49
emergency/public safety is absent from Section 69 of the
IT Act. This inexplicable difference in Section 5(2) of the
Telegraph Act and Section 69 of the IT Act, in itself, is
evidence that Section 69 of the IT Act is capricious and
irrational (especially given the absence of judicial
oversight), apart from being disproportionate, excessive
and unreasonable.
XXX.
BECAUSE as would be evident from the Wiretapping
judgment (supra), the trigger requirement of a public
emergency or public safety also brings in an element of
transparency, as is evident from the extract below: “28. Section 5(2) of the Act permits the interception of
messages in accordance with the provisions of the said
section. “Occurrence of any public emergency” or “in
the interest of public safety” are the sine qua non for the
application of the provisions of Section 5(2) of the Act.
Unless a public emergency has occurred or the interest
of public safety demands, the authorities have no
jurisdiction to exercise the powers under the said
section. Public emergency would mean the prevailing of
a sudden condition or state of affairs affecting the
people at large calling for immediate action. The
expression “public safety” means the state or condition
of freedom from danger or risk for the people at large.
When either of these two conditions are not in
existence,
the
Central
Government
or
a
State
Government or the authorised officer cannot resort to
telephone-tapping even though there is satisfaction that
it is necessary or expedient so to do in the interests of
sovereignty and integrity of India etc. In other words,
even if the Central Government is satisfied that it is
necessary or expedient so to do in the interest of the
sovereignty and integrity of India or the security of the
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