BEFORE THE SUPREME COURT OF INDIA

SPECIAL LEAVE PETITION (CRIMINAL ) OF _________ 2024

IN THE MATTER OF

Central Bureau of Investigation …… Appellant

Versus

Vinit Kumar ……. Respondent

COUNTER AFFIDAVIT ON BEHALF OF

RESPONDENT

INDEX
Sr. Particulars Pages
No.

MOST RESPECTFULLY SHOWETH:

The present appeal is being filed against the Judgement/ final order passed by
the division bench of the High Court of Delbi, the hon’ble high court had passed
order in favor of Petitioner (present Respondent) and had quashed the said 3
order for intercepting the telephone of Petitioner (present Respondent). The
interception orders were issued in terms of section 5(2) of the Lyrindian
Telegraph Act, 1885 (the Act), which empowers state and central governments
to terminate the transmission of any messages or intercept or detain those
messages.
The Hon’ble High court while exercising the jurisdiction under Article 226 of
the constitution had set aside a detailed and a well reasoned order of telephonic
tapping passed by Ministry of Home Affairs which was the base for instituting
an FIR by the CBI against the petitioner (present Respondent).
The Hon’ble High Court and observed as under:
“7. The Court undertook a thorough analysis of Lyrindian jurisprudence
on the interception of communications. And while applying the legal principles
to the present case, the Court noted that the orders for the interception of Mr.
Rax Manto's communications were ostensibly issued on the grounds of "public
safety." Here the Court reiterated that if there is no objective situation of a
threat to public safety which is apparent to a reasonable person it is
impermissible to resort to interception. The Court held that there was nothing in
the CBI's argument that justified "any ingredients of risk to the people at large
or interest of public safety, for having taken resort to the telephonic tapping by
invading the right to privacy." The Court held that it was satisfied that the three
interception orders did not have the "sanction of law," were not issued for a
legitimate aim.
8. On 10/10/2023 the Court rejected the CBI's submission that it could use the
evidence obtained through the interception of Mr. Rax Manto's communications
even if it had not followed the correct procedure in obtaining the information.
The Court noted that to allow this would be accepting that the "ends justify the
means" in the administration of criminal law, which would "lead to manifest
arbitrariness and promote the scant regard to fundamental rights of citizens."
9. Being aggrieved by the order passed by the High Court of Delbi, the CBI
challenged the same by way of special leave petition before the Supreme Court
of Lyrindia. The leave is granted, and the appeal is pending before the Supreme
Court of Lyrindia for the final hearing.”

Question of Law
1. Weather the orders passed by the Home Ministry are according to the
procedure mentioned in the Indian Telephonic Act, 1885?
2. Orders so passed and actions so taken by CBI/ appellant infringed the
Fundamental rights conferred to the Respondent under Article 21 of the
Constitution.
Weather the orders passed by the Home Ministry are according to
the procedure mentioned in the Indian Telephonic Act, 1885?
1. The orders which have given torque to this present dispute are
dt. November 2022 to March 2023 passed by the Lyrindian
Ministry of Home Affairs issued three orders to intercept the
telephone calls of Rax Manto. The interception orders were
issued in terms of sec. 5(2) of the Lyrindian Telegraph Act,
1885 (the Act), which empowers state and central governments
to terminate the transmission of any messages or intercept or
detain those messages.
2. It would be pertinent to reproduce sec. 5 (2) of the Act, which
deals with the power of the Government to take possession of
licensed telegraphs and to order interception of messages. Ss.
(sub- section) (2) of Section 5, for our purpose is relevant,
which reads as follows:
“5.(1)
(2) On the occurrence of any public emergency, or in the
interest of the public safety, the Central Government or a State
Government or any officer specially authorised in this behalf by
the Central Government 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 with 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 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 the press messages intended to be published in
India of correspondents accredited to the Central Government
or a State Government shall not be intercepted or detained,
unless their transmission has been prohibited under this sub-
section.]”
3. Section 5(2) of the Telegraph Act, 1885 empowers the Central
Government/State Government or any officer specially
authorized to intercept any message or messages to and from
any person or class of persons on the occurrence of any public
emergency, or in the interest of public safety. Rule 419-A(1) of
the Telegraph Rules, 1951, to be read together with Section
5(2), provides that any such direction for interception must not
be issued except by an order made by the Secretary to the
Government of India or by Secretary to the State Government in
charge of the Home Department or in unavoidable
circumstances byan officer, not below the rank of Joint
Secretary to the Government of India. However, Rule 419-A (1)
also provides for an exemption from this requirement. In
emergent cases, when obtaining prior directions is not feasible
due to it arising out of remote areas or due to operational
reasons, an interception may be carried out with the prior
approval of the head or the second seniormost officer of the
authorized security and law enforcement agency centrally. Such
an interception is to be informed to the competent authority
concerned within 3 working days and confirmed within 7
working days.

