In a judgment handed down on October 22, a two-judge bench of the Bombay High Court found that the Central Bureau of Investigation's ["CBI"] surveillance of a businessman accused of paying bribes was illegal. The Court quashed the surveillance orders, and directed the destruction of the call records. The judgment is important for three reasons: (i) it is an model of principled constitutional adjudication, following both the letter of the law and applicable precedent; (ii) it extends the logic of the Supreme Court's privacy judgment ["Puttaswamy"] in the context of unconstitutionally obtained evidence; and (iii) it provides a genuine and enforceable remedy upon a finding that fundamental rights have been breached.



Principled Constitutional Adjudication The facts of the case were simple. There were three surveillance orders (29th October 2009, 18th December 2009, and 24th February, 2010), which constituted the legal bases for the interception of the petitioner's phone calls. The petitioner argued that these orders were both ultra vires the Telegraph Act, as well as the Puttaswamy judgment. As the call records had been used in the charge-sheet against the petitioner, it was also argued that those records should be destroyed, and could not be part of the case against him. The Bombay High Court (Jamdar and More JJs) went straight to the text of the Telegraph Act. Justice More noted that Section 5(2) of the Act made it clear that telephone interception was permissible only under one of two circumstances: the existence of a public emergency, or a threat to public safety. This was obviously not a public emergency, so the key phrase was "public safety." More J. then referred to the judgment of the Supreme Court in PUCL v Union of India(1997), where "public safety" had been clearly defined as "the state or condition of freedom from danger or risk for the people at large… [that would be] apparent to a reasonable person." He then noted that the PUCL judgment had also set out procedural safeguards in cases of surveillance, that were to be treated as enforceable rules under Section 5 of the Telegraph Act. More J. went on to observe that the judgment in PUCL had been endorsed by the nine-judge bench of the Supreme Court in Puttaswamy. This also meant that contrary precedent in R.M. Malkani v State of Maharashtra – that had held that telephone interception did not violate any fundamental rights – now stood overruled. Puttaswamy had also held that any restriction upon the right to privacy had to satisfy the proportionality standard. More J. then held that the directions in PUCL conformed to the proportionality standard, and were evidently binding upon the Bombay High Court. Applying the law to the facts, More J. found that it was abundantly clear that there was no threat to "public safety", following PUCL's definition. Therefore, "it was impermissible to take resort to telephone tapping." (para 16) He noted that "even at this stage, from the affidavits filed by the Respondents or the charge-sheet, the Respondents could not justify any ingredients of risk to the people at large or interest of the public safety." (para 17) Consequently: We are satisfied that in peculiar fact of the instant case, the impugned three interception orders neither have sanction of law nor issued for legitimate aim, as sought to be suggested. The impugned three interception orders could not satisfy the test of "Principles of proportionality and legitimacy" as laid down by the nine judges' constitution bench decision in K. T. Puttaswamy (supra). We, therefore, have no hesitation in holding that all three impugned orders are liable to be set aside. Accordingly, we quash and set aside the same. (para 19) Now this may look like a straightforward application of law – and it is – but there are two points that I want to highlight here. The first is the unambiguous understanding of the legal standard laid out in Puttaswamy, and its application. Puttaswamy makes clear that in cases where fundamental rights are infringed, it is not enough for the government to cite law and order, and for the Court to engage in an undefined balancing exercise (that somehow ends up being resolved in favour of the government). Rather, Puttaswamy's proportionality standard is a four-step test that requires, inter alia, government to show that there is a legitimate aim, that the infringing action is rationally connected to that aim, that it is necessary (i.e., the least restrictive option to achieve that aim), and that it is proportionate (i.e., the benefits outweigh the costs of infringing rights). The Bombay High Court makes it clear that the government cannot avoid justifying its actions under that standard.



Secondly, in recent times, we have seen far too often that courts have not only given such overriding importance to the government's stated goals ("public interest", "national interest", "national security" etc.), but have also let the government define what the content of these phrases is. This has been most prominently visible in the Kashmir Cases (discussed on this blog), where the invocation of "national security" has acted as an impenetrable shield against any further judicial scrutiny. But it has also been visible elsewhere – in the courts' recent jurisprudence on anticipatory bail, for example, or in its jurisprudence on bans upon organisations, bail under the UAPA, the concept of "custodial interrogation", and of course the Supreme Court's recent use of Article 142 to provide legal cover to the compulsory taking of voice samples. In short, courts have increasingly become fixated on the governmental imperatives of law and order, treating procedural rights and safeguards as nuisances that need to be swept aside in order to ensure that "public interest" is satisfied. In that context, the Bombay High Court's decision to straightforwardly apply the law as well as constitutional precedent, leading to the inescapable conclusion that surveillance was illegal, is most refreshing. Notice that the Court could have decided the other way as well: it could have held, for instance, that corruption is so grave a problem that adequately prosecuting it is indeed in the "interests of public safety." This, of course, would have twisted the meaning of "public safety" out of all recognition – but it is not a reasoning technique that we are unfamiliar with (recall, for example, the Supreme Court's interpretation that "migration" fell within the meaning of "external aggression", in Sarbananda Sonowal's Case). Instead, the Bombay High Court's judgment is a reminder that the "balance" between governmental goals and individual rights has already been struck in the text of statutes (providing procedural safeguards) and in constitutional decisions that lay out doctrines like proportionality. The job of a court now is to straightforwardly apply text and precedent, and stand by the legal conclusion that follows from that application. The Remedy Equally important is the Court's remedy. The Bombay High Court noted that in PUCL, it had been made clear that if the Review Committee found that telephone interception was illegal, copies of the intercepted material would have to be destroyed. This had also been adopted by Rule 419(A)(17) of the Telegraph Rules. Consequently, More J. noted: … having held that the impugned interception orders have been issued in contravention of the provisions of section 5(2) of the Act, we have no option but to further direct the destruction of intercepted messages. (paragraph 21) The Court also pointed out that the CBI itself had been taking conflicting stands in court about the legal foundation of the orders, and the actions of the Review Committee – a practice that the Court strongly deprecated (paragraph 28). More J. found, in addition, that the successive interception orders were carbon copies of each other, and had evidently been passed without application of mind – a clear breach of the statute.



