A PROJECT

On
PUCL VS UNION OF INDIA, AIR 1997

Subject Name: PUBLIC INTEREST LAWYERING

Supervised by: Submitted by:

Ms Madalsa Ashawat Himakshi Shekhawat

Faculty of Public Interest Lawyering Semester- X, Sec- A

S.S. Jain Subodh Law College

Mansarovar, Jaipur

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 2023

DECLARATION

I hereby declare that the project entitled “PUCL VS UNION OF INDIA, 1997” is submitted
by me in partial fulfilment of the requirements for award of the degree of B.A. LL.B from
S.S. Jain Subodh Law College, Mansarovar, Jaipur. It is a result of my own work and efforts.
Any material used or scripted herein by any other author/researcher/commentator and used
hereinafter has been thoroughly acknowledged. The present work has not been accepted for
any degree, and is also not being currently submitted for any other degree.

Himakshi Shekhawat

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 CERTIFICATE

This is to certify that the project assignment of labour law entitled “PUCL VS UNION OF
INDIA, 1997” submitted by Himakshi Shekhawat of X Semester Sec-A for the partial
fulfilment for requirement for degree of B.A.LL.B from S.S. JAIN SUBODH LAW
COLLEGE, Jaipur embodies the unified work done under the supervision of Ms Madalsa
Ashawat.

Date: Signature:

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 ACKNOWLEGDEMENT

A research work of such great scope and precision could never have been possible without
great co-operation from all sides. Contributions of various people have resulted in this effort.
Firstly, I would like to thank God for the knowledge he has bestowed upon me.

I would also like to take this opportunity to thank Ms Madalsa Ashawat without whose
valuable support and guidance, this project would have been impossible. I would like to thank
the library staff for having put up with my persistent queries and having helped me out with
the voluminous materials needed for this work. I would also like to thank my seniors for
having guided me and culminate this acknowledgement by thanking my friends for having
kept the flame of competition burning, which spurred me on through these days.
And finally, my parents, who have been a support to me throughout my life and has helped
me, guided me to perform my best in all interests of my life, and all my elders who have
always inculcated the best of their qualities in me.

Himakshi Shekhawat

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 RESEARCH METHODOLOGY

The methodology used in this project is doctrinal includes accessing reference books and
other relevant sources from library and using secondary sources as well. The secondary
sources used in this project include the library of, S.S. Jain Subodh Law College,
Mansarovar, Jaipur and other sources from the internet. On the basis of the knowledge gained
from all of the above-mentioned sources a self-analysis of the topic under the study has been
presented in the project. All sources referred to have been given due recognition. The
dimensions of this research include studying of the judgment of the case under the study and
also other cases which relied upon the judgment.

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 TABLE OF CONTENTS

INTRODUCTION 7

RELATED PROVISIONS 9

CASE SUMMARY 10

CONCLUSION 14

BIBLIOGRAPHY 15

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 INTRODUCTION

The Supreme Court’s 1996 judgment in People’s Union for Civil Liberties (PUCL) v. Union
of India was a significant attempt to solve the problem of widespread telephone tapping, and
its influence has been strongly felt in subsequent laws designed to balance the right to privacy
against the state’s power to conduct surveillance. The safeguards against arbitrariness in the
exercise of the state’s surveillance powers designed by the Court continue to apply in the
Internet age. However, new mass surveillance programs being undertaken by the Indian
government that are unprecedented in their scope necessitate a thorough re-examination of
our privacy laws.

The Supreme Court in this decision held that phone-tapping without appropriate safeguards,
and without following legal process, was a violation of individuals’ fundamental right to
privacy. By way of this public interest petition, the Petitioner, the People’s Union of Civil
Liberties (PUCL), challenged the constitutionality of Section 5(2) of the Indian Telegraph
Act, 1885 (the Act) for violating the right to privacy. This was in light of a report on tapping
of politician’s phones published by the Central Bureau of Investigation, showing several
procedural lapses in phone tapping conducted by Mahanagar Telephone Nigam Limited
(MTNL) at the request of Government officials.

