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Phone Tapping Violates Article 21 Unless Permitted by Procedure Established By Law: Chhattisgarh HC

 

While setting aside a dismissal order passed against a constable and a head constable who allegedly wanted to outrightly favour the criminal and the phone conversation to that effect was recorded, the Chhattisgarh High Court just recently on March 26, 2021 in a learned, latest, laudable and landmark judgment titled Toman Lal Sahu vs State of Chhattisgarh through Secretary and 3 others in WPS No. 5287 of 2012 has minced just no words to observe unequivocally that telephone tapping would infarct Article 21 of the Constitution of India unless it is permitted under the procedure established by law. In other words, telephone tapping is a serious breach of Article 21 of the Constitution of India and can be done only in accordance with the procedure as laid down by law. The Bench of Justice Goutam Bhaduri was hearing the pleas of the petitioners who were dismissed from service without there being any departmental enquiry, merely on the basis of CD transcriptions of the conversation (with a criminal).

To start with, Justice Goutam Bhaduri of Chhattisgarh High Court in its CAV order sets the ball rolling by first and foremost pointing out in para 2 about the challenge in both these petitions that, “The challenge in both these petitions is to the suspension orders dated 20th July 2011 (Annexure P-2) and subsequent dismissal orders dated 28.07.2011 (Annexure P-1). Petitioner Toman Lal Sahu was working as Head Constable and petitioner Chandrabhan Singh Bhadoriya was constable and both were posted at Police Station Moudha Para, Raipur, City Kotwali. As per the State, telephonic conversations made in between criminal Chhota Annu @ Anwar and the petitioners were recorded. Against Criminal Anwar, many criminal cases were registered against him. It is alleged that the petitioners being posted as Constable and Head Constable wanted to favour the criminal and the conversation to that effect was recorded and eventually on the basis of CD transcriptions and the CD which were made available to the higher officials of the Police, the petitioners were dismissed from service in exercise of power under Article 311(2) Clause (b), without there being any departmental enquiry. Since the services were terminated on the basis of the telephonic/mobile conversations by invoking power under Article 311(2) Clause (b), as such, no enquiry was held, when the said dismissal order was subject to departmental appeal, the same was also affirmed in appeal. The challenge in these petitions, therefore, is to the dismissal orders passed by the respondent State-Respondents.”

Needless to say, it is then stated in para 7 after hearing both the parties that, “Heard the learned counsel for the parties and perused the records.”

While elaborating on the order passed and the chain of events that led to dismissal order being passed, Justice Goutam then points out in para 8 that, “A perusal of orders of dismissal (Annexure P-1) shows that these orders were passed in the back-drop of involvement of the petitioners with a hardcore criminal and the petitioners were in telephonic conversation with him to extend some favour and the said conversation was converted in a CD. The CD was relied on as a document and was a base for the entire actions. The orders purport that the respondents recorded the voices on the basis of the conversation held between Chhota Annu @ Anwar who is a master-mind criminal and the petitioners. The dismissal orders (Annexure P-1) purport that the criminal was given shield by the petitioners so that he can unleash the criminal activities in the area. Annexure P-1 further purports that no evidence would be available to prove the conversation between the petitioners and accused and no-one would give evidence against the petitioners for facilitating the activity of a criminal and for this reason alone, the information is not transmitted to the higher officers. The order further records that in order to certify the criminal activities, the petitioners have already recorded the alleged threatenings by the criminal Anwar in the Rosnamcha Sanha so as to save themselves from any untoward incident which may happen, thereby they were hands in gloves with the criminal and thus the criminal was given protection. It further records that if the departmental enquiry would have been held, no evidence would have been available, which would result in escalation of the criminal activity. Consequently, the enquiry was dispensed with and eventually the dismissal orders were passed.”

While dwelling on the loopholes in passing the dismissal orders, Justice Goutam then concedes in para 9 that, “Admittedly, no Departmental Enquiry (D.E) was conducted before passing such dismissal orders and the D.E., was dispensed with merely on the basis of alleged telephonic conversation held between the criminal Chhota Annu @ Anwar and the petitioners, which was recorded by the police. Therefore, the nucleus of cause of action is based on the telephone records. The source of CD is not disclosed. The alleged telephonic conversation converted into CD which records the conversation was not supplied to the petitioners. The orders also do not disclose the fact how the voice of Tomanlal Sahu and Chandrabhan Singh were identified. It also neither discloses whether proper assistance of any officer was taken to identify the voice of the petitioners who were working as Head Constable and Constable nor the voice of criminal Chhota Annu @ Anwar was identified. No statement of any officer from department exists to say that he recognizes their voices. The compact disk was not sent for examination to any expert or to any Forensic Science Laboratory. The telephones or the mobiles in which the voice of conversation was recorded were not produced in original.”

To be sure, it is then enunciated in para 10 that, “Section 65-B of the Evidence Act lays-down certain procedure to be followed about the admissibility of the electronic record. In the instant case, it appears that the procedure for admissibility of such Compact Disk (CD) as envisaged in section 65-B of the Evidence Act has not been followed. No certificate of telephonic conversation to satisfy the ingredient of Section 65-B is also on record. Therefore, under the circumstances when a question comes to fore that whether any valid procedure or statutory mandate was followed to dispense with the departmental enquiry which proceeded on the premises of a telephonic recorded statement, the obvious answer would be in negative.”

