The Supreme Court of India addressed a Public Interest Litigation challenging the constitutional validity of Section 5(2) of the Indian Telegraph Act, 1885, which permits government interception of communications for reasons such as national security and public order. PUCL argued that this provision infringed upon the fundamental right to privacy, lacked adequate procedural safeguards, and was susceptible to misuse. The Supreme Court upheld the constitutional validity of Section 5(2), acknowledging the necessity of such powers for maintaining sovereignty and security. Instead, it underscored the importance of adhering to the two-tier test outlined in the Telegraph Act, which requires either the occurrence of a ""public emergency"" or concerns related to ""public safety."" Additionally, the court stressed that interception orders must be issued solely on the grounds explicitly permitted under the provision.
The jurisprudence surrounding the terms ""public emergency"" and ""public safety"" is worth examining, as the court delved into their meanings. It observed that although the Act does not define ""public emergency,"" its association with ""public safety"" implies that both terms influence each other’s interpretation. The court clarified that ""public emergency"" refers to a sudden condition or situation affecting the general public that demands immediate action, while ""public safety"" pertains to a state of freedom from danger or risk for the community at large. The court established safeguards to ensure that phone-tapping orders are not issued arbitrarily. Such orders can only be authorized by the Home Secretary of the Government of India or the Home Secretaries of State Governments. In urgent cases, this authority may be delegated to an officer in the Home Department not below the rank of Joint Secretary, and a copy of the order must be sent to the Review Committee within a week of issuance. The orders must clearly specify the communications to be intercepted, the persons involved, and the manner of disclosing the intercepted material. Before issuing an order, authorities are required to assess whether it is necessary under Section 5(2) and if the information sought can reasonably be obtained through other means. Interception orders are valid for a maximum period of two months, with the possibility of renewal if justified, but cannot extend beyond six months in total. Additionally, intercepted material must be destroyed once it is no longer required under Section 5(2). A Review Committee is to be established at both the central and state levels, comprising senior officials such as the Cabinet Secretary, Law Secretary, and Secretary of Telecommunications at the central level, and the Chief Secretary, Law Secretary, and another appointed member at the state level. This committee must review all orders within two months to ensure compliance with Section 5(2). If a contravention is found, the committee is empowered to annul the order and direct the destruction of the intercepted material; otherwise, it will record its findings of compliance.