The Court, in considering the right to privacy, cited international instruments as well as
Indian and international jurisprudence to affirm the right to privacy and noted that it could
not be violated except by a procedure established by law. They further considered the fact
that Section 5(2) laid down specific situations in which phone tapping could be conducted,
but noted that procedural safeguards for the fair and reasonable exercise of substantive power
were missing. Accordingly, the Court did not strike down Section 5(2), but laid down detailed
guidelines for the exercise of surveillance powers by the executive in order to put a check on
the misuse of these powers and to safeguard the right to privacy. It also criticised the lax
attitude of the government in failing to prescribe appropriate safeguards despite previous
criticism.

In the spring of 1990, Chandra Shekhar (who would soon become the eighth Prime Minister
of India) publicly levelled a sensational allegation against the V.P. Singh-led government of

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the day – that it was illegally tapping the telephones of 27 politicians, including his own. 1 The
allegation snowballed into a national scandal, resulting in a Central Bureau of Investigation
(‘CBI’) inquiry that would reveal just how extensive, commonplace, and illegal telephone
tapping had become during India’s politically turbulent 1980s and early 1990s. The CBI
report opened a Pandora’s box by detailing the excesses of the Rajiv Gandhi regime of the
1980s, which had surveilled not only its opposition, but even its own Cabinet Ministers and
the political leaders of many states.2 It also exposed the inadequate legal framework and
procedural lapses that made such abuses of power possible – tapping was regularly carried
out without proper authorisation, persisted for longer periods than was legally permissible,
and was often based on specious grounds.

The matter reached the Supreme Court of India through a public interest petition filed by the
People’s Union for Civil Liberties. Kuldip Singh, J.’s landmark 1996 judgment in People’s
Union for Civil Liberties (PUCL) v. Union of India 3 (‘PUCL’) affirmed that telephone
tapping infringed the fundamental right to privacy, and created safeguards against
arbitrariness in the exercise of the state’s surveillance powers.

Yet, even though the Court crafted the PUCL guidelines as a temporary solution pending
remedial action by the central government against the misuse of its surveillance powers, the
guidelines cast a long shadow over Indian surveillance law. Their influence continues to be
felt in the age of the Internet, as recent laws governing Internet surveillance derive much
inspiration from the PUCL doctrine.

1
India Today, Scandalous Revelations: Secret Report by CBI contains shocking details of phone tapping ordered
by Congress Govts, February 28, 1991
2
ID
3
People’s Union for Civil Liberties (PUCL) v. Union of India, (1997)

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 RELATED PROVISIONS

CONSTITUTION OF INDIA

Article 19(1)(A): – (1) All citizens shall have the right

 to freedom of speech and expression;4

Article 21: – Protection of life and personal liberty No person shall be deprived of his life or
personal liberty except according to procedure established by law5

THE INDIAN TELEGRAPH ACT, 1885

Section 5(2): –

On the occurrence of any public emergency, or in the interest of the public safety, the Central
Government or a State Government or any officer specially authorised in this behalf by the
Central Government or a State Government may, if satisfied that it is necessary or expedient
so to do in the interests of the 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, for reasons to be recorded in writing, by order, direct that any
message or class of messages to or from any person or class of persons, or relating to any
particular subject, brought for transmission by or transmitted or received by any telegraph,
shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the
Government making the order or an officer thereof mentioned in the order: Provided that the
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.6

4
The Constitution of India, 1950, Article 19(1)(a)
5
The Constitution of India, 1950, Article 21
6
The Indian Telegraph Act, 1885, Section 5(2)

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 CASE SUMMARY

People's Union for Civil Liberties vs. Union of India & Ors.