4. It is further put forth that the safeguards within Rule 419-A(2)

provide that any order which has been issued by a competent
authority is to be sent to a Review Committee within 7 working
days. The order sent to the Committee shall under Rule 419-
A(5) specify the use of the intercepted messages, and they shall
continue to remain in force for a period not exceeding 60 days
unless renewed, for a maximum cumulative period of 180 days
under Rule 419-A(6). Review committees meet every two
months and examine the validity of such interceptions. It is
evident from a bare perusal of Rule 419-A that the construction
of the legislative scheme under it has been done in this manner
to restrict the exercise of discretion within it solely in the hands
of the executive.

5. In a similar case to the present dispute before the HC of

Bombay the observations made by the divisional bench of the
HC were a limestone the Hon’ble HC had observed that the
defendant had not followed the due procedure of law as
 mentioned in the Act and rules, moreover with such other
important precautions were also not taken before issuing an
order under sec. 5 (2) of the Act and tapping the cellular device
of the petitioner. The Hon’ble court also had raised its concerns
with regards to the Right to Privacy of the Petitioner being
violated1.

6. In one another case before the Delhi HC in which similar

observation as given where the court was also deciding a case
similar to the case in hand of this Hon’ble, it was observed that
the Court found that there was no material-on-record to
establish that any review of the order of the Home Secretary had
been conducted incompliance with Rule 419-A and the
Telegraph Act and the Court did hold that non-compliance with
these Rules would lead to manifest arbitrariness and violate the
fundamental rights of citizens. Thus, the Court set aside the
charges which were framed against the petitioner2.

7. Now at this juncture it is needed to highlight the admissibility of

said evidence, the Respondent doesn’t want to dive deep into
said sub issue rather wants to throw a light on which this
Hon’ble Court can make more effective and reasoned answer, in
Jatinder Pal Singh case, the public servant who was being
bribed through the alleged conspiracy had already been
discharged while charges framed against the petitioner since
2012 were still pending. In Vinit Kumar's case, the petitioner
had to approach the Court for an exercise of its writ jurisdiction
to claim a violation of his fundamental rights at the stage of
trial. In both instances, the petitioners had to approach a higher
court to obtain a relief. However, with the precedents of Jatinder
Pal Singh case and Vinit Kumar case, an accused against whom
a charge-sheet has been filed based on the illegally obtained
evidence, would now be able to challenge such evidence at the
stage of arguments on charge/discharge under Section 227 or
Section 228 of the Criminal Procedure Code,1973. Regardless
of the same, most remedies in relation to challenging such
evidence exist outside the framework of the trial in the form of
applications to writ jurisdiction, applications for criminal
1
Vinit Kumar case
2
Jatinder Pal Singh case
 revision or quashing proceedings before a higher court.
Invoking these remedies would mean that any such trial
becomes longer and unfairly prejudicial towards an accused.
Such illegalities and unfairness against individuals can be
countered if a scope of judicial or legislative oversight is
introduced into the framework of surveillance. For instance, in
R. v. Yat Fung Albert Tse which dealt with the constitutionality
of Sec. 184.4 of the Criminal Code of Canada, powers like
those under Rule 419-A rested with a police officer to conduct
interception due to the urgency of a situation. The Court found
that Sec.184.4 violates Sec. 8 of the Charter as it does not
provide a mechanism for oversight, and more importantly, a
provision of notice to persons whose private communications
have been intercepted.

