Why in news?

Can the government tap phones of suspects before a crime is committed? Two recent High Court rulings—by the Madras and Delhi HCs—offered differing answers, prompting a closer look at India’s phone-tapping laws and judicial interpretations.

What’s in Today’s Article?

• Legal Framework for Phone Tapping in India
• Differing High Court Views on Phone Tapping in Economic Offences
• Supreme Court’s Safeguards on Phone Tapping

Legal Framework for Phone Tapping in India

• The government’s authority to intercept communication is governed by three laws:
  • The Indian Post Office Act, 1898 (for postal communication),
  • The Indian Telegraph Act, 1885 (for voice calls), and
  • The Information Technology Act, 2000 (for electronic messages and emails).
• Section 5(2) of the Telegraph Act, originally meant for telegrams but now extended to phone calls, permits interception during a “public emergency” or “in the interest of public safety.”
• However, such surveillance must meet strict constitutional standards, as it encroaches upon fundamental rights like free speech and privacy.
• Permissible grounds include threats to sovereignty, state security, public order, or prevention of incitement to crime.

Differing High Court Views on Phone Tapping in Economic Offences

• Both the Delhi and Madras High Courts reviewed phone-tapping orders under the legal ground of “preventing incitement to the commission of an offence.”
• The central question was whether economic offences could qualify as a “public emergency” or a matter of “public safety.”
• Delhi High Court
  • In June 2025, the court upheld a 2017 phone-tapping order in a high-value corruption case involving a Rs 2,149.93 crore contract.
  • The Court ruled that the scale and impact of corruption justified the interception as a matter of public safety, citing its potential to erode trust in public institutions and threaten economic stability.
• Madras High Court
  • In July 2025, the court quashed a 2011 interception order in a bribery case involving Rs 50 lakh.
  • The Court ruled that tax evasion does not meet the bar of a “public emergency” under Section 5(2).
  • The court criticised the use of surveillance to “manufacture offences” and held that evidence collected through such tapping cannot be used in court.
  • It also cited a 2011 government press note stating that the law does not permit phone-tapping to prevent tax evasion.

Supreme Court’s Safeguards on Phone Tapping

• In the landmark 1997 People’s Union Of Civil Liberties vs Union of India case, the Supreme Court upheld the constitutional validity of Section 5(2) of the Telegraph Act but laid down strict procedural safeguards.
• Phone tapping orders can only be issued by the Home Secretary at the state or central level, and cannot be delegated to officers below the rank of Joint Secretary.
• The authority must also assess whether the required information could be obtained through other means.
• A review of the interception order must occur within two months by a committee comprising:
  • the Cabinet Secretary, Law Secretary, and Telecom Secretary at the Centre—or
  • the Chief Secretary, Law Secretary, and Home Secretary at the state level.
• These safeguards are also codified in Rule 419-A (17) of the Telegraph Rules.