Phone Tapping & Privacy Rights
Kishore v. The Secretary to Government
“Phone-tapping constitutes a violation of the fundamental right to privacy unless it is
justified by a procedure established by law.”
Justice N. Anand Venkatesh
Why in News?
Recently, the Madras High Court in P. Kishore v. The
Secretary to Government, addressed the crucial
constitutional issues concerning phone tapping, privacy
rights, and the legality of interception orders under
the Indian Telegraph Act, 1885.
The judgment reaffirms that surveillance actions must
meet strict legal criteria and cannot be used as
routine tools in ordinary criminal
investigations. Justice N. Anand
Venkatesh underscored that the right to privacy is a
fundamental right under Article 21, and unauthorized
surveillance amounts to a serious violation of this
right.
What was the Background of P. Kishore v. The
Secretary to Government (2025) Case?
Petitioner: P. Kishore, then Managing Director of M/s
Everonn Education Limited, Chennai.
12th August 2011:
The Union Ministry of Home Affairs passed
an interception order under Section 5(2) of the
Telegraph Act, 1885 and Rule 419-A of the Indian
Telegraph Rules, 1951, authorizing phone tapping of
Kishore’s mobile (No. 98410-77377) citing "public
safety" and "public order".
29th August 2011:
CBI registered FIR RC MA1 2011 A 0033:
A1: Andasu Ravinder (IRS officer) allegedly demanded
a ₹50 lakh bribe from A2: P. Kishore (petitioner).
A3: Uttam Bohra (friend of A1) was allegedly to
transport the bribe.
CBI intercepted A1 and A3 at A1's residence and
recovered ₹50 lakh from a carton. Kishore was not
present, and no money was recovered from him.
Investigation and Charge Sheet:
CBI completed investigation and filed a final report
before the Special CBI Court, Chennai in C.C. No. 3 of
2013.
2014: Kishore challenged the phone tapping order
in Criminal Petition No. 12404/2014. The High Court
granted an interim stay.
27th October 2017: Petition dismissed on technical
grounds, allowing liberty to move under Article 226.
10th January 2018: Kishore filed Writ Petition No. 143
of 2018 under Article 226 to:
Quash the interception order.
Declare intercepted communications as invalid and
unconstitutional.
CBI and Centre’s Stand:
Defended interception as necessary to detect and
prevent corruption.
Argued that bribery affects public safety by damaging
the credibility of public institutions.
What were the Court’s Observations?
Right to Privacy and Phone Tapping:
Telephone tapping constitutes a violation of the right
to privacy unless justified by a procedure established
by law.
The right to privacy is part of Article 21 of the
Constitution of India, 1950 (COI) and phone
conversations are an essential part of modern life.
On Section 5(2) of the Indian Telegraph Act, 1885:
Section 5(2) permits surveillance only when:
There is a public emergency or interest of public
safety.
The surveillance is necessary in the interest of
sovereignty, integrity, security of State, public order,
etc.
The words of Section 5(2) of the Act cannot be
strained to include detection of ordinary crime.
It was further held that:
The interception order was a templated
reproduction of Section 5(2) without any application
of mind.
There was no public emergency or threat to public
safety in a routine bribery investigation.
On Procedural Safeguards (Rule 419-A of the
Telegraph Rules, 1951):
The intercepted material was not placed before the
Review Committee, violating the Supreme Court's
mandate.
Final Judgment:
The interception order dated 12th August 2011 was
quashed.
All telephonic communications intercepted pursuant
to it declared invalid.
However, evidence gathered independently of the
intercepted calls can be evaluated by the trial
court on merits.
What are the Legal Provisions in Relation to Phone
Tapping in India?
About:
Phone tapping or cell phone tracking/tracings
an activity where a user's phone calls, and other
activities are tracked using different software.
This procedure is majorly carried out without the
targeted person being notified of any such activity.
It can be done by authorities making a request to the
service provider, which is bound by law, to record the
conversations on the given number and provide these
in real time through a connected computer.
However, Article 21 of the COI says that “No person
shall be deprived of his life or personal liberty except
according to procedure established by law.”
Power to Tap Phones:
State Level:
In the states, police have the power to tap phones.
Central Level:
Intelligence Bureau, Central Bureau of Investigation
(CBI) Enforcement Directorate, Narcotics Control
Bureau, Central Board of Direct Taxes, Directorate of
Revenue Intelligence, National Investigation Agency
Research and Analysis Wing (R&AW), Directorate of
Signal Intelligence, Delhi Police Commissioner.
Laws governing Phone Tapping in India:
The Indian Telegraph Act, 1885:
According to Section 5(2) of the Act on the occurrence
of any public emergency, or in the interest of public
safety, phone tapping can be done by the Centre or
states.
The order can be issued if they are satisfied it is
necessary in the interest of public safety,
“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”.
Exception for Press:
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.
The competent authority must record reasons for
tapping in writing.
Authorization of Phone Tapping:
Phone tapping is authorized by Rule 419A of the
Indian Telegraph (Amendment) Rules, 2007.
Rule 419A of the Indian Telegraph Rules, 1951 was
implemented in March 2007 with specific safeguards.
In the case of the Central Government: The order can
be issued by an order made by the Secretary to the
Government of India in the Ministry of Home Affairs.
In the case of a State Government: By the Secretary
to the State Government in-charge of the Home
Department.
In Emergency Situation:
In such a situation, an order may be issued by an
officer, not below the rank of a Joint Secretary of
India, who has been authorized by the Union Home
Secretary, or the State Home Secretary.
In remote areas or for operational reasons, if it is not
feasible to get prior directions, a call can be
intercepted with the prior approval of the head or the
second senior-most officer of the authorized law
enforcement agency at the central level, and by
authorized officers, not below the rank of Inspector
General of Police, at the state level.
The order must be communicated within three days to
the competent authority, who must approve or
disapprove of it within seven working days.
If confirmation from the competent authority is not
received within the stipulated seven days, such
interception shall cease.
