Legal Scenario of Call Recording in India

Telephone-Tapping is a serious invasion of an individual's privacy. To understand the legal scenario of call recording in India, it is necessary to first read a few of the provisions of the IT Act and Evidence Act.

Section 2 of the Information Technology Act, 2000 narrates the definition as “an electronic record, which includes sound stored, received, or sent in an electronic form”.

Section 85B of the Indian Evidence Act, 1872 deals with the law regarding the alteration of recorded electronic evidence. The authenticity and integrity of this electronic record are measured by a digital signature. This signature must be affixed to sign the record.

Entry 31 of the Union List of India (List -I) places the subject of call recordings under the list item “posts and telegraphs; telephones, wireless, broadcasting and other like forms of communication.”

Further, Section 5 of the Indian Telegraph Act, 1885 gives power to the Government to take possession of licensed telegraphs and to order the interception of messages. This Section provides a right to the Central or the State government to procure telegraphs in the interest of public safety.

The Government can take hold of electronic messages (oral/written) given that there is a situation of public emergency. Section 65B of the Indian Evidence Act, 1875 provides for the conditions of admissibility of electronic evidence, and it also provides that a certificate is necessary for its related admissibility.

Electronic record is defined under Section 2(1)(t) of the Information Technology Act, 2000.

Rule 419A of the Indian Telegraph Rules, 1951 can be summarized in two stages. The first stage is procurement and review of lawful orders.

• This Section states that directions for interception under Section 5 of the Indian Telegraph Act, 1885 can only be issued by the union or state home secretary. Further, in an unavoidable circumstance, a lawful order can be issued by a person of rank not less than a joint secretary. Unless all the ways of getting the information are ruled out, only then a lawful order can be issued.
• The second stage is the interception process. It is carried out by law enforcement agencies in India. In the interception process, the identity of the personnel and the agency is not revealed to the public.

Recording of calls also includes phone tapping. Recording a call helps to confirm the words spoken by an individual. A call recorded for harming a person is unethical, and recording without the consent of the person is a violation of the right to privacy. Section 65B of the Indian Evidence Act of 1872 outlines special provisions relating to electronic records. 

Call recordings vis-a-vis right to privacy

Right to privacy is one of the pillars of the basic structure of the constitution of India. Phone tapping is a serious crime in India unless there is a proper reason and permission by a competent authority behind recording someone’s private conversations. The right to privacy of an individual is a paramount concept u/a 21 of the Constitution and this cannot be ignored in the view of electronic evidence for any purposes unless provided by a particular process. Article 21 in the Constitution of India is the fundamental legal provision governing privacy. It further guarantees personal liberty as an inalienable birth right. However, if an authority is legally authorized, these telephone conversations are not private anymore, thus, can be collected or restored as judicial evidence.

The Supreme Court of India in its verdict in the case of People’s Union of Civil Liberties v. Union of India  (1997) 1 SCC 301 held telephonic conversations are absolutely private subject. The right to privacy in the context of recording calls becomes irrelevant only when there is a matter of public emergency or in the interest of public safety. In the case of PUCL v. UOI, it was held that secretly recording a person’s private conversations is a grave violation of the right to privacy of an individual. In this case the challenge was to the constitutional validity of Section 5(2) of the Indian Telegraph Act, 1885. The provision gave absolute legal authority to state and central government to record telephonic conversations that are purely against the sovereignty and security of the nation. The Court also laid down detailed safeguards to check for arbitrariness in the issuance of telephone tapping orders and they are as follows: 

1. An order for telephone-tapping in terms of Section 5(2) of the Act shall not be issued except by the Home Secretary, Government of India (Central Government) and Home Secretaries of the State Governments. In an urgent case the power may be delegated to an officer of the Home Department of the Government of India and the State Governments not below the rank of Joint Secretary. Copy of the order shall be sent to the Review Committee concerned within one week of the passing of the order.

2. The order shall require the person to whom it is addressed to intercept in the course of their transmission by means a public telecommunication system, such communications as are described in the order. The order may also require the person to whom it is addressed to disclose the intercepted material to such persons and in such manner as are described in the order.

3. The matters to be taken into account in considering whether an order is necessary under Section 5(2) of the Act shall include whether the information which is considered necessary to acquire could reasonably be acquired by other means.

4. The interception required under Section 5(2) of the Act shall be the interception of such communications as are sent to or from one or more addresses, specified in the order, being an address or addresses likely to be used for the transmission of communications to or from, from one particular person specified or described in the order or one particular set of premises specified or described in the order.

