Tapping phone lines, recording calls without consent is breach of privacy: Delhi High Court in Sanjay Pandey bail order

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The Delhi High Court on Thursday observed that tapping phone lines or recording calls of individuals without their consent is “breach of privacy” [Sanjay Pandey v Directorate of Enforcement].

Single-judge Justice Jasmeet Singh said that the right to privacy guaranteed under Article 21 of the Constitution demands that phone calls cannot be recorded without consent.

“I am prima facie of the view that tapping phone lines or recording calls without consent is a breach of privacy. The right to privacy enshrined under Article 21 of the Constitution demands that phone calls not be recorded. Only with consent of the individuals concerned, can such activity be carried out otherwise it will amount to breach of the fundamental right to privacy,” the Court said.

Justice Singh cited the Supreme Court’s judgement in KS Puttaswamy v Union Of India to say that right to privacy is inalienable and attached to every individual as a precondition for being able to exercise their freedom.

“The facets of privacy include right of non-interference with the individual body, protection of personal information and autonomy over personal choices,” the Court held.

The observations were made in the order granting bail to former Mumbai Police chief Sanjay Pandey in a money laundering case registered by the Enforcement Directorate (ED).

The ED’s case arose out of a First Information Report (FIR) registered by the Central Bureau of Investigation (CBI) alleging that phone calls of the employees of National Stock Exchange (NSE) were recorded by iSec Services Private Ltd, a company founded by Pandey.

It was alleged that illegal tapping of MTNL phones was contrary to the Telegraph Act, several provisions of the Indian Penal Code (IPC), Prevention of Corruption Act as well as the Information Technology Act.

Though Justice Singh concluded that the NSE as well as iSec disregarded the aspect of privacy and consent in recording the calls but these prima facie violations of the Telegraph Act do not constitute an offence under the Prevention of Money Laundering Act, it held while granting bail to Pandey.

Senior Advocate Akhil Sibal and advocates Aditya Wadhwa, Siddharth Sunil, Shivansh Agarwal, Pranay Mohan, Sanya Kumar and Ranbir Singh appeared for Pandey.

ED was represented through Additional Solicitor General SV Raju and advocates Zoheb Hossain, Vivek Gurnani and Ankit Bhatia.

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