[Answered] Recent High Court rulings on phone-tapping highlight its role in investigation. Critically examine the legal framework governing surveillance, balancing national security imperatives with citizens’ fundamental right to privacy.

Introduction

Surveillance is a critical tool for law enforcement and national security, yet it also poses significant risks to individual liberty. Recent High Court rulings reignite debates on legality, proportionality, and oversight.

The Legal Framework Governing Phone-Tapping in India

Surveillance in India is governed by a triad of legislations:

• Information Technology Act, 2000: Regulates the interception of digital communications (emails, messaging apps).
• Indian Post Office Act, 1898: Pertains to interception of postal communications.
• Indian Telegraph Act, 1885: Governs the interception of voice communications. Section 5(2) of the Telegraph Act permits interception during a “public emergency” or in the “interest of public safety” for specific grounds such as: sovereignty and integrity of India, security of the State, friendly relations with foreign states, public order, and preventing incitement to the commission of an offence.
• The constitutional backing lies in Article 19(2) (reasonable restrictions on free speech) and Article 21, interpreted to include the right to privacy, a fundamental right affirmed in S. Puttaswamy v. Union of India (2017).

Recent High Court Rulings: Contrasting Views

1. Delhi High Court (June 2024): Upheld CBI’s phone-tapping of an accused involved in a ₹2,149 crore corruption case. Held that economic offences at this scale could threaten public safety. Noted the pervasive impact of corruption on public trust, development, and institutional integrity.
2. Madras High Court (July 2024): Quashed an MHA interception order related to a ₹50 lakh bribery attempt. Emphasised a narrow interpretation of “public emergency”. Cited a 2011 PIB press note prohibiting surveillance for mere tax evasion. Highlighted non-compliance with procedural norms from the PUCL judgment (1997), declaring the tap unlawful and inadmissible in court.

Procedural Safeguards and Judicial Oversight

In People’s Union for Civil Liberties v. Union of India (1997), the Supreme Court laid down stringent conditions:

1. Interception must be authorised by the Home Secretary (Centre or State).
2. Committee review within two months (headed by Cabinet Secretary at Centre or Chief Secretary at State).
3. Interception is a last resort: it must be shown that the required information cannot be obtained by other means.
4. These have been codified under Rule 419A of the Indian Telegraph Rules (2007).

Balancing National Security and Privacy

1. National Security Needs: Intelligence gathering through surveillance helps detect terrorism, organised crime, and corruption. With increasing digitalisation, AI-based and cyber threats make real-time surveillance essential.
2. Concerns and Challenges: Vague terms like “public safety” lack precise legal definition, enabling executive overreach. Lack of independent oversight: Current review committees are executive-led, not judicial.
3. Technological challenges: End-to-end encryption (e.g., WhatsApp) has made interception harder, raising demands for backdoors, which may compromise privacy.

Global Best Practices

1. UK’s Investigatory Powers Act (2016) includes judicial commissioners for warrant approval.
2. US Foreign Intelligence Surveillance Act (FISA) requires secret courts to approve national security surveillance.
3. India’s absence of a data protection law with surveillance safeguards remains a critical gap, though the Digital Personal Data Protection Act, 2023 begins to address this space.

Way Forward

1. Enact a comprehensive surveillance framework with clear definitions and proportionality checks.
2. Establish independent judicial oversight over authorisations and reviews.
3. Strengthen parliamentary and civil society scrutiny of intelligence agencies.
4. Enhance transparency through periodic disclosure of aggregated surveillance data (with safeguards).

Conclusion

A robust surveillance mechanism must balance state security with personal liberty. Recent judicial scrutiny reiterates the need for legal reform, procedural safeguards, and independent oversight to preserve constitutional freedoms.