FACTS

The Petitioner i.e., PUCL, a voluntary organization, filed a public interest petition
challenging the constitutional validity of Section 5(2) of the Indian Telegraph Act, 1885,
which allowed the Central Government or the State Government, during public emergency or
for public safety, to intercept messages if satisfied that it is necessary or expedient so to do on
various grounds including the sovereignty and integrity of India, friendly relations with
foreign states and public order. The Petitioner challenged this section claiming it violated
individuals’ right to privacy in the wake of a report published by the Central Bureau of
Investigations on “Tapping of Politicians Phones”.

ISSUES

A. Whether Section 5(2) of the Act was used to infringe the right to privacy; and

B. Whether there was a need to read down Section 5(2) of the Act to include procedural
safeguards in order to preclude arbitrariness and prevent indiscriminate phone
tapping.

ARGUMENTS

The Petitioner argued that right to privacy was a fundamental right guaranteed under Articles
19(1) and 21 of the Constitution. The Petitioner further contended that to save Section 5(2) of

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the Act from being declared unconstitutional, it would be necessary to read down the
provisions so as to safeguard the right to privacy and while Section 5(2) was vital for the
several state purposes, it was essential to read in procedural safeguards. The Petitioner also
argued that prior judicial sanction, ex parte in nature was the only safeguard that could
eliminate the element of arbitrariness or unreasonableness.

The Respondents, the Union of India, argued that the striking down of Section 5(2) would
injure public interests and jeopardise the security of the state. The Respondents further denied
the allegations of misuse of power as they averred that phone tapping can only be ordered by
an officer specifically authorized by the Central or State Government and only under certain
conditions and was therefore sufficiently checked. They also contended that reasons for
ordering phone tapping had to be recorded and if there was misuse of power, the aggrieved
party could approach the Government to take suitable action. Further, they argued that the
party whose telephone was to be tapped could not be informed as it would defeat the purpose
of phone tapping and it was absolutely necessary to maintain secrecy in the matter.

DECISION

“Telephone-Tapping is a serious invasion of an individual’s privacy. With the growth of

highly sophisticated communication technology, the right to hold telephone conversation, in
the privacy of one’s home or office without interference, is increasingly susceptible to abuse.
It is no doubt correct that every Government, howsoever democratic, exercises some degree
of sub rosa operation as a part of its intelligence out-fit but at the same time citizen’s right to
privacy has to be protected from being abused by the authorities of the day”7

The Court placed reliance on the judgments in Kharak Singh vs. State of U.P. &
Ors.8, Gobind vs. State of MP & Anr. 9 and R. Rajgopal vs. State of Tamil Nadu 10 and noted
that though the Indian Constitution did not expressly provide for a right to privacy, the right
was a part of the right to "life" and "personal liberty" under Article 21 which could not be
curtailed "except according to procedure established by law". It held that only a case-by-case
inquiry would reveal if the right had been infringed or not.

7
People’s Union of Civil Liberties v. Union of India and Another, AIR 1997 SC 568, (1997) 1 SCC 301
8
AIR 1963 SC 1295
9
AIR 1975 SC 1378
10
AIR 1995 SC 264

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The Court observed that “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’” and held
that telephone-tapping would violate Article 21 unless it was permitted under a “procedure
established by law”. The Court also stated that telephone conversations were an exercise of a
citizen’s right to freedom of speech and expression under Article 19(1)(a) and hence
interception of these conversations must be a reasonable restriction under Article 19(2) of the
Constitution.

The Court reviewed the report of the Second Press Commission which stated that “tapping of
telephones was a serious invasion of right to privacy. It is a variety of technological
eavesdropping.” and that the “relevant Statute i.e., Indian Telegraph Act, 1885, a piece of
ancient legislation, does not concern itself with tapping”. Moreover, the report stated that
“tapping cannot be regarded as a tort because the law as it stands today does not know of any
general right to privacy” and recommended that telephones may not be tapped except in the
interest of national security, public order, investigation of crime and similar objectives.