Orders so passed and actions so taken by CBI/ appellant

infringed the Fundamental rights conferred to the
Respondent under Article 21 of the Constitution.
8. It is pertinent to throw light and aware this Hon’ble court that
the orders so issued against the Respondent were completely
against the set procedure mentioned in the Act itself the
legislature has made clear stages for tapping a phone of a person
within the border of this humongous democratic nation so that
the fundamental right conferred under Art. 21 of the
Constitution3 does not get infringed of the person whose phone
has been tapped. But in the case in hand, the authorities have
not followed the due procedure of law mentioned in the Act
which is made by the legislature for the betterment of the people
of this nation and for the executive to be within the wall of law
and restrict the illegal moves to procure evidences, it would be
pertinent to look at the said provisions of the Telegraph Act
which is mentioned below for Hon’ble courts kind perusal:
419A. (1) Directions for interception of any message or class of
messages under sub-section (2) of Section 5 of the Indian
Telegraph Act, 1885 (hereinafter referred to as the said Act)
shall not be issued except by an order made by the secretary to
the Government of India in the Ministry of Home Affairs in the
case of Government of India and the Secretary to the State
3
Government in-charge of the Home Department in the case of a
State Government. In unavoidable circumstances, such order
may be made by an officer, not below the rank of a Joint
Secretary to the Government of India, who has been duly
authorized by the Union Home Secretary or the State Home
Secretary, as the case may be :- Provided that in emergent
cases- (i) in remote areas, where obtaining of prior directions
for interception messages or class of messages is not feasible;
or (ii) for operational reasons, where obtaining of prior
directions for interception of messages or class of messages is
not feasible; the required interception of any message or class
of messages shall be carried out with the prior approval of the
Head or the second senior-most office of the authorized security
i.e. Law Enforcement Agency at the Central Level and the
officers authorized in this behalf, not below the rank of
Inspector General of Police, at the state level but the concerned
competent authority shall be informed of such interceptions by
the approving authority within three working days and that
such interceptions shall be got confirmed by the concerned
competent authority within a period of seven working days, If
the confirmation from the competent authority is not received
within the stipulated seven days, such interception shall cease
and the same message or class of messages shall not be
intercepted thereafter without the prior approval of the Union
Home Secretary or the State Home Secretary, as the case may
be. (2) Any order issued by the competent authority under sub-
rule (1) shall contain reasons for such direction and a copy of
such order shall be forwarded to the concerned Review
Committee within a period of seven working days. (3) While
issuing direction under sub-rule (1) the officer shall consider
possibility of acquiring the necessary information by other
means and the directions under sub-rule (1) shall be issued only
when it is not possible to acquire the information by any other
reasonable means. (4) The interception directed shall be the
interception of any message or class of messages as are sent to
or from any person or class of persons or relating to any
particular subject whether such message or class of messages
are received with one or more addresses, specified in the order,
being an address or addresses likely to be used for the
transmission of communications from or to one particular
person specified or described in the order or one particular set
of premises specified or described in the order. (5) The
directions shall specify the name and designation of the officer
or the authority to whom the intercepted message or class of
messages is to be disclosed and also specify that the use of
intercepted message or class of messages shall be subject to the
