs that the State shall endeavour
to inter alia, foster respect for international law and treaty obligations in
C the dealings of organised peoples with one another. Relying upon the said
Article, Sikri, C.J in Kesavananda Bharathi v. State of Kera/a, [1973] Supp.
SCR 1, observed as under :-
"It seems to me that, in view of Article 51 of the directive principles,
this Court must interpret language of the Constitution, if not
D intractable, which is after all a municipal law, in the right of the
United Nations Charter and the solemn declaration subscribed to
by India."
InA.D.M. Jabalpur v. S. Shukla, Khanna J. in his minority opinion observed
E as under:-
"Equally well e8tablished is the rule of construction that if there
be a conflict between the municipal law on one side and the
international law or the provisions of any treaty obligation on the
other, the Courts would give effect to municipal law. If, however,
F two constructions of the municipal law are possible, the Courts
should leiln in favour of adopting such construction as would make
the provisions of the municipal law to be in harmony with the
international law on treaty obligations. Every statute, according to
this rule is interpreted, so far as its language permits, so as not to
be inconsistent with the comity of nations on the established rules
G of international law, and the Court will avoid a construction which
would give rise to such inconsistency unless compelled to adopt it
by plain and unambiguous language."
In Jolly George Varghese v. Bank of Cochin, AIR {1980) SC 470, Krishna
H Iyer, J. posed the following question :-
P.U.C.L. v. U.O.l. [KULDIP SINGH;J.] 339
"From the perspective of international law the question posed is A
whether it is right to enforce a contractual liability by imprisoning
a debtor in the teeth of Article 11 of the International Covenant
on Civil and Political Rights. The Article reads :
Nb one shall be imprisoned merely on the ground of inability to B
fulfil a contractual obligation."
The learned Judge interpreted Section 51 of the Code of Civil Procedure
consistently with Article 11 of tlie International Covtnant.
Article 17 of the International Covenant - quoted above - does not C
go contrary to any part of our Municipal law. Article 21 of the Constitution
has, therefore, been interpreted in conformity with the international law.
Learned counsel assisting us in this case have not seriously chal-
lenged the constitutional vires of Section 5(2) of the Act. In this respect it
would be useful to refer to the observations of this Court in Hukam Chand D
Shyam Lal v. Union of India & Ors., (1976] 2 SCC 128 :-
"Section 5(1) if properly construed, does not confer unguided and
unbridled power on the Central Government/State Government
specially authorised officer to take possession of any telegraph.
Firstly, the occurrence of a "public emergency" is'the sine qua non E
for the exercise of power under this section. As a preliminary step
to the exercise of further jurisdiction under this section the
Government or the authority concerned must record its satisfaction
as to existr.nce of such an emergency. Further, the existence of the
emergency which is a pre-requisite for the exercise of power under F
this section, must be a 'public emergency' and not any other kind
of emergency. The expression 'public emergency' has not been
defined in the statute, but contours broadly delineatmg its scope
and features are discernible from the section which as to be read
as a whole. In sub-section (1) the phrase 'occurrence of any public G
emergency' is connected with and is immediately followed by thi::
phrase "or in the interests of the public safety''. These two phrases
appear to take colour from each other. In the first part of sub-sec-
tion (2) those two phrases again occur in association with each
other, and the context further clarifies with amplification that a
'public emergency' within the contemplation of this section is one H
340 SUPREME COURT REPORTS(1996] SUPP.10 S.C.R.
A which raises problems concerning the interest of the public safety,
the sovereignty and integrity or India, the security of the State,
friendly relations with foreign States of public order or the preven-
tion of incitement to the commission of an offence. It is in the
context of these matters that the a,>propriate authority has to form
an opinion with regard to the occurrence of a 'public emergency'
B with a view to taking further action under this section. Economic
emergency is not one of those matters expressly mentioned in the
statute. Mere 'economic emergency' - as the High Court calls it -
may not necessarily amount to a 'public emergency' and justify
I action under this section unless it raises problems relating to the
c matters indicated in the section."
As mentioned above, the primary contention raised by the learned
counsel is to lay-down necessary safeguards to rule-out the arbitrary exer- ·'
1
cise of power under the Act.