The Court analysed Section 5(2) and noted that the provision clearly laid down conditions
under which interception orders could be given. The first step under this provision was to
satisfy two prerequisites, i.e., ‘occurrence of any public emergency’ or in ‘the interest of
public safety’. The officer authorised by the Government had to be satisfied that it was
“necessary or expedient” in the interest of five grounds enumerated under this section:

A. Sovereignty and integrity of India;

B. Security of the State;

C. Friendly relations with foreign States;

D. Public order; or

E. Preventing incitement to the commission of an offence.

Moreover, the officer was empowered to issue the order for interception only after recording
the reasons in writing. After making these observations, the Court refused to declare Section
5(2) unconstitutional, though it emphasised the need to strictly follow the two statutory
prerequisites and the five grounds enumerated under Section 5(2).

Further, the Court refused to accept the Petitioner’s submission regarding imposition of prior
judicial scrutiny as the only procedural safeguard before passing of interception orders. It

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reasoned that the power to make rules in this regard rests with the Central Government under
Section 7 of the Act and censured the government for not framing proper laws despite the
severe criticism attracted by Section 5(2). However, the Court decided to lay down guidelines
in the interim period in order to rule out arbitrariness, and to protect the right to privacy.

The guidelines laid down broadly entailed the following –

A. Orders for telephone tapping could be issued by the Home Secretary of the Central
Government or a State Government, and this power could be delegated only in an
emergency;

B. The authority making the interception order must consider whether it was necessary to
obtain the information required through such orders;

C. The interception order, unless renewed, would cease to be effective after two months
from the date of issue, and limited the total period of the operation of the order to six
months;

D. Detailed records were to be maintained of the intercepted communication and the

procedure followed;

E. The use of intercepted material was limited to the minimum necessary for the
purposes under the Act, and intercepted material would be destroyed when retention
became unnecessary; and

F. Review committees should be constituted at Central and State levels to assess

compliance with the law.

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 CONCLUSION

The right to privacy is an element of the right to “life” and “personal liberty” guaranteed by
Article 21 of the Constitution, according to the Court. In every scenario involving the right to
privacy, Article 21 is invoked, and this right cannot be reduced unless the procedure
prescribed by law is followed.

Through this case the Supreme Court ruled out that privacy of the citizen is fundamental right
guaranteed by this Constitution. It cannot be infringed by the Government except under
certain specific situations, Phone tapping also comes under infringement of privacy,
Government can tap phones with utmost care and following the whole procedure safeguards
and specified legal process and there should be just reason for tapping of the phones.

In my view the Supreme Court has taken decision for betterment of the citizens since privacy
is also considered vital for an individual and this decision has also given a space to the
Government to sought important information regarding the national security and maintenance
of public order which is also of utmost important.

While PUCL will undoubtedly remain a landmark decision in Indian privacy law, it is
nevertheless imperative that the law keeps pace with rapidly changing times. Surveillance
today is far more pervasive and capable of violating the privacy of the public en masse than it
was eighteen years ago. Experience has shown that the PUCL guidelines have not been as
effective as they were intended to be. The deployment of the largest surveillance programs in
Indian history necessitates a fundamental reimagining of Indian surveillance law if the
Constitutional right to privacy is to be saved from inconsequence. Systemic Parliamentary
sanction of (and oversight over) the government’s surveillance projects is imperative. Finally,
perhaps the idea of surveillance being based on judicial warrants is an idea whose time in
India has finally come.

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 BIBLIOGRAPHY

SITES REFERRED:

 https://thelegallock.com/peoples-union-of-civil-liberties-pucl-v-union-of-india/
 https://lawfoyer.in/peoples-union-of-civil-liberties-v-union-of-india-another/
 https://privacylibrary.ccgnlud.org/case/pucl-vs-union-of-india
 http://docs.manupatra.in/newsline/articles/Upload/E90FA90F-0328-49F2-B03F-
B9FBA473964F.pdf

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