INTRODUCTION
Ever wondered how dangerous can your personal calls over the phone can be? Sit still and think for a moment about how miserable life would be if there was a constant fear of our conversations being heard by someone else. Deewar ke bhi kaan hote hain aur phone ke taar ke bhi! (Stop over-reacting! I know most of you are mobile phone users!) What if they hear you being all mushy-mushy with your partners, or wives shouting at their husbands for getting late yet again, or you plotting a plan to harm someone! But don’t worry, telephone tapping is not a child’s play neither can it be done just as and when we feel like. For almost everything there is a system and there certainly is a law! Through this article we would deliberate upon the law pertaining to telephone tapping and also discuss its impact on the freedom of speech and expression as also on the right to privacy (…oh yes! We do have a right to privacy although our neighbourhood aunties would vehemently deny that!)
LAW
Section 5(2) of the Indian Telegraph Act, 1885:
“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 sub-section.”
Indian Telegraph Rules
Rule 419 and 419A sets out the procedure of interception and monitoring of telephone messages. There is a provision for a review committee to supervise the order of interception. Phone tapping is permitted based on Court order only and such permission is granted only if it is required to prevent a major offence involving national security or to gather intelligence on anti-national/terrorist activities. Though economic offences/tax evasion were initially covered under the reasons for interception of phones, the same was withdrawn in 1999 by the Government based on a Supreme Court order citing protection to privacy of the individual.
As per Rule 428 of the Indian Telegraph Rules, no person without the sanction of the telegraph authority, shall use any telephone or cause or suffer it to be used, for purposes other than the establishment of local or trunk calls.
SO, WHAT DO WE UNDERSTAND OUT OF THIS?
A focused reading of the above would aid us in understanding that the Central and the State Governments have a right to tap phones under Section 5 of The Indian Telegraph Act, 1885. There are times when an investigating authority/agency needs to record the phone conversations of the person who is under suspicion. The authority/agency per se does not have privilege of tapping calls of anyone they fancy. It is supposed to seek permission from the Home Ministry before going ahead with such an act. Specific reasons have to be mentioned in the application, also it must be explained that how tapping will help in further investigation of the case. The ministry considers the request and grants permission if the reason specified seems fit, otherwise the request is denied.
If the agency/authority is granted permission to tap the calls then it contacts the service provider of the telephone/mobile being used by the suspect. Every service provider possesses technology required for phone tapping. The service provider moves ahead with the specified task and provides data to the investigating agency/authority.
Tapping of phone can be permitted only on any one of the following grounds:
(i) There should be a Public Emergency, or
(ii) In the interest of Public Safety
Unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers under the said Section.
What is a Public Emergency?
Public emergency would mean the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action.
And, what is Public Safety?
(…have the authorities in India even bothered to find out its meaning! No offences to our soldiers…our bravehearts deserve all the respect!)
Public safety refers to the state or condition of freedom from danger or risk for the people at large.
When either of these two conditions is not in existence, the Central Government or a State Government or the authorized officer cannot resort to telephone tapping even though there is satisfaction that it is necessary or expedient so to do in the interests of sovereignty and integrity of India etc. In other words, even if the Central Government is satisfied that it is necessary or expedient so to do in the interest of the sovereignty and integrity of India or the security of the State or friendly relations with sovereign States or public order or for preventing incitement to the commission of an offence, it cannot intercept the messages or resort to telephone tapping unless a public emergency has occurred or the interest of public safety or the existence of the interest of public safety requires. Neither the ‘occurrence of public emergency’ nor the ‘interest of public safety’ are secretive conditions or situations. Either of the situations would be apparent to a reasonable person.
FREEDOM OF SPEECH AND EXPRESSION
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 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 infract Article 19(1)(a) of the Constitution.
Article 19 (2) provides that “Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions (‘reasonable’…this term hasn’t left haunting us right since day one of the law school…the question used to be ‘who is a reasonable person’…God saved us then!) on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”
RIGHT TO PRIVACY
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. The word ‘life’ and the expression ‘personal liberty’ in Article 21 were elaborately considered by the Supreme Court in Kharak Singh’s case. The majority read “right to privacy” as part of the right to life under Article 21 of the Constitution.
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 (first they came with ‘reasonable restrictions’ and now ‘procedure established by law’…well played!).
The interception of conversation though constitutes an invasion of an individual’s right to privacy but the said right can be curtailed in accordance to procedure validly established by law. Thus what the Court is required to see is that the procedure itself must be fair, just and reasonable and not arbitrary, fanciful or oppressive.
CAN RECORDED TELEPHONIC CONVERSATION BE USED AS EVIDENCE?
Now how sad would it be if one takes so much effort in getting the telephonic conversation recorded and the Courts just throw it at your face! This does not happen much to your relief…err grief!
The phenomenon of tendering tape recorded conversation before law courts as evidence has almost become a common practice now. In such cases the court has to face various questions regarding admissibility, nature and evidentiary value of such a tape recorded conversation.
Section 3 of the Indian Evidence Act provides the definition of Evidence as follows:
“Evidence means and includes- (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; (2) all documents including electronic records, produced for the inspection of the Court; such documents are called documentary evidence.”
Recorded telephonic conversation would come under the category of ‘documentary evidence’ because electronic records are covered under the ambit of documentary evidence.
RELEVANT CASES