Unconstitutionally Obtained Evidence The Respondents argued, however, that even if there had been illegality in the collection of the evidence, they should be entitled to use it in the course of the criminal prosecution. They relied upon several judgments that had held that as long as evidence was relevant, it could be introduced in a trial, regardless of the legality of how it was obtained. The Court's response to this argument is perhaps the most remarkable part of the judgment. After distinguishing the relevant precedent (including the judgment in Pooran Mal, More J held:

We may also add here that if the directions of the Apex Court in PUCL'case (supra) which are now re-enforced and approved by the Apex Court in K. T. Puttaswamy (supra) as also the mandatory rules in regard to the illegally intercepted messages pursuant to an order having no sanction of law, are permitted to be flouted, we may be breeding contempt for law, that too in matters involving infraction of fundamental right of privacy under Article 21 the Constitution of India. To declare that dehorse the fundamental rights, in the administration of criminal law, the ends would justify the means would amount to declaring the Government authorities may violate any directions of the Supreme Court or mandatory statutory rules in order to secure evidence against the citizens. It would lead to manifest arbitrariness and would promote the scant regard to the procedure and fundamental rights of the citizens, and law laid down by the Apex Court. (paragraph 39) This is a hugely important holding. I have argued elsewhere that in Selvi v State of Karnataka, a three-judge bench of the Supreme Court had drawn a crucial distinction between illegally obtained evidence (admissible if relevant) and unconstitutionally obtained evidence (inadmissible under all circumstances). Evidence obtained in breach of fundamental rights, in other words, could not then be used in court against the citizen. Although the Bombay High Court did not cite Selvi, it did cite Puttaswamy (which endorsed Selvi), and more importantly, it provided a strong rationale for this: that to hold on the one hand that a certain method of collecting evidence was unconstitutional, while also allowing the State to use the evidence so collected, would not only be arbitrary, but would also ensure that fundamental rights and individual safeguards remained parchment barriers against the State.



Conclusion In each of its three conclusions – on illegality, on the remedy, and on evidence – the Bombay High Court, as I have shown, engaged in a textbook application of law and precedent. It faithfully applied existing standards balancing individual procedural safeguards against the imperatives of law and order, found that under those standards surveillance was clearly illegal, and then went through with the consequences that followed. What makes it remarkable, of course, is the number of recent judgments that appear to have given a go-by to these standards by invoking the imperatives of the State. It is also remarkable, I think, for another reason: the Puttaswamy judgment was hailed as a new dawn for constitutionalism (Constitutionalism 3.0, as someone commented) precisely because of its categorical assertion that the individual was at the heart of the constitutional order, that infringements of individual rights must be limited to the strict confines of what was constitutionally permitted, and must be justified as such by the State. Puttaswamy was not just a simple finding that privacy was a fundamental right under the Constitution, but the reasoning of the nine judges brought hope that it would lay the foundation for transforming how civil rights adjudication happens: adjudication that would stop treating – as K.G. Kannabiran once said – the "restrictions" as fundamental and the rights as contingent, and that would stop providing automatic normative priority to the reasons of State. And at the time of Puttaswamy, I had written that: But we must all be equally clear about the fact that the real task will begin now: it will begin with the first bench that is asked to apply Puttaswamy to a concrete case where privacy runs up against reasons of State, and it will continue in the months, years, and decades to come. The task is not simply to apply Puttaswamy, but to use Puttaswamy to craft a genuinely progressive civil rights jurisprudence, where the original constitutional compact – that individual rights are not subordinate to "public good", "social good", "public interest" (or any other variant of the phrase) – is restored. And that, now, is the responsibility of citizens, of lawyers, and of course, of the judges who will be called upon to adjudicate privacy and liberty claims in the wake of this judgment. For judges, indeed, it is a challenge: to be true to the animating spirit of Puttaswamy, and make the hard decision to tell the State that although its aim may be laudable, its motives unimpeachable, and its method beneficial, under the Constitution of India, it nonetheless cannot have what it wants. I think it is fair to say that the last few months have severely tested this cautious optimism, expressed more than two years ago. From that perspective, the Bombay High Court judgment was beautiful to read, because it indicated the difference that Puttaswamy can and could make, and it provided a glimpse of Puttaswamy's promise to initiate a transformative civil rights jurisprudence, a promise that had so enchanted us at the time.



The enchantment may have worn off, but the hope remains!