India: Phone Tapping And Recording Of Telephonic Conversations – Right To Privacy And Indian Law

Last Updated: 4 June 2018
Article by Vijay Pal Dalmia, Partner

By Vijay Pal Dalmia, Advocate
Supreme Court of India and High Court of Delhi
Partner Vaish Associates Advocates
Email : vpdalmia@vaishlaw.com Mobile No. : +919810081079

To understand the above issue it is pertinent to examine Article 21 of Constitution of India ("Constitution"). In terms of Article 21, no person shall be deprived of his life or personal liberty except according to procedure established by law. In a plethora of judgments 'Right to Privacy' has been held as an integral part of the 'Right to Life' and 'Personal Liberty' enshrined under Article 21 of the Constitution.

Right to privacy, by itself, has not been defined under the Constitution, however, the Apex Court in numerous cases has held that the right to hold telephonic conversation without any interference is a part of the right to privacy.

In the judgment of the Hon'ble Supreme Court in People's Union for Civil Liberties v. Union of India AIR 1997 SC 568, wherein it was held that right to privacy was a part of right to life and personal liberty enshrined under Article 21 of the Constitution and once a fact is established as a case constituting a right to privacy, Article 21 would be attracted and the said right cannot be curtailed, except according to the procedure established by law. The relevant para of the judgment reads as under:

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19. The right to privacy - by itself - has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of one's home or office without interference can certainly be claimed as "right to privacy". Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is a part of modern man's life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of man's private life. Right to privacy would certainly include telephone-conversation in the privacy of one" home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.

**

Similarly, in the case of R.M. Malkani v. State of Maharashtra 1973 AIR 157 the Hon'ble Supreme Court observed as under:

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30. ...Article 21 was invoked by submitting that the privacy of the appellant's conversation was invaded. Article 21 contemplates procedure established by law with regard to deprivation of life or personal liberty. The telephonic conversation of an innocent citizen will be protected by Courts against wrongful or high handed interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. It must not be understood that the Courts will tolerate safeguards for the protection of the citizen to be imperilled by permitting the police to proceed by unlawful or irregular methods.

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Tapping of conversation between husband and wife

In the case of Rayala M. Bhuvaneswari vs Nagaphanender Rayala AIR 2008 AP 98 the Hon'ble High Court of Andhra Pradesh held that the act of tapping itself by the husband of the conversation of his wife with others was illegal and it infringed the right of privacy of the wife. In this case the husband was recording the conversations of his wife. The consent of the parties to the conversation was not there. In paragraph 3 of the said judgment the Hon'ble court observed as under:

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3. Certain astonishing facts have come to light during the hearing of this revision. One of the facts relate to the purity of the relation between the husband and wife. Without the knowledge of the wife, the husband was recording her conversation on telephone which she was making with her friends and parents in India. If the husband is of such a nature and has no faith in the wife even about her conversations to her parents, then the institution of marriage itself becomes redundant. There should be some trust between husband and wife and in any case, in my view, the right of privacy of the wife is infringed by her husband by recording her conversation on telephone to others and if such a right is violated, which is fundamental, can such husband, who has resorted to illegal means, which are not only unconstitutional, but also immoral, later on, rely on the evidence gathered by him by such means. Clearly, it must not be permitted.

**

From above case laws, it is amply clear that 'Right to Privacy' includes right to hold telephonic conversation without any interference. However, it may be noted that 'Right to Privacy' is not absolute and is subject to procedure established by law. The relevant provisions of the Indian Telegraph Act, 1885 ("Indian Telegraph Act") wherein that interception of telegraphic messages, including telephone call has been permitted provided the prescribed procedures have been adhered to.

Section 1AA of the Indian Telegraph Act defines the term 'telegraph' as follows:

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"telegraph" means any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images, and sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions, Radio waves or Hertzian waves, galvanic, electric or magnetic means

Explanation.--"Radio waves" or "Hertzian waves" means electro magnetic waves of frequencies lower than 3,000 giga-cycles per sound propagated in space without artificial guide."

**

Telephone being a form of telegraph also falls under the purview of the Indian Telegraph Act.

Section 5 of the Indian Telegraph Act empowers the government to take possession of licensed telegraphs and to order interception of messages. On the occurrence of any public emergency, or in the interest of public safety, the Central government or State government or any person specifically authorized by the Central or State government, if satisfied that it is necessary or expedient to do so, may take temporary possession of any telegraph established, maintained or worked by any person licensed under the Indian Telegraph Act.

Further, in the case of Peoples Union of Civil Liberties v. Union of India, as discussed supra, the Hon'ble Supreme Court has also laid down certain broad guidelines, which the Government is required to adhere to, while intercepting any message as per Section 5(2) of the Telegraph Act.

A perusal of the Indian Telegraph Act and judicial pronouncements on the issue of telephone recording leads to an understanding that interception of telegraphic messages, including telephone call by the Central government or State government or any person specifically authorized by the Central or State government is to be done in accordance with the relevant prescribed procedures.

The terms 'intercept' and 'interception' have not been defined in the Indian Telegraph Act and the same needs to be understood in light of the meaning accorded to these terms per the dictionary and by drawing inference from other relevant legislations. The Major Law Lexicon, 4th Edition, 2010 defines the term 'interception' as 'the act of listening in and recording communications, intended for another party for the purpose of obtaining intelligence; the act of engaging an enemy force on its way towards its objective.'

