Recording Phone Calls, Tapping Phone Lines: A Breach of Privacy

Introduction

“Privacy is a constitutionally protected right which emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution.” This was observed by Justice D.Y. Chandrachud (Now the Chief Justice of India) while delivering the landmark judgment of Justice K.S. Puttaswamy v. UOI.

Taking now the same into consideration Justice Jasmeet Singh of Hon’ble Delhi HC has recently ruled in the matter of Sanjay Jain v. Directorate of Enforcement that tapping phone calls or recording the calls without consent is a breach of privacy under Article 21 of the Indian Constitution. Only with the consent of an individual such an activity can be carried out otherwise, it will amount to a breach of the fundamental right to privacy. In this piece, author will dealt upon the position of law concerning the tapping of phone calls in India.

Interception of Phone calls under The Indian Law

The section 5(2) of the Indian Telegraph Act, of 1885 provides that on the occurrence of any public emergency or in the interest of public safety the orders for the phone tapping can be issued and the phone tapping can be done by the Central or state government or an authorized officer to intercept in the case of the public emergency.

In the case of PUCL v. UOI, the apex court, in this case, laid down certain guidelines that need to be followed for the phone tapping process.

1. The following conditions under which phone tapping can be done under section 5(2) of the Indian Telegraph Act, 1885 were enumerated in this case.
2. In the interest of national security,
3. In the interest of the sovereignty & integrity of India
4. Public order
5. Friendly relations with other states
6. For preventing the commission of an  offence
7. The order of Phone Tapping under section 5(2) of the act shall be issued by Union Home Secretary or State Home Secretary.
8. The validity of such an order will be for 2 months.
9. While issuing an order under section 5(2) of the act they need to take into consideration whether the information is available by other alternative means.
10. There shall be a Review Committee which shall look at whether there is or has been a relevant order under section 5(2) of the act.
11. The usage of the intercepted material shall be to the extent necessary under section 5(2) of the act.

Thus section 5(2) of the Telegraph act which was challenged in this case was deemed to be constitutional with the procedural safeguards that were provided by the court.

Further, the Rule 2f of the Information Technology (Procedure for Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, passed in furtherance section 69 of the IT act provides the power to issue directions relating to the interception, monitoring and Decryption of the Information. The term interception is defined as the acquisition of information through any means including the interception device to make the information available to a person other than the sender, recipient or the intended recipient and includes-

1. Monitoring information by employinga monitoring device
2. Inspect contents of any direct or indirect information, and
3. Diversion of any indirect or direct information from its intended destination to any other destination.

Thus it will not amount to interception if the information of a recorded call remains with the intended receiver or with the sender since interception involves the dissemination of the information.

Tapping, Recording of Phone Calls and Right of Privacy under the Indian Constitution

The Apex Court in K.S. Puttaswamy v. UOI stated that the right to privacy is inherent in every individual as a natural right and it is inalienable and attached to every individual as a precondition for being able to exercise their freedom. The nine-judge bench ruled that the right to privacy is an intrinsic part of the right to life and personal liberty under Article 21 of the Indian Constitution. At the same time,the right to privacy is not absolute and restriction is allowed against it whenever the restriction is provided by the law, corresponds to the legitimate aim of the state and is proportionate and necessary to the objective it sought to achieve.

In RM Malkani v. State of Maharashtra, the apex court stated that “Article 21 contemplates procedure established by the law with regard to deprivation of life or personal liberty and that the telephonic conversation of innocent citizens will be protected by the courts against the wrongful or high-handed interference by tapping the conversation”. Further, in the case of PUCL v. UOI, the apex court acknowledged that “tapping is a serious invasion of the individual’s privacy and that the telephonic conversation which is being done at the office or home was a private matter and would fall under the right to privacy”. The court also stated that conversations on the telephone are of confidential and intimate character and thus tapping of telephones is a serious invasion of privacy.

Now in the post-Puttaswamy era, the Bombay HC got the opportunity to decide upon the law relating to phone tapping and apply the principles of privacy in relation to section 5(2) of the act. In the case of Vinit Kumar v. CBI, a businessman who was alleged to have bribed bank employees his phone calls were intercepted by orders of the CBI and now these orders were challenged under Article 21 of the constitution and the Bombay HC ruled that order of interception under section 5(2) of the Telegraph Act can only be given after meeting the threshold of ‘public emergency’ or ‘public safety’ and any evidence produced in violation of this section will not be admissible. Since in this case the threshold was not met the court accordingly set aside the interception orders.

Conclusion

“The right to be left alone” is how Lewis D. Bradies defined privacy. Now the act of tapping and recording phone calls affects the fundamental right to privacy as well as the right to freedom of speech and expression. Since the right to privacy is not an absolute right thus any procedure for phone tapping or recording phone calls should meet the test of just, fair and reasonable under Article 21. Any reliance on these means should be taken only when there exists a very strong reason. Whenever phone tapping is done one needs to respect the rights of other people and balance them with the interests of the state.

This Article is authored by Manik, a student of National Law University Jodhpur.