While elaborating further, Justice Goutam then hastens to add in para 11 that, “ Further more, the action of respondents to dispense with the departmental enquiry before passing the dismissal orders on the basis of telephone tape conversation itself would be illegal. The question posed here is whether the telephonic conversation between the two individuals can be recorded to form a basis of dismissal? The answer would be found in the dictum laid down in PUCL Vs. Union of India AIR 1997 SC 568 (supra) wherein at para 35 the Supreme Court has issued certain directions/ guidelines for telephone tapping as otherwise, it has held that it would offend Articles 19(1)(a) & 21 of the Constitution of India. Paras 19, 20 & 35 of the said Judgment are relevant and quoted below :

“19. The right to privacy – by itself – has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend upon the facts of the said case. But the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as “right to privacy”. Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is a part of modern man’s life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of man’s private life. Right to privacy would certainly include telephone conversation in the privacy of one home or office. Telephone tapping would, thus infarct Article 21 of the constitution of India unless it is permitted under the procedure established by law”.

“20. Right to freedom of speech and expression is guaranteed under Article 19(1)(a) of the Constitution. This freedom means the right to express one’s convictions and opinions freely by words of mouth, writing, printing, picture, or in any other manner. When a person is talking on telephone, he is exercising his right to freedom of speech and expression. Telephone tapping unless it comes within the grounds of restrictions under Article 19(2) would infarct Article 19(1)(a) of the Constitution”.

“35. We, therefore, order and direct as under :

1. An order for telephone-tapping in terms of Section 5(2) of the Telegraph Act shall not be issued except by the Home Secretary of India (Central Government) and Home Secretaries of the State Government. In an urgent case, the power may be delegated to an officer of the Home Department of the Government of India and the State Government not below the rank of Joint Secretary. Copy of the order shall be sent to the Review Committee concerned within one-week of the passing of the order. 2. The order shall require the person to whom it is addressed to intercept in the course of their transmission by means (of) a public telecommunication system, such communications as are described in the order. The order may also require the person to whom it is addressed to disclose the intercepted material to such person and in such manner as are described in the order.

3. The matters to be taken into account in considering whether an order is necessary under Section 5(2) of the Act shall include whether the information which is considered necessary to acquire could reasonably be acquired by other means.

4. The interception required under Section 5(2) of the Act shall be the interception of such communications as are sent to or from one or more addresses, specified in the order, being an address or addresses likely to be used for the transmission of communications to or from, from one particular person specified or described in the order or one particular set of premises specified or described in the order.

5. The order under Section 5(2) of the Act shall, unless renewed, cease to have effect at the end of the period of two months from the date of issue. The authority which issued the order may, at any time before the end of two months’ period renew the order if it considers that it is necessary to continue the order in terms of Section 5(2) of the Act. The total period for the operation of the order shall not exceed six months.

6. The authority which issued the order shall maintain the following records : (a) the intercepted communications, (b) the extent to which the material is disclosed, (c) the number of persons and their identity to whom any of the material is disclosed (d) the extent to which the material is copied, (e) the number of copies made of any of the material.

7. The use of the intercepted material shall be limited to the minimum that is necessary in terms of Section 5(2) of the Act.

8. Each copy made of any of the intercepted material shall be destroyed as soon as its retention is no longer necessary in terms of Section 5(2) of the Act.

9. There shall be a review Committee consisting of Cabinet Secretary, the Law Secretary and the Secretary, Telecommunication at the level of the Central Government. The Review Committee at the State Level shall consist of the Chief Secretary, Law Secretary and another member, other than the Home Secretary, appointed by the State Government.

(a) The Committee shall on its own, within two months of the passing of the order by the authority concerned, investigate whether there is or has been a relevant order under Section 5(2) of the Act. Where there is or has been an order whether there has been any contravention of the provisions of Section 5(2) of the Act.

(b) If on an investigation the Committee concludes that there has been a contravention of the provisions of Section 5(2) of the Act, it shall set aside the order under scrutiny of the Committee. It shall further direct the destruction of the copies of the intercepted material.

(c) If on investigation, the Committee comes to the conclusion that there has been no contravention of the provision of Section 5(2) of the Act, it shall record the finding to that effect”.”

Most significantly, what cannot be just glossed over is then stated in para 12 that, “Therefore, examining the orders of dismissal in the light of the observations made by the Supreme Court (Supra) and the procedure prescribed in section 65-B of the Evidence Act, the very substratum to dispense with the enquiry cannot be held to be justified. The order of dismissal is primarily based on telephonic recorded conversation, which is against the dictum laid down by the Supreme Court, therefore, would tantamount to offend Article 21 of the Constitution of India. Hence, the justification to dispense with enquiry on the basis of telephonic recorded conversation cannot be insulated by the judicial verdict. Consequently the orders of dismissal dated 28th July 2011 (Annexure P-1) are set aside.”

For the sake of clarity, Justice Goutam then envisages in para 13 that, “Considering the nature of allegations, the respondents would be at liberty to hold the departmental enquiry against the petitioners by giving them proper opportunity of hearing and following the procedure of rules of natural justice and thereafter may pass appropriate orders.”

Finally, it is then held in the final para 14 that, “With such observation, these petitions stand disposed of.”

In essence, the Chhattisgarh High Court has made it absolutely clear that phone tapping is a gross violation of Article 21 of the Constitution. The only rider is that phone tapping should have been done in accordance with the procedure established by law. Justice Goutam Bhaduri thus makes the legal position on phone tapping very clear and has cited the relevant case laws also to substantiate his judgment most convincingly, cogently and correctly! Very rightly so!

Sanjeev Sirohi

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