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Following a Central Bureau of Investigation report highlighting incidents of telephone-tapping by the Government, the petitioner (a voluntary organisation) filed a writ petition challenging the constitutional validity of s 5(2) of the Indian Telegraph Act 1885. Section 5(2) authorises the Government, in the event of the �occurrence of any public emergency, or in the interest of the public safety�, to intercept messages in five enumerated situations if �satisfied that it is necessary or expedient so to do�. The petitioner�s primary contention was that sufficient procedural safeguards to rule out the arbitrary exercise of power under the Act should be read in to s 5(2). Although s 7(2)(b) of the Act empowers the Government to prescribe rules providing for �the precautions to be taken for preventing the improper interception or disclosure of messages�, no such rules had been framed by the Government. The petition also raised the question of whether telephone-tapping by the Government constituted an infringement of the constitutional right to freedom of speech and expression (Art 19(1)(a)) and to life and personal liberty (Art 21).

In laying down procedural safeguards for the exercise of power under s 5(2), it was held that:

1. The right to privacy is implicit in the constitutional guarantee of a citizen�s right to life and personal liberty under Art 21 and cannot be curtailed �except according to procedure established by law� (Kharak Singh v State of UP & Ors [1964] 1 SCR 332 (Ind SC), Gobind v State of MP (1975) 2 SCC 148 (Ind SC) and Rajagopal (alias R R Gopal) & Anor v State of TN (1994) 6 SCC 632 (Ind SC); [1996] 2 CHRLD 215 followed).
2. The right to privacy certainly includes telephone conversations in the privacy of one�s own home or office and, therefore, telephone-tapping infringes Art 21 unless it is permitted by a procedure established by law.
3. A person talking on the telephone is exercising his or her right to freedom of speech and expression. Telephone-tapping would also infringe Art 19(1)(a) unless it comes within the restrictions on this right set out in Art 19(2).
4. Article 17 of the International Covenant on Civil and Political Rights, which protects the individual from arbitrary or unlawful interference with his or her privacy, is not contrary to any part of municipal law and Art 21 has, therefore, been interpreted in conformity with the international law (dicta of Sikri CJ in Kesavananda Bharati v State of Kerala (1973) 4 SCC 225, 333 (Ind SC), Khanna J in ADM Jabalpur v Shivakant Shukla (1976) 2 SCC 521, 754 (Ind SC) and Krishna Iyer J in Jolly George Varghese v Bank of Cochin (1980) 2 SCC 360 (Ind SC) applied).
5. The authorities have no jurisdiction to exercise the powers under s 5(2) unless a public emergency has occurred or the interest of public safety so demands. �Public emergency� means �the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action�, while �public safety� means �the state or condition of freedom from danger or risk for the people at large�. Neither the occurrence of a public emergency nor the interest of public safety are secretive conditions or situations; either of the situations would be apparent to a reasonable person.
6. Section 5(2) clearly lays down the situations or conditions under which the power to intercept messages or conversations can be exercised but the substantive law as laid down in the provision must have procedural backing so that the exercise of power is fair and reasonable. The procedure itself must be just, fair and reasonable and must rule out anything arbitrary, freakish or bizarre (Maneka Gandhi v Union of India (1978) 1 SCC 248 (Ind SC) applied). In the absence of just and fair procedure for regulating the exercise of power under s 5(2), it is not possible to safeguard the rights of the citizens guaranteed under Arts 19(1)(a) and 21.
7. In the absence of any provision in the statute, it is not possible to provide for the procedural safeguard of prior judicial scrutiny before any order is passed under s 5(2). It is for the Government to make rules on this subject under s 7 but until it does so the right to privacy of an individual has to be safeguarded. In order to rule out arbitrariness in the exercise of power under s 5(2), and until the time the Government lays down just, fair and reasonable procedures under s 7(2)(b), it is necessary for the court to lay down procedural safeguards for the exercise of power under s 5(2).