'State Can't Tap Phones Just to Prevent Corruption in Violation of Law': Madras High Court..

The bench of Justice N. Anand Venkatesh opined that the Centre’s authorization to intercept the phone conversations of P. Kishore — then Managing Director of Everonn Education Ltd — was issued without sufficient justification and in violation of the constitutional right to privacy under Article 21.

A bribery FIR was registered by the CBI in August 2011 involving an IRS officer (A1), who allegedly demanded Rs. 50 lakhs to shield the company from tax scrutiny. Kishore (A2) was accused of arranging the bribe, and a friend of the officer (A3) was intercepted carrying the cash. However, the CBI did not apprehend Kishore in possession of the bribe or at the scene.

The Centre had authorized the interception on grounds of “public safety” and “preventing incitement to the commission of an offence".

However, the court noted that these terms cannot be used in a vague or routine manner. Citing the Supreme Court’s landmark ruling in People’s Union for Civil Liberties and K.S. Puttaswamy, the judge held that such surveillance must meet the constitutional tests of necessity, proportionality, and legality.

“Neither the occurrence of public emergency nor interest of public safety is a secretive condition... either would be apparent to a reasonable person,” the court observed referring to the Supreme Court precedents and added that no such justification was visible in the interception order, which appeared to be “mechanical” and “cyclostyled".

Further, the high court held that procedural safeguards under Rule 419-A of the Telegraph Rules — which require review by a committee and periodic oversight — were also not followed, thereby rendering the order illegal.

Importantly, court rejected the authorities' argument that even assuming that the order under Section 5(2) of the Act was without jurisdiction, the evidence so collected was admissible since it is a well settled proposition of law that even illegally collected evidence is admissible provided it is relevant.

Court opined that once the surveillance order was found to be unconstitutional, any material or evidence collected as a result of it would also be tainted. Court also pointed out that in the case at hand, the petitioner was only accused of an offence, hence, the presumption of innocence still applied in his favour.

Referring to the illegality of the interception, the bench held that, “Where the tapping of phones is found to have been done in violation of Section 5(2) of the Act, the order would be clearly unconstitutional. An unconstitutional order is void under Article 13 and no rights or liabilities can flow from it".