provisions of sub-section (2) of Section 5 of the said Act. (6)
The directions for interception shall remain in force, unless
revoked earlier, for a period not exceeding sixty days from the
date of issue and may be renewed but the same shall not remain
in force beyond a total period of one hundred and eighty days.
(7) The directions for interception issued under sub-rule (1)
shall be conveyed to the designated officers of the licensee(s)
who have been granted licences under Section 4 of the said Act,
in writing by an officer not below the rank of Superintendent of
Police or Additional Superintendent of Police or the officer of
the equivalent rank. (16) The Central Government and the State
Government, as the case may be shall constitute a Review
Committee. The Review Committee to be constituted by the
Central Government shall consists of the following namely:- (a)
Cabinet Secretary Chairman (b) Secretary to the Government of
India In charge, Legal Affairs-Member (c) Secretary to the
Government of India, Department of Telecommunications
Member. The Review Committee to be constituted by a State
Government shall consist of the following, namely:- (a) Chief
Secretary-Chairman (b) Secretary Law/Legal Rememberancer
Incharge, Legal Affairs-Member (c) Secretary to the State
Government (other than the Home Secretary)-Member (17) The
Review Committee shall meet at least once in two month and
record its findings whether the directions issued under sub-rule
(1) are in accordance with the provisions of sub-section (2) of
Section 5 of the said Act. When the Review Committee is of the
opinion that the directions are not in accordance with the
provisions referred to above it may set aside the directions and
orders for destruction of the copies of the intercepted message
or class of messages. (18) Records pertaining to such directions
for interception and of intercepted messages shall be destroyed
by the relevant competent authority and the authorized security
and Law Enforcement Agencies every six months unless these
are, unlikely to be, required for functional requirements. (19)
 The service providers shall destroy records pertaining to
directions for interception of message within two months of
discontinuance of the interception of such messages and in
doing so they shall maintain extreme secrecy.4
9. At this juncture it can be well made out that the phone tapping
was not lawful as it has not followed due procedure of law
mentioned in the rules read with the Sec. 5 (2) if the Act, hence
once the authorities while tapping the phone of the Respondent
without any legal backing has infringed the Fundamental right
of Privacy as under Art. 21 of the constitution of the
Respondent. Even in a landmark judgment it has been well
settled and observed by a nine-judged bench that when any
evidence procured by the executive without following the due
procedure of law and as a consequence have infringed any
Right under Art. 21 of the constitution then that would be
against the basic structure on constitution and will be against
the justice delivery system of this nation moreover it is against
the natural justice. The relevant para of that judgement which
made right to privacy as a fundamental right is as under5:
265. But the important point to note is that when a right is
conferred with an entrenched constitutional status in Part III, it
provides a touchstone on which the validity of executive
decision making can be assessed and the validity of law can be
determined by judicial review.
313. Privacy has been held to be an intrinsic element of the
right to life and personal liberty under Article 21 and as a
constitutional value which is embodied in the fundamental
freedoms embedded in Part III of the Constitution. Like the
right to life and liberty, privacy is not absolute. The limitations
which operate on the right to life and personal liberty would
operate on the right to privacy. Any curtailment or deprivation
of that right would have to take place under a regime of law.
The procedure established by law must be fair, just and
reasonable. The law which provides for the curtailment of the
right must also be subject to constitutional safeguards.

