LAWS ON PHONE TAPPING IN INDIA: IS PRIVACY AT STAKE?

Anisha Bhandari and Lavish Sharma are both law students.

INTRODUCTION

In modern society, the right to privacy is a multifaceted concept. It has been addressed in the eyes of the law. Article 21 safeguards the right to privacy and fosters the nobleness of the individual. However, it is not perfect and does not always stop entirely the spread of personal information, such as education, family, medical records, habits, communication (be it telephonic or via mail), etc. Further, technology has made it easier to infringe someone’s right to privacy by accessing records and communications. There is an inherent conflict between the concept of data protection and the right to privacy, and it’s an important one. 

RIGHT TO PRIVACY

The right to privacy has always differed from case to case. Tom Gaiety defined the right to privacy as involving the body’s invincibility, dignity, and the intimacy of individual congruence, including marital privacy. However, in modern society, privacy differs based on individuals, groups, culture, and community. India’s Constitution grants individuals a right to freedom of speech and expression, which insinuated that an individual could express his will on any subject matter. It states that an individual governed by the Constitution holds the capacity to express his/her opinion as per the procedure established by law. 

In R. Rajagopal v. State of T.N., the court stated that the right to privacy involves the ‘right to be left alone’ provided it shields the privacy of marriage, family, motherhood, breeding, and education with others. The right to publish anything on a particular matter without the concerned person’s consent also stands contravening to that right. 

In PUCL v. Union of India, the apex court held that the right to acquire a telephonic conversation between the individual at one’s office or home without any intervention could be regarded as a right to privacy. The court also established some procedures, including legal interruption and a review committee to examine such interruption. 

However, such procedures’ vigilance has been thrown out, which is evident by the tapping incidents in recent times. The interception of telephone by an individual without government authority is an act in contravention to the right to privacy. 

PHONE TAPPING IN INDIA

With the modernisation of technology, the right to privacy has often been hindered. Article 17 of ICCPR states that no individual should suffer an illegal attack on his privacy. Section 5(2) and 26(1) of the Indian Telegraph Act grants the authority to central and state government that interception of postal and telegraphic transmission in a public emergency to maintain public order stands valid. 

In R.M. Malkani v. State of Maharashtra, the apex court held that police could not interfere with a citizen’s rights via illegal or uneven means. Phone tapping is considered in conflict with the right to privacy. In addition, the government does not hold the authority to impose prior obstruction on the announcement of defamatory matter against the officials. It contrives Article 21 and 19(1)(a) of the Indian Constitution. However, communication between the witness and accused is recorded with prior permission; then, it stands admissible as evidence. 

In State of Maharashtra v. Bharat Shanti Lai Shah, the apex court held that telephonic conversation interception regards an obstruction to individual privacy. This can be trimmed when interception happened with the procedural guidelines established by the law. The court should look into the matter with a fair, just, and reasonable rationale without granting them unlimited power to control an individual’s privacy. 

In Justice Puttaswamy v. Union of India, the apex court held that privacy is not an absolute right. It is a fundamental right which comprises of informational and physical privacy. It also stated that privacy is regarded as a right governed by the procedure established by law. By following a free and fair procedure without arbitrariness, anybody can determine the legality of such restrain. However, recording such calls can be produced before the court as the right is not absolute. 

Protection of transmission is specified under the Indian Telegraph Rules 1951. Rule 419-A includes procedural aspects to safeguard telephonic conversations. The Telecom Regulatory Authority has also highlighted the significance of privacy of discussions on different instances. The telecom services’ primary objective is to maintain legitimacy in their functioning while allowing each individual’s privacy. Among other aspects, the goal requires the parties rendering services to ensure privacy gets diligently guarded. 

THE PROBLEM

India’s problem is the legislative void concerning safeguarding or preservation of an individual from unlawful and capricious phone tapping. In Destruction of Public & Private Properties v. State of A.P., the apex court stated that media, while reporting, should be unbiased and rationale ensuring responsibility towards the nation concerning privacy. Making recordings available in the public domain has become a common act to promote a political move, which often misguides the individuals and hampers privacy. 

The court in the PUCL case observed telephonic conversation as part and parcel of life. It explained ‘interception’ under Section 5(2) of the Indian Telegraph Act, 1855, as communication between the specific person and address mentioned in the interception order. This notion is mentioned under Rule 419-A of the Indian Telegraph Act and IT Act. However, no guideline defines the safeguard concerning obstruction by the press. 

With this void, in modern times, parliament acts should introduce strong protection than the present law. For example, they should include time frame on data retentivity, the responsibility of illegal access, and restriction on making public the intercepted communications. These standards would also aid the existing law, making it clear when the order of interception may be issued and what it must constitute. 

ANALYSIS AND CONCLUSION

The admissibility of tape-recorded conversation differs from case to case because of the accuracy it beholds, terminating the possibility to delete the record. Under Section 7 and 8 of the Evidence Act, a coeval tape record is admissible when it adds value to relevant facts and corresponds to the photograph of the alleged incident. The issue of tape recording getting altered is kept in mind by the court while considering its admissibility. 

The right to privacy is acknowledged in the Constitution, but its development is given into the judiciary’s hands. In this digitised world, it is quite challenging to control the escape of information in the public domain. It constitutes a menace to personal and sensitive information. Proper scrutiny in today’s time is far more prevalent and able to invade an individual’s privacy. PUCL guidelines time and again did not affect the functioning of the government. The categorisation of the surveillance initiatives concerning fundamental rights needs review if it is to be saved from grave consequences. 

Today, while anyone can watch us or even track us via electronic mechanisms, a check and balance should exist on the present laws. A robust structure is required to provide all the Central and State government bodies to manage physical and virtual scrutiny and penal repercussion for any breach. Thus, Courts have elaborated on the concept of the right to privacy; technological innovations still await acknowledgment of this right.

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