1. Facts
1.1. The Petitioner filed an application under Section 65(B) of the Indian Evidence Act, 1872 read with Section 14 of the Family Court Act, 1984 whereby the Petitioner intended to place on record an alleged telephonic conversation between the Respondent (the wife of the Petitioner) and the Respondent's mother. The application was rejected by the trial court vide judgment dated 17 December 2022.
1.2. In the present case, the petitioner challenged the said judgment for review before the Hon'ble High Court of Himachal Pradesh.
2. Issues
2.1. Whether the recorded telephonic conversation between the respondent-wife and her mother is admissible as evidence in court.
2.2. Whether the recorded telephonic conversation infringes the fundamental right to privacy under Article 21 of the Indian Constitution.
3. Observations and Decision
3.1. The Hon'ble Court observed that the right to privacy by itself has not been explicitly identified under the Indian Constitution. As a concept, it is broad and moralistic to define it judicially. Whether the right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case.
3.2. The telephone is one of the basic necessities of man's life, and almost everyone carries a mobile phone in their pockets. Hence, conversations over the telephone are a part of modern-day lifestyle and the conversations over it are often intimate and confidential character.
3.3. The Hon'ble Court acknowledged the fact that telephone conversation is an important facet of an individual's private life. The right to hold a telephone conversation in the privacy of one's home/office without interference can certainly be claimed as a "Right to Privacy." Telephone tapping by illegal means for collection of evidence would, therefore, infract Article 21 of the Constitution of India, unless it is permitted under the procedure established by the law.
3.4. The court referenced the Supreme Court's ruling in People's Union for Civil Liberties (PUCL) Vs. Union of India and Anr, 1997 (1) SCC 301, where it was declared that: -
- The right to privacy is an intrinsic part of the right to life and personal liberty guaranteed under Article 21 of the Indian Constitution. This right can only be curtailed by a procedure established by law.
- The telephone conversations, whether at home or in the office, fall within the scope of the right to privacy. Telephone tapping is considered an infringement of Article 21 unless legally authorized.
- The telephone conversations are directly linked to the right to freedom of speech and expression under Article 19(1)(a) of the Indian Constitution. This freedom guarantees the right to express one's beliefs and opinions without restraint, whether orally, in writing, through visual media, or any other form of communication. A telephone conversation constitutes an exercise of this fundamental right. Therefore, unauthorized telephone tapping also violates this fundamental right, unless it falls under the reasonable restrictions permitted by Article 19(2) of the Indian Constitution.
3.5. In the case of K.S. Puttaswamy & Anr. Vs. Union of India & Ors., 2017 (10) SCC 1, which further affirmed that the right to privacy is an integral part of Article 21 of the Constitution. Personal communications, such as telephone conversations, are safeguarded under the comprehensive concept of privacy and cannot be violated indiscriminately.
3.6. The court underscored that while phone recordings can be admissible as evidence, their use is strictly contingent upon compliance with legal procedures, particularly obtaining necessary authorization as mandated by laws such as the Indian Telegraph Act, 1885, and the Information Technology Act, 2000.
3.7. Based on the above discussion and reference to the ratio in the judgments, the Hon'ble Court held that the act of recording the respondent-wife's conversation with her mother without legal permission was deemed an infringement of her right to privacy, rendering it illegal. Recording of the telephonic conversation without consent and knowledge is illegal, and therefore, it is not admissible as evidence.
3.8. Hence, the Hon'ble Court dismissed the present petition as being devoid of merits and upheld the Trial Court's judgment.
4. Conclusion
4.1. The Himachal Pradesh High Court's verdict marks a significant milestone in strengthening privacy rights in India, particularly concerning electronic communications and surveillance. By establishing that private conversations cannot be recorded or used without consent, the ruling creates a robust framework for protecting personal communication in an era of widespread digital surveillance.
4.2. The judgment has significant implications for law enforcement and legal proceedings. It mandates that phone recordings used as evidence must be obtained legally, with proper authorization under the Indian Telegraph Act. This requirement balances the necessity of electronic evidence in investigations with constitutional privacy safeguards. Law enforcement agencies must now strictly adhere to established protocols, obtaining necessary governmental approvals, particularly during public emergencies or matters of national security.
4.3. This ruling reflects the judiciary's commitment to protecting privacy as a fundamental right in the digital age. It signals a progressive approach to regulating electronic surveillance while ensuring that evidence obtained through privacy violations cannot compromise individual rights in legal proceedings. The verdict may also catalyze a comprehensive review of India's surveillance laws to better align them with evolving privacy concerns.
A copy of the judgment is annexed hereto at page 3 to 6.
Originally published 14th Jan 2025
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