The Law on Phone Tapping in India
In the recent time, there has been a tons of advancement within the field of technology. Since, Every coin has two sides. Similarly, within the field of technology, there are many advantages and negative sides too. So, thanks to the advancement in technology, that the planet has been dwindled a lot. We will get connected to an outsized number of individuals sitting are far away with just sending them a mail texting or calling them. With all this, the issue of privacy also comes in. There have been a rise in number of cases where the government has started taking phone calls, texts, emails of the people in the name of national security. So, the question arises is that is this not a violation of right to privacy of a person?
with the rising of those events it is very crucial to set up rules and regulations and a legal framework of the issue.
The legislature should make laws which state to what extent phone tapping is allowed.
Article 21 of the constitution states that no person shall be deprived of his life and personal liberty except according to the procedure established by law. Additionally, right to privacy is enshrined in art 17(7) of the international covenant on civil and political right (ICCPR) to which India is a member.
The term personal liberty in article 21 of Indian constitution also includes right to privacy within its ambit. Though, it is not expressly mentioned but is implied by the constitution of India. The judiciary has also recognised this in KS puttaswamy and another versus Union of India. The supreme court declared right to privacy as a fundamental right. Right to privacy now forms the part of basic structure it can’t be taken away or infringed without the procedure established by law which needs to be fair, just, and reasonable. Privacy attaches to the person as an essential facet of the dignity of human being.
Coming to the issue of phone tapping
For obvious national security reasons, it is important that phone tapping be done to some extent but only in authorised way. If used in unauthorised manner it may lead to a breach of right to privacy and may lead to prosecution.
Phone Tapping in India
Both state and Central government has the right to tap phones of people under section 5 (2) of the Indian telegraphic act 1885. There are times when the authority or agency record the conversation of a person who is under suspicion. such authorities should seek permission from the home ministry before taking the calls. In the application to ministry, they need to mention the reasons for tapping the phone calls. In the case of state, permission need to be taken from the state home secretary. The aim of the state would include protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge and preventing the dissipation of the social welfare benefits. A telephonic conversation of a politician cannot be tapped officially.
1)Intersection or Unauthorised tapping is a violation of right to privacy and the aggrieved party may file a complaint with the National Human rights commission.
2)The aggrieved party may also file an FIR against unauthorised tapping.
3) The aggrieved party may also move to Court against the person doing any unauthorised act under section 26(b) of the Indian telegraphic act 1885 .
R M malkani vs state of Maharashtra 1973 AIR 157
The hon’ble supreme Court held that the telephonic conversation of an innocent citizen are going to be protected by courts against wrongful or high handed interference by tapping the conversation.
In case of of persons Union of civil liberties vs Union of India
The Supreme Court laid down certain broad guidelines which the government is required to stick to, while intercepting any message as per section 5(2) of the Indian telegraphic act, 1885.
After the PUCL case, the union government bought some modifications within the Indian telegraphic rules, 1951 and inserted rule 491-A to manage the sound of phones.
In the case of Rayala M. Bhuvaneswari vs Nagaphanender Rayala, The Andhra Pradesh high court held that the act of phone tapping of the conversation of wife by her husband with others was illegal as there was infringment of the right of privacy of the wife. There was no consent of the parties to it.
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,held that, “Sub-Section (1) or Sub-Section (2) of Section 5 of the Telegraph Act, 1885, talks about the occurrence of any pubic emergency or the existence of a public safety interest is the sine qua non.”
The advancement in technology has brought the planet closer cannot be agreed more. as long as criminals in terrorist use technology in furtherance of their motives the government may put some counter-measures which may intentionally or unintentionally invade our private lives. This means even if the calls are recorded through just fair and reasonable manner established by law, cannot be utilised in public hearing because the individuals right to privacy in this regard is considered as absolute, although a fair, reasonable and just procedure would allow for such breach. Tapping or intercepting of calls, messages or emails is taken into account as necessary evil. If the phone tapping is not scrapped entirely, then there should be an extended to which it can be practiced. Private lives of individuals are going to be in danger if it is not regulated.
BALLB (Hons), Faculty of Law, A.M.U