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Govt’s phone tap orders violate privacy: Bombay HC

The HC order came in response to a petition by south Mumbai businessman Vinit Kumar against the three interception orders passed by the Union home ministry in October 2009, December and February 2010.

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MUMBAI: The Bombay high court on Tuesday quashed three orders passed by the Union home ministry to intercept phone calls of a businessman being probed by the CBI in a bribery case, saying it violates the right to privacy as held by the Supreme Court. It directed the destruction of illegally intercepted conversations and, again quoting a Supreme Court order, said tapping can be allowed only in a public emergency or in the interest of public safety. A bench of Justices Ranjit More and N J Jamadar held that permitting illegal interception “would lead to manifest arbitrariness and would promote scant regard to the procedure and fundamental rights of the citizens, and law laid down by the apex court”. The HC order came in response to a petition by south Mumbai businessman Vinit Kumar against the three interception orders passed by the Union home ministry in October 2009, December and February 2010. The CBI had registered a case against him for giving a bribe of Rs 10 lakh to a bank official for credit-related favour. Making it clear that it was not going into the merits of the CBI allegations, the HC said: “The intercepted recordings stand eschewed from the consideration of trial court.”The court found that the government took a varying stand, and said it “deprecated” such stand, especially towards a fundamental right, and held that it drew an “adverse inference”. The Bombay HC further observed that if SC judgments and laws against such intercepts are permitted to be flouted, it may amount to “breeding contempt for law, that too, in matters involving infraction of the fundamental right of privacy under Article 21”. The clause says no person shall be deprived of his life or personal liberty, except according to procedure established by law.Kumar’s plea was that the ministry’s sanction contravened the provisions of the Indian Telegraph Act, 1885, and urged that the recordings be destroyed as directed by the SC in the landmark People’s Union for Civil Liberties (PUCL) versus Union of India judgment of 1997. He also relied on a 2017 nine-judge Constitution bench judgment in the KS Puttaswamy case that speaks about fundamental freedom.Quoting the PUCL case, Justice More said: “The expression Public Safety… means the state or condition of freedom from danger or risk for the people at large. When either of the two conditions is not in existence, it was impermissible to take resort to telephone tapping.” The judge added that “to declare that de hors (outside the scope of) fundamental rights, in administration of criminal law to secure evidence against the citizens, it would lead to manifest arbitrariness and would promote scant regard to the procedure and fundamental rights of the citizens, and law laid down by the apex court”. The court heard arguments by Kumar’s counsel Vikram Nankani and Sujay Kantawala and CBI counsel Rebecca Gonsalves and state government pleader Purnima Kantharia as well as additional government pleaded Aruna Pai. The SC, in the PUCL case, had laid down that “right to privacy would include telephonic conversation in the privacy of one’s house or office. Telephone tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law”. To safeguard the right to privacy, the SC had directed that there shall be a review committee. The HC found were the orders were passed “without making a reference to the review committee within seven working days” or there being scrutiny by the review committee and thus “in clear breach of the statute”.

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