Further, The Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 define 'intercept' and 'interception device' as follows:

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"intercept" with its grammatical variations and cognate expressions, means the aural or other acquisition of the contents of any information through the use of means, including an interception device, so as to make some or all of the contents of a information available to a person other than the sender or recipient or intended recipient of that communication and includes –

  1. Monitoring of an such information by means of a monitoring device
  2. Viewing, examination or inspection of the contents of any direct or indirect information; and
  3. Diversion of any direct or indirect information from its intended destination to any other destination.

"interception device" means any electronic, mechanical, electro-mechanical, electro-magnetic or optical or other instrument, device, equipment or apparatus which is used or can be used, whether by itself or in combination with any other instrument, device, equipment or apparatus, to intercept an information; and any reference to an interception device, includes, where applicable, a reference to monitoring device;

**

In the case of R.M. Malkani v. State of Maharashtra, as discussed supra, the Hon'ble Supreme Court observed as under:

"20. The Police Officer in the present case fixed the tape recording instrument to the telephone instrument with the authority of Dr. Motwani. The Police Officer could not be said to intercept any message or damage or tamper or remove or touch any machinery within the meaning of Section 25 of the Indian Telegraph Act. The reason is that the Police Officer instead of hearing directly the oral conversation between Dr. Motwani and the appellant recorded the conversation with the device of the tape recorder. The substance of the offence Under Section 25 of the Indian Telegraph Act is damaging, removing, tampering, touching machinery battery line or post for interception or acquainting oneself with the contents of any message. Where a person talking on the telephone allows another person to record it or to hear it it can-not be said that the other person who is allowed to do so is damaging, removing, tampering, touching machinery battery line or post for intercepting or acquainting himself with the contents of any message. There was no element of coercion or compulsion in attaching the tape recorder to the telephone. There was no violation of the Indian Telegraph Act. The High Court is in error on that point.

...

29. In the present- case the recording of the conversation between Dr. Motwani and the appellant cannot be said to be illegal because Dr. Motwani allowed the tape recording instrument to be attached to his instrument. In fact, Dr. Motwani permitted the Police Officers to hear the conversation. If the conversation were relayed on a microphone or an amplifier from the telephone and the police officers heard the same they would be able to give direct evidence of what they heard. Here the police officers gave direct evidence of what they saw and what they did and what they recorded as a result of voluntary permission granted by Dr. Motwani. The tape recorded conversation is contemporaneous relevant evidence and therefore it is admissible. It is not tainted by coercion or unfairness. There is no reason to exclude this evidence.

In light of the above, in our considered view, the act of recording by any person (being the sender or recipient of the information) of a telephone call which originates from or ends at his telephone cannot be construed as an 'interception' within the meaning of the Indian Telegraph Act, since a recorded conversation to fall within the ambit of 'interception' the content of the information is to be made available to a person other than the sender and the recipient or intended recipient of that communication.

In view of the above discussion, it can be said that there is no legal impediment in recording the telephonic conversation with prior written consent of all the parties to the telephonic conversation and the same is not in violation of right to privacy enshrined under Article 21 of the Constitution and shall also be outside the ambit of interception.

However, the recorded conversations can only be used for the purposes for which the consent has been obtained.

It is also advisable to comply with section 43A of the Information Technology Act, 2000 read with Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 ("SPDI Rules"). In accordance with section 43A of the Information Technology Act, 2000 and SPDI Rules, a body corporate or any person who on behalf of body corporate collects, receives, possess, stores, deals or handle information of provider of information shall provide a privacy policy for handling of or dealing in personal information including sensitive personal data. Such body corporate shall ensure that the same is available for view by such provider who has provided the same under lawful contract and such policy shall be published on the website of such body corporate and shall provide for the contents/instructions spelt out in the SPDI Rules.

Indian Supreme Court has declared Privacy as a Fundamental Right. As the Right to privacy has become enumerated right under article 21 and now forms the part of basic structure, it cannot be taken away and infringed upon without the procedure established by law which needs to be fair, just and reasonable and any infringement of the same would lead to the infringement of fundamental rights. However, it is not an absolute right but subject to certain reasonable restrictions. The right to privacy broadly encompasses physical privacy, informational privacy and decisional autonomy. The interplay of technological advances and the right to privacy in the digital age needs to be closely scrutinised. The test to decide the validity of any such restriction is that it is reasonable based on fair procedure and free from arbitrariness or selective targeting or profiling. "It can also be based on compelling state interest. This is where a cautionary note is in order. Courts exercising writ jurisdiction should be cautious about the nature of the relief they grant based on wide and open-ended claims of breach of privacy. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being." (Justice K S Puttaswamy and Anr. Vs. UOI, Writ Petition (Civil) no. 494 of 2012 https://supremecourtofindia.nic.in/pdf/LU/ALL%20WP(C)%20No.494%20of%202012%20Right%20to%20Privacy.pdf ) (MANU/SCOR/14232/2018)

This means, even if calls are recorded thorough just, fair and reasonable procedure established by law (equivalent to due procedure established by law), it cannot be used in public hearing as the individual's right to privacy in this regard is considered as absolute, although a fair, reasonable and just procedure would allow for such breach. (ibid)

The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well. The creation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the state. The legitimate aims of the state would include for instance protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits. So, the telephonic conversations between two people can also be equated to the part of data and hence the strict adherence to the data protection and privacy infringement must be complied with and such rights cannot be breached by mere suspicion without following a reasonable procedure. (ibid)

© 2018, Vaish Associates Advocates,
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Advocates, 1st & 11th Floors, Mohan Dev Building 13, Tolstoy Marg New Delhi-110001 (India).

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