D
Section 5(2) of the Act permits the interception of messages in
accordance with the provisions of the said Section. "Occurrence of any
public emergency'' or "in the interest of public safety" are the sine qua non
. for the application of the provisions of Section 5(2) of the Ar;t. Unless a
public emergency has occurred or the interest of public safety demands,
E the authorities have no jurisdiction to exercise the powers under the said
Section. Public emergency would mean the prevailing of a sudden condi-
tion or state of affairs affecting the people at large calling for immediate
action. The expression "public safety'' means the state or condition of
freedom from danger or risk for the people at large. When either of these
F two conditions are not in existence, the Central Government or a State
Government or the authorised officer cannot resort to telephone tapping
even though there is satisfactidf that it is necessary or expedient so to do
in the interests of sovereignty and integrity of India etc. In other words,
even if the Central Government is satisfied that it is necessary or expedient
so to do in the interest of the sovereignty and integrity of India or the
G security of the State or friendly relations with sovereign States or public
order or for preventing incitement to the commission of an offence, it
canno,t intercept the messages or resort to telephone tapping unless a
public emergency· has occurred or the interest of public safety or the
existence of the interest of public safety requires. Neither the occurrence
H of public emergency nor the interest of public safety are secretive condi-
P.U.C.L v. U.0.1. [KULDIP SINGH, J.] 341
tions or situations. Either of the situations would be apparent to a A
reasonable person.
The first step under Section 5(2) of the Act, therefore, is the occur-
rence. of any public emergency of the existence of a public-safety interest.
Thereafter the competent authority under Section 5(2) of the Act is B
empowered to pass an order of interception after recording its satisfaction
that it is necessary or expedient so to do in the interest of (i) sovereignty
and integrity of India, (ii) the security of the State, (iii) friendly relations
with foreign States, (iv) public order or (v) for preventing incitement to the
commission of an offence. When any of the five situations mentioned above
to the satisfaction of the competent authority require then the said C
authority may pass the order for interception of messages by recording
reasons in writing for doing so.
The above analysis of Section 5(2) of the Act shows that so far the
power to intercept messages/conversations is concerned the Section clearly D
lays-down the situations/conditions under which it can be exercised. But
the substantive law as laid do\vn in Section 5(2) of the Act must have
procedural backing so that the exercise of power is fair and reasonable.
The said procedure itself must be just, fair and reasonable. It has been
settled by this Court in Maneka Gandhi v. Union of India, [1978] 2 SCR
621, that "procedure which deals with the modalities of regulating, restrict- E
ing or even rejecting a fundamental right falling within Article 21 has to be
fair, not foolish, carefully designed to effectuate, not to subvert, the sub-
stantive right itselr'. Thus, understood, "procedure" must rule out anything
arbitrary, freakish or bizarre. A valuable constitutional right can be
canalised only by civilised processes". p
We are of the view that there is considerable force in the contention
of Mr. Rajinder Sachar, Mr. Kapil Sibal and Dr. Rajiv Dhawan that no
procedure has been prescribed for the exercise of the power under Section
5(2) of the Act. It is not disputed that no rules have been framed under G
Section 7(2)(b) of the Act for providing the precautions to be taken for
preventing the improper interception or disclosure of messages. In the
absence of just and fair procedure for regulating the exercise of power
under Section 5(2) of the Act, it is not possible to safeguard the rights of
the citizens guaranteed under Articles 19(1)(a) and 21 of the Constitution
of India. The CBI investigation has revealed several lapses in the execution H
342 SUPREME COURT REPORTS[l996] SUPP. 10 S.C.R.
A of the orders passed under Section 5(2) of the Act. Paras 21 and 22 of the
report have already been quoted in the earlier part of this judgment.
The Second Press Commission in paras 164, 165 and 166 of its report
has commented on the "tapping of telephont:s" as under :-
B "Tapping of Telephones
"164. It is felt in some quarters, not without reason, that not
infrequently the Press in general and its editorial echelons in
particular have to suffer tapping of telephones.
c
165. Tapping of telephones is a serious invasion of privacy. It is a
variety of technological eavesdropping. Conversations· on the
telephone are often of an intimate and confidential character. The
relevant statue, i.e., Indian Telegraph Act, 1885, a piece of ancient
D legislation, does not concern itself with tapping. Tapping cannot
be regarded as a tort because the law as it stands today does not
know of any general right to privacy.
