Privacy, Data Protection and Retention, Surveillance
Pavolotzki, Claudio et. al v. Fischer Argentina S.A.
Closed Mixed Outcome
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The Bombay High Court ruled that the interception of a businessman’s telephone calls was an infringement of his right to privacy. The Indian Home Ministry had ordered the interception of a businessman’s communications after he was accused of bribing a public servant. The businessman challenged the interception orders, arguing that they were unlawful and infringed his right to privacy. The Court held that there was no lawful justification for intercepting the businessman’s communications, set aside the orders and instructed that all information obtained through the interception be destroyed.
Between October 2009 and February 2010, the Indian Ministry of Home Affairs issued three orders to intercept the telephone calls of Vinit Kumar, an Indian businessman. The interception orders were issued in terms of section 5(2) of the Indian 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 provision states that this can be done in “any public emergency, or in the interest of public safety” and if the relevant government is “satisfied that it is necessary or expedient to do so in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order or for preventing incitement to the commission of an offence”.
Kumar was accused of bribing a public official to obtain a credit-related favour and was under investigation by the Central Bureau of Investigation (CBI), Economic Offences Division. The CBI filed a First Information Report (FIR) – which signifies the commencement of criminal investigations – in April 2011. Based on the evidence gathered through phone tapping, the CBI filed a charge sheet against Kumar.
Kumar approached the Bombay High Court to set aside the three interception orders and all evidence gathered based on the telephone recordings. He argued that the interception orders were unlawful by violating his constitutional right of privacy under article 21 of the Constitution, and because the correct procedure was not followed in obtaining the orders.
Article 21 of the Constitution states that “[n]o person shall be deprived of his life or personal liberty except according to procedure established by law”. The procedure for obtaining lawful interceptions is set out in section 5(2) and Rule 419A of the Indian Telegraph Rules, 1951. Rule 419A – which was introduced in 2007 – establishes a Review Committee which must review all decisions taken under section 5(2) and set aside any orders which are not in accordance with that provision. The Rule also mandates the Review Committee to direct that all information gathered from interceptions that it has declared ultra vires, beyond the legal authority, section 5(2) be destroyed.
Judge More delivered the opinion of two-judge division bench of the Bombay High Court. The primary question before the Court was whether the three interception orders were ultra vires, or beyond the legal authority set out under section 5(2).
Kumar argued that the interception orders violated his right to privacy and had not followed the legislative requirements and procedure under section 5(2) and Rule 419A.
The CBI argued that the interception orders were legal since they were issued “for the reason of public safety” and that due procedure had been followed [para. 16]. The CBI also submitted that even if there had been a violation of the rules in collecting evidence, “such material can be relied upon as evidence during the trial” [para. 33].
The Court undertook a thorough analysis of Indian jurisprudence on the interception of communications. It referred to the interpretation of section 5(2) set out in the 1997 Supreme Court case People’s Union for Civil Liberties (PUCL) v. Union of India (1997) 1 SCC 301 and confirmed that a public emergency or public safety interest was a precondition (a “sine qua non”) for the State to lawfully apply section 5(2) and that public safety is defined as “the State or Condition of freedom from danger or risk for the people at large” [para. 6]. It added that the existence of a public emergency or public safety interest was objective, and something that would be “apparent to a reasonable person” [para. 6]. With reference to Maneka Gandhi v. Union of India 1978 SCR (2) 621 that Court had reiterated that any procedure which deals with a limitation of an article 21 right has to be “fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself” [para. 6], and accordingly set out the procedure of a review committee which led to the adoption of Rule 419A.
The Court noted that the nine judge bench in Puttaswamy v. Union of India (2017) 10 SCC 1 had overruled previous judgments which had not considered the right to privacy as a fundamental right. In Puttaswamy that Court held that “the right to privacy is protected by the Constitution as an intrinsic part of the right to life and personal liberty under article 21 of the Constitution of India and as a part of the freedom guaranteed by Part-III of the Constitution of India” [para. 8]. Accordingly, the Court noted that “[t]he proposition that illegal tapping of telephone conversations violates right to privacy is now accepted and reinforced as guaranteed fundamental right under article 21”.
The Puttaswamy case also established a test of proportionality and legitimacy to determine when the right to privacy can be justifiably limited through the application of section 5(2). This test requires that, for an interception order to be legitimate, it must (i) be sanctioned by law, (ii) be necessary in a democratic society, (ii) the extent of the interference must be proportionate to the need for that interference, and (iv) there must be procedural guarantees against abuse of that interference [para. 11-12].
In applying the legal principles to the present case, the Court noted that the orders for the interception of Kumar’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” [para. 18].
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, and so did not satisfy the Puttaswamy test of proportionality and legitimacy [para. 19].
The Court then examined whether it should issue directions to destroy the communications obtained through the unlawful interceptions. The Court referred to the procedure set out in PUCL (which had been confirmed in Puttaswamy) and then established in Rule 419A which mandated the Review Committee to direct that all material obtained through a contravention of section 5(2) be destroyed. The Court found that “having held that the impugned interception orders have been issued in contravention of the provisions of section 5(2) of the Act, we have no option but to further direct the destruction of intercepted messages” [para. 21].
The Court rejected the CBI’s submission that it could use the evidence obtained through the interception of Kumar’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” [para. 39].
Accordingly, the Court set aside the three interception orders and ordered the destruction of copies of the intercepted messages or recordings and reiterated that the recordings cannot play a part in Kumar’s criminal trial.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Bombay High Court provides an important judgment in the absence of privacy legislation in India by reiterating the fundamental right to privacy as guaranteed by the Supreme Court of India. In addition, by disallowing the use of evidence gathered from illegal interceptions of communication the Court held the CBI accountable for the violation of the fundamental right to privacy.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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