4
https://thc.nic.in/Central%20Governmental%20Rules/Indian%20Telegraph%20Rules,1951.pdf
5
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1
317. ………. The first part of the decision in Kharak
Singh which invalidated domiciliary visits at night on the
ground that they violated ordered liberty is an implicit
recognition of the right to privacy. The second part of the
decision, however, which holds that the right to privacy is not a
guaranteed right under our Constitution, is not reflective of the
correct position. Similarly, Kharak Singh's reliance upon the
decision of the majority in Gopalan is not reflective of the
correct position in view of the decisions in Cooper and in
Maneka. Kharak Singh to the extent that it holds that the right
to privacy is not protected under the Indian Constitution is
overruled.
325. Like other rights which form part of the fundamental
freedoms protected by Part III, including the right to life and
personal liberty under Article 21, privacy is not an absolute
right. A law which encroaches upon privacy will have to
withstand the touchstone of permissible restrictions on
fundamental rights. In the context of Article 21 an invasion of
privacy must be justified on the basis of a law that stipulates a
procedure which is fair, just and reasonable. The law must also
be valid with reference to the encroachment on life and
personal liberty under Article 21. An invasion of life or
personal liberty must meet the three-fold requirement of (i)
legality, which postulates the existence of law;
(ii) need, defined in terms of a legitimate state aim; and (iii)
proportionality which ensures a rational nexus between the
objects and the means adopted to achieve them.
…
428.2 The right to privacy is inextricably bound up with all
exercises of human liberty - both as it is specifically
enumerated across Part III, and as it is guaranteed in the
residue under Article 21. It is distributed across the various
articles in Part III and, mutatis mutandis, takes the form of
whichever of their enjoyment its violation curtails.
428.3 Any interference with privacy by an entity covered by
Article 12's description of the ‘state’ must satisfy the tests
applicable to whichever one or more of the Part III freedoms
the interference affects.
525. It is clear that Article 21, more than any of the other
Articles in the fundamental rights chapter, reflects each of these
constitutional values in full, and is to be read in consonance
with these values and with the international covenants that we
have referred to. In the ultimate analysis, the fundamental right
of privacy, which has so many developing facets, can only be
developed on a case to case basis. Depending upon the
particular facet that is relied upon, either Article 21 by itself or
in conjunction with other fundamental rights would get
attracted.
526. But this is not to say that such a right is absolute. This
right is subject to reasonable regulations made by the State to
protect legitimate State interests or public interest. However,
when it comes to restrictions on this right, the drill of various
Articles to which the right relates must be scrupulously
followed. For example, if the restraint on privacy is over
fundamental personal choices that an individual is to make,
State action can be restrained under Article 21 read with
Article 14 if it is arbitrary and unreasonable; and under Article
21 read with Article 19(1)(a) only if it relates to the subjects
mentioned in Article 19(2) and the tests laid down by this Court
for such legislation or subordinate legislation to pass muster
under the said Article. Each of the tests evolved by this Court,
qua legislation or executive action, under Article 21 read with
Article 14; or Article 21 read with Article 19(1)(a) in the
aforesaid examples must be met in order that State action pass
muster. In the ultimate analysis, the balancing act that is to be
carried out between individual, societal and State interests must
be left to the training and expertise of the judicial mind.
568. Similarly, I also hold that the “right to privacy” has
multiple facets, and, therefore, the same has to go through a
process of case-to-case development as and when any citizen
raises his grievance complaining of infringement of his alleged
right in accordance with law.
578. It is not India alone, but the world that recognises the right
of privacy as a basic human right. The Universal Declaration
of Human Rights to which India is a signatory, recognises
privacy as an international human right. The importance of this
right to privacy cannot be diluted and the significance of this is
that the legal conundrum was debated and is to be settled in the
present reference by a nine-Judges Constitution Bench.
Test : Principle of proportionality and legitimacy
638. The concerns expressed on behalf of the petitioners arising
from the possibility of the State infringing the right to privacy
can be met by the test suggested for limiting the discretion of
the State:
“(i) The action must be sanctioned by law;
(ii) The proposed action must be necessary in a democratic
society for a legitimate aim;
(iii) The extent of such interference must be proportionate to
the need for such interference;
(iv) There must be procedural guarantees against abuse of
such interference.”
643. The aforesaid aspect has been referred to for purposes
that the concerns about privacy have been left unattended for