166. This is a hardly satisfactory situation. There are instances
where apprehensions of disclosure of sources of information as
E well as the character of information may result in constraints on
freedom of information and consequential drying up of its source.
We, therefore, recommend that telephones may not be tapped
except in the interest of national security, public order, investiga-
tion of crime and similar objectives, under orders made in writing
F by the Minister concerned or an officer of rank to whom the power
in that behalf is delegated. The order should disclose reasons. An
order for tapping of telephones should expire after three months
from the date of the order. Moreover, within a period of six weeks
the order should come up for review before a Board constituted
on the lines prescribed in statutes providing for preventive deten-
~, G tion. It should be for the Board to decide whether tapping should
continue any longer. The decision of the Board should be binding
on the Government. It may be added that the Minister or his
delegates will be competent to issue a fresh order for tapping of
the telephone if circumstances call for it. The Telegraph Act
H should contain a clause to give effect to this recommendation".
I
P.U.C.L v. U.0.1. [KULDIP SINGH, J.) 343
While dealing with Section 5(2) of the Act, the Second Press Com- A
mission gave following suggestions regarding "public emergency'' and "in-
terest of public safety":
"160. It may be noticed that the public emergency mentioned in the
sub-section is not an objective fact. Some public functionary must B
determine its existence and it is on the basis of the existence of a
public emergency that .an authorised offic.ial should exercise the
power of withholding transmission of telegrams. We think that the
appropriate government should declare the existence of the public
emergency by a notification warranting the exercise of this power
and it is only after the issue of such a notification that the power C
of withholding telegraphic messages should be exercised by the
delegated authority. When such a notification is issued, the prin-
cipal officer of the telegraph office can be required to submit to
the District Magistrate, whom we consider tQ be the proper person
to be the delegate for exercising this power, such telegrams brought D
for transmission which are likely to be prejudicial to the interest
sought to be protected by the prejudicial to the interest sought to
be protected by the sub-section. Thereupon the District Magistrate
should pass an order in writing withholding or allowing the \fans-
mission of the telegram. We are suggesting the safeguard of a prior
notification declaring the existence of a public emergency because E
the power of the interception is a drastic power and we are loath
to leave the determination of the existence of a public emergency
in the hands of a delegate".
''We are of the view that whenever the power is exercised in the F
interest of public safety, it should, as far as possible, be exercised
by the concerned Minister of the appropriate government for one
month at a time extendible by Government if the emergency
continues. However, in exceptional circumstances the power can
be delegated to the District Magistrate.
G
163. We also think that as soon as an order is passed by the District
Magistrate withholding the transmission of a telegraphic message, ,
it shoUld be communicated to the Central or State Government,
as the case may be, and also to the sender and the addressee of
the telegram. The text of the order should be placed on the table H
344 SUPREME COURTREPORTS[l996] SUPP.10 S.C.R.
A of the respective State legislatures after three months. We recom-
mend that, as suggested by the Press Council of India in its annual
report covering 1969, the officer in charge of a telegraph office
should maintain a register giving particulars of the time of receipt,
the sender and addressee of every telegram which he refers to the
District Magistrate with recommendation of its withholding.
B '-S_imilarly, the District Magistrate should maintain a register of the
time receipt, contend and addressee of each telegram and record
his decision thereon, together with the time of the decision. Data
of this nature will help courts, if called upon, to determine the
presence or absence of mala fide in the withholding of telegrams".
c
According to Mr. Sachar the only way to safeguard the right of privacy of
an individual is that there should be prior judicial scrutiny before any order
for telephone-tapping is passed under Section 5(2) of the Act. He states
that such judicial scrutiny lllay be ex-parte. Mr. Sachar contended that the
D judicial scrutiny alone would take away the apprehension of arbitrariness
or unreasonableness of the action. Mr. Kapil Sibal, on the other hand, has
suggested various other safeguards - short of prior judicial scrutiny - based
on the law on the subject in England as enacted by the Interception of the
Communications Act, 1985.
