Introduction:

In the landmark case P Kishore v. The Secretary to Government and Others [2025 LiveLaw (Mad) 224; Writ Petition No.143 of 2018], the Madras High Court has delivered a significant ruling reinforcing the sanctity of privacy and curbing arbitrary state intrusion by quashing the Central Government’s order authorizing the tapping of a private individual’s phone in the course of a corruption probe. The case arose after the Central Government, invoking Section 5(2) of the Indian Telegraph Act, 1885, and Rule 419-A of the Telegraph Rules, 1951, directed the tapping of P Kishore’s phone to investigate alleged bribery involving an Additional Commissioner of Income Tax. Justice Anand Venkatesh, deciding the writ petition, made it clear that telephone tapping amounts to a grave infringement of the fundamental right to privacy under Article 21 of the Constitution and can only be justified when there is a public emergency or a threat to public safety—circumstances that must be apparent to a reasonable person, not secretive situations orchestrated solely to detect crime.

Arguments:

The petitioner, represented by counsel Mr. Sharath Chandran for Mr. Rajagopal Vasudevan, argued that covert surveillance without any discernible public emergency violated Section 5(2) of the Act as interpreted in the Supreme Court’s judgments in People’s Union for Civil Liberties v. Union of India (PUCL) and KS Puttaswamy v. Union of India. He stressed that Section 5(2) contemplates interception only under two clear contingencies: the existence of a public emergency or a situation involving public safety, neither of which existed in this case of alleged bribery. He also pointed out that Rule 419-A mandates placing intercepted material before a Review Committee, which was not done, rendering the interception illegal and unconstitutional. The petitioner’s counsel further relied on PUCL to argue that state surveillance cannot occur in secret merely because authorities suspect wrongdoing; instead, the procedure established by law must be strictly followed to prevent misuse of state power, otherwise the fundamental right to privacy becomes illusory.

On the contrary, the respondents, represented by Mr. AR.L. Sundaresan, Additional Solicitor General, assisted by Mr. T.V. Krishnamachari and Mr. K. Srinivasan, contended that corruption in high offices poses significant risks to public safety and governance integrity, which should broaden the interpretation of Section 5(2). They urged the court to adopt an expansive view of “public safety” to include crimes committed secretly or through covert means like bribery, arguing that limiting interceptions to situations evident to a reasonable person would handicap investigative agencies and allow sophisticated criminals to act with impunity. The Centre maintained that the order was passed with application of mind, justified by national interest to curb corruption, and therefore satisfied the threshold of necessity under Section 5(2). However, Justice Anand Venkatesh rejected the Centre’s plea for expanding Section 5(2), holding that the statutory text clearly confines phone interception to instances of public emergency or public safety situations that are objectively discernible, not subjective suspicions. He reasoned that to read Section 5(2) as permitting interception for routine criminal investigations or covert detection would cross the “Lakshman Rekha” drawn by the legislature, effectively converting the judiciary from gatekeepers to gate makers of fundamental rights—a role the court cannot assume.

Judgement:

The judgment underscored that the Supreme Court in PUCL had unambiguously declared telephone tapping unconstitutional unless the specified contingencies exist, adding that the reviewing mechanism laid out under Rule 419-A is mandatory to safeguard privacy rights. The judge criticized the authorities for bypassing the Review Committee, stating that oversight is not a mere formality but a constitutional safeguard to prevent arbitrary interception. He observed that “telephone tapping constitutes a violation of the right to privacy unless justified by a procedure established by law” and that neither the alleged bribery nor the suspected tax evasion involved circumstances that could reasonably be classified as a public emergency or public safety risk as intended by Section 5(2). Quoting H.R. Khanna J’s observations from Godavari Sugar Mills Ltd. v. S.B. Kamble [1975 (1) SCC 696], the court reiterated that “Courts are gatekeepers of fundamental rights” and cannot reposition the gates of privacy protections whenever the executive seeks expanded surveillance powers. Justice Venkatesh categorically rejected the argument that fighting corruption itself could constitute a “public emergency,” clarifying that while corruption is a serious societal issue, it does not by itself fulfill the statutory threshold necessary for authorizing intrusive surveillance measures like phone tapping. He found the operation to be a covert surveillance exercise aimed at collecting evidence of bribery without fulfilling the contingencies laid down in law, and therefore in clear violation of constitutional protections. Importantly, the court noted that since the intercepted material was collected illegally, it could not be used for any purpose, including prosecution, and hence quashed the interception order entirely. The judgment also faulted the executive’s repeated attempts to stretch the interpretation of statutory language beyond permissible limits, cautioning that expansive readings of surveillance powers would render privacy protections hollow and erode public trust. It stressed that any restriction of privacy must not only comply with law but also be proportionate, necessary, and narrowly tailored—standards that were not satisfied here. By quashing the order, the Madras High Court reaffirmed that the state’s power to surveil must be exercised sparingly and strictly within statutory and constitutional boundaries. The ruling stands as a vital precedent upholding the right to privacy, ensuring that the state cannot bypass legal safeguards through broad interpretations of surveillance laws under the guise of law enforcement or administrative convenience. It reasserts that the judiciary’s role is to guard the boundaries set by the legislature, not redraw them, reinforcing the importance of procedural and constitutional checks against arbitrary state action. The court’s decision protects citizens from unlawful intrusions and reinforces that privacy is a fundamental right not to be sacrificed at the altar of expediency, even in the fight against corruption.