Communication surveillance has been widely accepted as a necessary evil that every civilized society should allow for the security of the state as well for prevention and investigation of crimes. However, state sponsored surveillance should be in balance with individual rights and personal liberties of the citizens. While many developed nations have put safeguards in place to ensure that surveillance activities aren't arbitrary, invasive, and don't infringe upon the people's privacy, India is yet to catch up.
Phone tapping, also known as wire-tapping or line bugging, is the monitoring of the phone or Internet-based conversations by a third party, often by covert means. Phone tapping is a critical invasion of an individual's privacy and is an assortment of technological eavesdropping as exchanges on the telephone are often of a private and classified character. Eavesdropping originated in the US after the invention of the tape recorder. During the prohibition era, a bootlegger by the name of Roy Olmstead was convicted on the basis of evidence gathered by tapping a phone in his house. He challenged his conviction arguing that the phone-tapping violated his fundamental rights. However, the court refused to entertain his argument. Much later, In the case "Katz v. United States", the Supreme Court of the United States redefined what constitutes "searches" and "seizures" with regard to the protections of the Fourth Amendment to the U.S. Constitution, and ruled that wiretapping requires a warrant.
Article 21 of the Indian Constitution states, "Protection of life and personal liberty. No person shall be deprived of his life or personal liberty except according to procedure established by law." Privacy is also enshrined in the International Covenant on Civil and Political Rights (ICCPR) to which India is a party. Article 17 of the ICCPR states, "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation." The expression "personal liberty" in Article 21 of the Indian Constitution further includes within its ambit the right to privacy. In India, phone tapping is regulated under the Indian Telegraph Act 1885. The Act itself is a bygone piece of legislation and leaves much to be desired in terms of safeguarding privacy of citizens.
Section 5 (2) of the Indian Telegraph Act 1885 states "On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorized in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order: Provided that press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this subsection."
In R M Malkani vs. State of Maharashtra, the Supreme Court opined that a witness is permitted to record a conversation with the accused and such recording would be admissible as evidence. It further opined that such recordings, as long as they are collected in the process of investigation, and the accused does not speak directly to the investigating officer, would not be within the vice of Section 162 of the Criminal Procedure Code.
The Supreme Court in the landmark case of People's Union of Civil Liberties (PUCL) vs Union of India (UOI) (commonly known as the wiretap case), observed that "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 a man's private life. Right to privacy would certainly include telephone-conversation in the privacy of one's 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."
It further observed that, "Right to freedom of speech and expression is guaranteed under Article 19(1)(a) of the Constitution. This freedom means the right to express one's convictions and opinions freely by word of mouth, writing, printing, picture, or in any other manner. When a person is talking on the telephone, he is exercising his right to freedom of speech and expression. Telephone-tapping unless it comes within the grounds of restrictions under Article 19(2) would infarct Article 19(1)(a) of the Constitution."
So the Apex court in this case, clearly stated that the right to hold a telephonic conversation in private at home or at an office will come under the provisions of right to privacy and a telephone conversation is an important part of a person's private life. The court also held that telephonic communication in private without interference would come under the purview of right to privacy as mandated in the Constitution. Therefore, unlawful means of phone tapping are invasions in privacy and are vicious and undemocratic in nature.
The Supreme Court, in this decision, then went on to lay down various guidelines regarding phone tapping which are as follows:
- If a telephone has to be tapped, then the home secretary of the Union government or the respective state government can issue an order to this effect.
- Strong reasons have to be specified in order to issue such a directive.
- Such an order shall be in force only for two months unless there is another order, which will give the home secretary the right to extend it by another six months only.
The Court, however, does not give the home secretary the absolute power and states that such an order shall be subjected to review by the Cabinet, law and telecommunication secretary who would have to review the same in 2 months' time of the date the order has been passed. Additionally, the court held that records relating to phone tapping should be used and destroyed within two months.
After the PUCL case, the Union Government brought about an amendment in accordance with the judgement, in the Indian Telegraph Rules, 1951 and inserted the Rule 491-A to regulate the tapping of phones. But this amendment also did not improve the situation.
In the case of Rayala M. Bhuvaneswari vs Nagaphanender Rayala, The High Court of Andhra Pradesh held that the act of phone tapping by the husband of the conversation of his wife with others was illegal as it infringed the right of privacy of the wife. The consent of the parties to the conversation was not there. The court observed, "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 the 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."
In the case of K.L.D Nagasree vs. Government of India, while referring to the observation of the Court in P.U.C.L. case, it was held that, "A bare reading of the above provision shows that for the purpose of making an order for interception of messages in exercise of powers under Sub-Section (1) or Sub-Section (2) of Section 5 of the Telegraph Act, 1885, the occurrence of any pubic emergency or the existence of a public safety interest is the sine qua non."
In Justice Puttaswamy v Union of India, The Supreme Court of India declared Privacy a fundamental right, thereby setting up the foundation for strengthening the case for individual privacy protections. The right to privacy largely encompasses physical privacy, informational privacy and decisional autonomy. However, the court further said that privacy wouldn't be an absolute right and could therefore be limited by a procedure established by law. The interplay of technological progressions and the right to privacy in the digital era needs to be closely inspected. The test to determine the validity of any such constraint is that it is reasonably based on the fair procedure and free from arbitrariness or picky targeting or profiling. The court observed, "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."
Thus it means, even if calls are recorded/taped thorough just, fair and reasonable procedure established by law (that is equivalent to the due procedure established by law), it cannot be used in a 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. Intercepting the phone of an individual without any intimation infringes right to privacy of an individual. According to the Major Law Lexicon, 4th Edition, the term 'interception' means '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.'
But it is important to remember that the power to intercept a phone in special circumstances is conferred to the government under section 5(2) of Telegraph Act. This provision gives power to the government to intercept a phone in the interest of justice or in a case of an emergency. This power however is not absolute. Nobody can intercept a telephone of a person without taking permission and following proper protocols. The interception of someone's phone can be only to a certain extent and by showing reasonable grounds in doing so.
The biggest problem in India has been the weaponization of phone tapping. While the law is clear on the evidentiary value and admissibility of phone tapped recordings in court, it offers no safeguards or protections to people from illegal and arbitrary phone tapping. In what has become a common trend in India, journalists, activists and politicians often find their phone conversations recorded and put out in the public domain. This usually is a politically motivated attempt by state actors to either spy on or discredit people. As long as the law fails to protect the citizenry from such snooping, privacy shall be a far-fetched dream. It is now for the Government to step in and put in place necessary safeguards. And if it fails, the Supreme Court should rise to the occasion.
[Afreen Alam is a law student, researcher and writer from Delhi. She is currently pursuing her B.A. LL.B. (Hons) from Jamia Millia Islamia, Delhi. She tweets at @Afreenalam_]
 R M Malkani vs. State of Maharashtra AIR1973SC 157.
 People's Union of Civil Liberties (PUCL) Vs. Union of India (UOI) and Ors. AIR1997SC 568.
 Rayala M. Bhuvaneswari vs Nagaphanender Rayala AIR 2008 AP 98.
 L.D Nagasree vs. Government of India AIR 2007 AP 102.
 Justice Puttaswamy v Union of India (2017) 10 SCC 1.