E We agree with Mr. Sibal that in the absence of any provision in the
statute, it is not possible to provide for prior judicial scrutiny as a proce-
dural safeguard. It is for the Central Government to make rules under
Section 7 of the Act. Rule 7(2)(b) specifically provides that the Central
Government may make rules laying down the precautions to be taken for
p preventing the improper interception or disclosure of messages. The Act
was enacted in the year 1885. The power to make rules under Section 7 of
the Act has been there for over a century but the Central Government has
not thought it proper to frame the necessary rules despite severe criticism
of the manner in which the power under Section 5(2) has been exercised.
It is entirely for the Central Government to make rules on die subject but
G till the time it is done the right to privacy of an individual has to be
safeguarded. In order to rule-out arbitrariness in the exercise of power
under Section 5(2) of the Act and till the time the Central Government
lays down just, fair and reasonable procedure under Section 7(2)(b) of the •
Act, it is necessary to lay down procedural safeguards for the exercise of
H power under Section 5(2) of the Act so that the right to privacy of a person
P.U.C.L. v. U.0.1. (KUWIP SINGH, J.) 345
is protected. A
We, therefore, order and direct as under :
1. An order for telephone-tapping in terms of Section 5(2) of the Act
shall not be issued except by the Home Secretary, Government of India
(Central Government) and Home Secretaries of the State Governments. In B
an urgent .case the power may be delegated to an officer of the Home
Department of the Government of India and the State Governments not
below the rank of Joint Secretary. Copy of the order shall be sent to the
Review Committee concerned within one week of the passing of the order.
2. The order shall require the person to whom it is addressed to
c
intercept in the course of their transmission by means a public telecom-
munication system, such communications as are described in the order.
The order may also require the person to whom it is addressed to disclose
the intercepted material to such persons and in such manner as are
described in the order. D
3. The matters to be taken into account in considering whether an
order is necessary under Section 5(2) of the Act shall include whether the ·
information which is considered necessary to acquire could reasonably be
acquired by other means. E
4. The interception required under Section 5(2) of the Act shall be
the interception of such communications as are sent to or from one or more
addresses, specified in the order, being an address or addresses likely to
be used for the transmission of communications to or from, from one
particular person specified or described in the order or one particular set F
of premises specified or described in· the order.
5. The order under Section 5(2) of the Act shall, unless renewed,
cease to have effect at the end of the period of two months from the date
of issue. The authority which issued the order may, at.any time before the G
end of two month period renew the order if it considers that it is necessary
to continue the order in terms of Section 5(2) of the Act. The total period
for the operation of the order shall not exceed six months.
6. The authority which issued the order shall maintain the following
records: H
346 SUPREME COURT REPORTS(1996) SUPP. 10. S.C.R.
A (a) the intercepted communications,
(b) the extent to which the material is disclosed,
(c) the number of persons and their identity to whom any of the
material is disclosed.
B
( d) the extent to which the material is copied and
( e) the number of copies made of any of the material.
7. The use of the intercepted material shall be limited to the mini-
C mum that is necessary in terms of Section 5(2) of the Act.
8. Each copy made of .any of the intercepted material shall be
destroyed as soon as its retention is no longer necessary in terms of Section
5(2) of the Act.
D 9. There shall be a Review Committee cons1stmg of Cabinet
Secretary, the Law Secretary and the Secretary, Telecommunication at the
level of the Central Government. The Review Committee at the State level
.shall consist of Chief Secretary, Law Secretary and another member, ·other
than the Home Secretary, appointed by the State Government.
E (a) The Committee shall on its own, within two months of the passing
of the order by the authority concerned, investigate whether there is or
has been a relevant order under Section 5(2) of the Act. Where there is or
· has been an order whether there has been any contravention of the
provisions of Section 5(2) of the Act.
F
(b) If on an investigation the Committee concludes that there has
been a contravention of the provisions of Section 5(2) of the Act, it shall
set aside the order under scrutiny of the Committee. It shall further direct
the destruction of the copies of the intercepted material.
G ( c) If on investigation, the Committee comes to the conclusion that
there has been no contravention of the provisions of Section 5(2) of the
Act, it shall record the finding to that effect.
The writ petition is disposed of. No costs.
v.s.s. Petition disposed of.
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