quite some time and thus an infringement of the right of privacy
cannot be left to be formulated by the legislature. It is a primal
natural right which is only being recognized as a fundamental
right falling in part III of the Constitution of India.
650. Let the right of privacy, an inherent right, be
unequivocally a fundamental right embedded in part-III of
the Constitution of India, but subject to the restrictions
specified, relatable to that part. This is the call of today. The
old order changeth yielding place to new.
652. The reference is disposed of in the following terms:
652.1. The decision in M.P. Sharma which holds that the right
to privacy is not protected by the Constitution stands over-
ruled;
 652.2. The decision in Kharak Singh to the extent that it holds
that the right to privacy is not protected by the Constitution
stands over-ruled;
653.3. The right to privacy is protected as an intrinsic part of
the right to life and personal liberty under Article 21 and as a
part of the freedoms guaranteed by Part III of the Constitution.
653.4. Decisions subsequent to Kharak Singh which have
enunciated the position in (iii) above lay down the correct
position in law
10. Thus at this juncture, with the K.S. Puttaswamy case
recognizing the right to privacy under Art. 21, any evidence
obtained through surveillance must not only fulfil the
requirement of the “procedure established by law” such as Rule
419-A of the Telegraph Rules, 1951 or Section 5of the
Telegraph Act, 1885, but also the “due process” test laid down
by Puttaswamy case. This test provides that any infringement of
an individual's privacy which is undertaken by the state must
fulfil three requirements being:
(1) The existence of law or legality of the measure undertaken;
(2) The necessity of the measure undertaken in relation to
legitimate State aim; and
(3) Proportionality ensures a rational nexus between the objects
and the means adopted to achieve them.
11. It would also be pertinent to put forth the observation made by
this Hon’ble court in PUCL case the impugned legislation in the
PUCL Case was section 5(2) of the Indian Telegraph Act, 1885
(IT Act), which permits interception on the occurrence of a
public emergency, or in the interest of public safety. The
Supreme Court, while rejecting the argument that the said
provision is ultra-vires the Constitution of India, held that the
two statutory pre-conditions, namely, the occurrence of any
public emergency or in the ‘interest of public safety’, have to be
satisfied. Since the terms hadn’t been defined under the IT Act,
the Supreme Court interpreted them to mean “the prevalence of
a sudden condition or state of affairs affecting the people at
large calling for immediate action”, and “the state or condition
 of freedom from danger or risk for the people at large”,
respectively. Insofar as wiretaps and their infringement of
constitutional rights were concerned, the Supreme Court laid
down the following touchstones:
1. The right to privacy “is a part of the right to ‘life and ‘personal
liberty enshrined under Art.21 of the Constitution”.
2. The right to hold a telephone conversation in the privacy of
one’s home or office without interference can certainly be claimed
as a “right to privacy” since telephonic conversations are often of
an intimate and confidential nature.
3. Any right enshrined under Art. 21 cannot be curtailed except
according to the procedure established by law, which has to be
just, fair and reasonable the Supreme Court went to issue
guidelines to curb administrative overreach.
12. Section 5 of the Act, and Rule 419-A of the Telegraph Rules,
1951 containing powers of wiretapping at the hands of the
Government is a hotbed for such questions of admissibility of
illegally obtained evidence. Both Section 5 and Rule 419-
Acontain wide-ranging powers of any Government to wiretap
telephones if it considers it necessary in a situation of public
emergency or public safety. It would be wrong to say that these
provisions do not have procedural safeguards woven into them.
However, the natural conflict between questions of admissibility
of evidence and concerns of national security or public safety
contained within Section 5 and Rule 419-A remains unanswered.
The Delhi HC judgment in Jatinder Pal Singh v. CBI and the
Bombay HC judgment in Vinit Kumar v. CBI in 2019 brings into
perspective certain interesting questions regarding the same
conundrum. In Vinit Kumar case the HC observed that based on
the materials-on-record, there were no circumstances or
situations of “public safety” or “public emergency” in the matter
at hand. In the absence of any such material, the Court in one
sweep struck down the orders, holding that the interception orders
have failed the test of legality, necessity, and proportionality.
Importantly, the Court also observed that sanctioning a violation
of fundamental rights on the notion that in criminal law, the ends
 justify the means, would amount to manifest arbitrariness and
contempt of the Supreme Court's directions in Puttaswamy case6.

13.That in the view of the above facts and circumstances the petition
filed by the petitioner is devoid of any substances, merit and liable
to be dismissed with cost.
14. Its is therefore, most humble and respectfully prayed that your
Lordships may graciously be pleased to dismiss the present
Special Leave Petition with cost.

Filed on: Filed By:

14.02.2024 Adv. Varil S. Sheth

6
Para 19-20