What is phone tapping?
Telephone tapping or wiretapping is the monitoring of telephone and Internet-based conversations by a third party, often by covert or illegal means. Legal wiretapping by a government agency is called lawful interception.
Lawful interception, which is being done by government agencies for security purposes, is strictly controlled to ensure privacy.
Telephone comes under the telegraph law
Telephone is a form of telegraph under the law and it falls under the purview of the Indian Telegraph Act.
The Indian Telegraph Act, 1885 makes it illegal to spy on phone conversations except if done in unavoidable circumstances by the government,
The Section 5 of the Indian Telegraph Act empowers the government to take possession of licensed telegraphs on account of any public emergency, or in the interest of public safety. The Central government or State government or any person specifically authorized by the Central or State government, can take temporary possession of any telegraph established, maintained or worked by any person licensed under the Indian Telegraph Act. The act authorises the specified authorities to incept a telephone conversation for such purposes.
What is interception?
The term interception is the act of listening in and recording communications, intended for another party for the purpose of obtaining intelligence.
However, the act of recording a telephone either by the sender or the recipient cannot be considered as interception under the law. In order to fall a recorded conversation within the ambit of interception, the content of the conversation is to be made available to a person other than the sender and the recipient.
Telephone conversation is a private affair
Telephone conversation is an important facet of man’s private life. The right to hold a telephone conversation in the privacy of one’s home or office without interference from others forms part of one’s right to privacy. Interception or tapping of telephone therefore would infringe the Article 21 of the Constitution, unless the tapping is one permitted under the law.
Phone tapping by a spouse is unlawful
The act of tapping of phone by a spouse is illegal and it infringes the right of privacy of the spouse. While considering such a case, the Andhra Pradesh High Court held in Smt. Rayala M. Bhuvaneswari v Napaphander Rayala that the Right to Privacy includes right to hold telephonic conversation without any interference.
Recording of telephonic conversation of wife, without her knowledge, is a clear-cut infringement of her privacy, observes the Punjab & Haryana High Court in Neha v Vibhor Garh delivered on 12 November 2021.
The Supreme Court, in a Special Leave Petition No 21195 of 2022, has agreed to look into the issue of secret recording of telephone conversation by the spouse and production of it as part of evidence.
Telegraph act permits legal telephone tapping
The Indian Telegraph Act, 1885 permits interception of telegraphic messages, including telephone call by adhering to the prescribed procedures.
The Section 5(2) and 26(1) of the Indian Telegraph Act grants the authority to central and state government to intercept telephone conversation in a situation of public emergency so as to maintain public order.
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.”
Recorded conversation with accused is evidence
In R M Malkani v State of Maharashtra, the Supreme Court (SC) 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 fall within the vice of Section 162 of the Criminal Procedure Code.
Whatever the accused speaks to the police officer has limited evidentiary value due to the bar in using such statements under the above said provision.
Telephone tapping is invasion into privacy
The SC in People’s Union of Civil Liberties (PUCL) v Union of India (AIR 1997 SC 568) – the wiretap case – said that the right to hold a telephonic conversation in private at home or at an office will come under the provisions of right to privacy and a telephone conversation is an important part of a person’s private life.
The court also held that telephonic communication in private without interference would come under the purview of right to privacy as mandated in the Constitution.
Therefore, unlawful means of phone tapping are invasions in to right to privacy of a person and are illegal.
SC Guidelines on lawful telephone tapping
The Supreme Court, in the wiretap case issued some guidelines regarding phone tapping and they are as follows: –
Whenever there is a strong need for tapping a telephone, the home secretary of the Union government or the respective state government can issue an order to for the purpose.
Such an order shall be in force only for two months unless there is another order, which will give the home secretary the right to extend it by another six months only.
Such an order shall be subjected to review by the Cabinet, law and telecommunication secretary who would have to review it within 2 months’ time from the date of passing the order.
In order to review such an order there shall be a Review Committee consisting of Cabinet Secretary, the Law Secretary and the Secretary, Telecommunication of the Central Government. The Review Committee at the State level shall consist of Chief Secretary, Law Secretary and another member, other than the Home Secretary, appointed by the State Government.
The Committee shall on its own, within two months of the passing of the order by the authority concerned, investigate whether there is or has been a relevant order under Section 5(2) of the Act.
If, on an investigation, the Committee concludes that there has been a contravention of the provisions of Section 5(2) of the Act, it shall set aside the order. It shall further direct the destruction of the copies of the intercepted material within two months.
Illegal interception is a criminal offence
The Section 25 of the Telegraph Act criminalizes the act of intentionally damaging or tampering with telegraphs.
The provision says if any person, intending to prevent or obstruct the transmission or delivery of any message, or to intercept or to acquaint himself with the contents of any message, or to commit mischief, damages, removes, tampers with or touches any battery, machinery, telegraph line, post or other thing whatever, being part of or used in or about any telegraph or in the working thereof, he shall be punished with imprisonment for a term which may extend to three years, or with fine or with both.
This section can be used only for the prosecuting third parties intercepting a call, and not the recording of the conversation by the parties to the conversation.
Recording one’s own conversation is not illegal
The phrase interception or acquainting oneself with the contents of a message does not apply to cover a situation of a person recording their own telephone conversation with another.
A person recording his/her own conversation with someone cannot be said to have intercepted his own conversation, or damaged/tampered a device with a view to acquaint himself with the contents of (his own) message/conversation. So an act of recording one’s own conversation with someone does not appear to be culpable under this section.
Government brought in more stringent regulation
After the PUCL case, the Union Government brought about an amendment in accordance with the judgement, in the Indian Telegraph Rules, 1951 by inserting Rule 419-A for regulating the tapping of phones.
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