Phone Tapping Without Public Emergency Or Public Safety Is Unconstitutional: Madras High Court Quashes Union Home Secretary's Interception Order

"Covert Surveillance Is Not a Ground for Phone Tapping Under Section 5(2)... Public Emergency and Public Safety Are Not Secretive Situations", Madras High Court Strikes Down Interception of Calls in Bribery Case, Declares Right to Privacy Cannot Be Sacrificed for Investigative Convenience. In a powerful reaffirmation of the constitutional right to privacy, the Madras High Court on July 2, 2025, in the case of P. Kishore v. Secretary to Government of India & Others, struck down a 2011 phone tapping order issued by the Union Home Secretary. The Court declared that the interception order — passed in connection with a bribery case — was issued without jurisdiction, violated Article 21 of the Constitution, and stood in direct contravention of Section 5(2) of the Indian Telegraph Act, 1885.

Justice N. Anand Venkatesh, while delivering the verdict, emphasized: “Telephone tapping constitutes a violation of the right to privacy unless justified by a procedure established by law.”

Calling the entire surveillance operation an “unconstitutional act,” the Court held that none of the preconditions required for lawful interception — namely, public emergency or public safety — were satisfied.

“The Shield of Privacy Cannot Be Breached in the Name of Crime Detection”

The petitioner, P. Kishore, then Managing Director of Everonn Education Ltd., was accused in a CBI investigation for allegedly conspiring to pay ₹50 lakhs in bribe to a senior IRS officer. Acting on an interception order dated 12 August 2011, the CBI monitored his phone and used the intercepted conversations to form the core of its prosecution.

The petitioner approached the High Court under Article 226, seeking to quash the interception order, arguing that:

“The order under Section 5(2) of the Telegraph Act was passed without application of mind and mechanically invoked terms like 'public safety' and 'public order', which have no relevance to the facts of this case.”

The Court agreed, observing:

“There appears to be no serious application of mind by the first respondent. The invocation of ‘public safety’ is clearly unsustainable. The facts disclose a covert operation. Such a situation can never be said to be apparent to a reasonable person.”

“Neither ‘Public Emergency’ Nor ‘Public Safety’ Are Secretive Conditions... Both Must Be Apparent to a Reasonable Person”: SC Doctrine Reaffirmed

Citing the landmark judgment in People’s Union for Civil Liberties v. Union of India, the Court reiterated the twofold test for interception under Section 5(2) of the Telegraph Act:

“Public emergency” or “interest of public safety” must first exist.
Only then can the Government, if satisfied, order interception in the interests of sovereignty, state security, public order, or to prevent incitement.

The Court emphasized that the interception order did not even attempt to show that these threshold conditions were met:

“The facts of this case do not disclose any emergency at all, let alone a public emergency. If such logic is accepted, every case under the Prevention of Corruption Act can be brought under the umbrella of ‘public safety’.”

The Court rejected the CBI’s argument that corruption undermines institutional reputation and thus affects public safety:

“This flawed interpretation of Section 5(2) cannot be accepted, particularly when the Government itself, in its 2011 Press Note, acknowledged that telephone tapping must comply strictly with the law laid down in PUCL.”

“Procedural Safeguards Are Not Optional – Review Committee Mechanism Under Rule 419-A Was Brazenly Ignored”

In a damning finding, the Court also held that the mandatory procedural requirements under Rule 419-A of the Telegraph Rules had been completely bypassed by the CBI.

“It is admitted by the respondents that the intercepted material was never placed before the Review Committee as required by Rule 419-A(17). This alone is fatal.”

The Court noted that the Supreme Court in Anuradha Bhasin v. Union of India had held such review procedures to be not just procedural formality but constitutional necessity, especially where fundamental rights like privacy are at stake.

Quoting the Andhra Pradesh High Court’s ruling in K.L.D. Nagasree, the Court held:

“Non-compliance of Rule 419-A though procedural in nature is mandatory and the non-compliance of the same would vitiate the entire proceedings.”

“Evidence Collected Through Unconstitutional Means Must Be Discarded” – Fruit of the Poisonous Tree Doctrine Reinvigorated

The Government argued that even if the phone tapping was illegal, the evidence collected was admissible.

Relying on earlier Supreme Court judgments like R.M. Malkani and Pooran Mal, it was argued:

“The relevance of the evidence, not the means of its collection, determines admissibility.”

The Court, however, categorically rejected this, observing:

“The decisions in Malkani and Pooran Mal were delivered before the right to privacy was recognized as part of Article 21. That jurisprudence has now been overruled by the 9-Judge Bench in K.S. Puttaswamy.”

Referring to the Full Bench decision in SNJ Breweries, the Court added:

“Illegally obtained evidence is now not just illegal, but unconstitutional — and hence void.”

“Gatekeepers of Rights Cannot Become Gate-Makers” – Judiciary Refuses to Expand Statutory Language to Accommodate Investigative Desires

When urged by the Additional Solicitor General to adopt a broader reading of Section 5(2) to accommodate new-age crimes like corruption and organized crime, the Court firmly declined:

“The Lakshman Rekha is drawn by the Legislature. The Court is not to reposition the gates. Gatekeepers cannot become gate-makers to suit the Executive.”

Quoting Justice H.R. Khanna from Godavari Sugar Mills Ltd. v. S.B. Kamble, the Court declared:

“Any provision which has the effect of making an inroad into the guarantee of fundamental rights should be construed strictly...”

“Once the Foundation is Illegal, the Superstructure Cannot Stand” – Court Bars Use of Intercepted Material in Trial

Having found the interception to be illegal, and in violation of both substantive law and procedural law, the Court issued a clear and binding direction:

“The intercepted conversations collected pursuant to the impugned order dated 12.08.2011 shall not be used for any purpose whatsoever.”

However, the Court clarified that the CBI is free to proceed with other independent and legally collected evidence:

“Any material obtained independent of the intercepted conversations shall be assessed by the Trial Court on its own merits, uninfluenced by this judgment.”

A Resounding Constitutional Victory for Privacy Jurisprudence

In a 130-page judgment, the Madras High Court has once again fortified the walls of constitutional privacy against administrative overreach. The decision is not merely a rebuke to the executive but a reaffirmation of citizens’ fundamental right “to be let alone”, even in the face of serious criminal allegations.

“Howsoever noble the end, the means must pass constitutional muster. The protection of rights is not contingent on innocence, but on legality,” the Court concluded.

Date of Decision: 02 July 2025