The Law On Phone Tapping In India

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,[1] 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)[2] (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...

The Law On Phone Tapping In India

Afreen Alam

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