5. The order under Section 5(2) of the Act shall, unless renewed, cease to have effect at the end of the period of two months from the date of issue. The authority which issued the order may, at. any time before the end of two month period renew the order if it considers that it is necessary to continue the order in terms of Section 5(2) of the Act. The total period for the operation of the order shall not exceed six months.

6. The authority which issued the order shall maintain the following records:

(a) the intercepted communications,
(b) the extent to which the material is disclosed,
(c) the number of persons and their identity to whom any of the material is disclosed.
(d) the extent to which the material is copied and
(e) the number of copies made of any of the material.

7. The use of the intercepted material shall be limited to the minimum that is necessary in terms of Section 5(2) of the Act.

8. Each copy made of any of the intercepted material shall be destroyed as soon as its retention is no longer necessary in terms of Section 5(2) of the Act.

9. There shall be a Review Committee consisting of Cabinet Secretary, the Law Secretary and the Secretary, Telecommunication at the level 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.

(a) 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. Where there is or has been an order whether there has been any contravention of the provisions of Section 5(2) of the Act.

(b) 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 under scrutiny of the Committee. It shall further direct the destruction of the copies of the intercepted material.

(c) If on investigation, the Committee comes to the conclusion that there has been no contravention of the provisions of Section 5(2) of the Act, it shall record the finding to that effect.

In the case of Vinit Kumar v. Central Board of Investigation and others (2019), the right to privacy was further strengthened and answered the question of permissibility of tape-recorded conversations as judicial evidence. The case also highlights that any interception order of calls should not violate Rule 419A of the Indian Telegraph Rules, 1951.

“Principles of proportionality and legitimacy” to determine the legality of call recording orders issued by the government  was determined by the Supreme Court in the case of of K.S Puttaswamy v. Union of India (2017) 10 SCC 1. It was also held in the judgment that if there was no risk to the public and nation the government cannot issue orders for telephone tapping.

In the light of these judgments of the Supreme Court in various judgments, dealing with call recordings involves a delicate approach. The manner of obtaining telephone recordings is crucial from a legal point of view. The Indian stance on the admissibility of tape recordings is observed with the help of important cases and judgments.

Admissibility of call recordings in courts
Today, electronic evidence is used extensively in court cases, but what’s more important is its admissibility factor of these evidences. Section 65B of the Indian Evidence Act provides for the admissibility of electronic records. A speech documented without the explicit permission of at least one of the speakers is not legally valid. The participants to the same conversation should consent to the recording. The evidentiary value, in any case, is the most important law behind developing the legality of the idea of presenting to the court a ‘digital’ form of evidence.

Important legal authorities which has decided the status, procedure and requirement of call recording in the light of various above stated provisions:-

S. Pratap Singh v. the State of Punjab 1964 SCR (4) 733
This is probably the first case wherein the Supreme Court dealt with the issue of call recording as an evidence to decide a case. In this case, a five judge’s bench of the Supreme Court accepted a telephonic recording of a conversation between two parties after examining the evidentiary value of tape-recorded conversations. Since Section 65B of the Indian Evidence Act was brought in 2000, the question of admissibility was neither decided nor was it under consideration. The evidence submitted was accepted only because it helped to resolve the case.

R.M. Malkani v. the State of Maharashtra 1973 SCR (2) 417
In this case, the Supreme Court of India the question before it was that “the High Court held that the telephone call put by Dr. Motwani to the appellant was tapped by the Police Officers and, therefore, there was violation of section 25 of the Indian Telegraph Act. But the High Court held that the tape recorded conversation was admissible in evidence in spite of the violation of the Telegraph Act” and the Supreme Court stated that the most important legislation within the context of legal tape recordings is the Indian Telegraph Act. This case revolved around the question of using tape-recorded conversations as a basis for criminal prosecution of a person. The evidence under question was illegally obtained from tape recordings and so they were in contravention of Section 25 of the Indian Telegraph Act. Therefore, such evidence was inadmissible. It was further held that the right to privacy in the Indian constitution protects only innocent citizens and does not protect those who are trying to vindicate the police because they are guilty of immoral crimes. The Court held that the tape recordings were admissible as evidence even despite the violation of the Telegraph Act.

Ram Singh v. Colonel Ram Singh SCR Supl. (2) 399
In this Case, the Supreme Court taking reference of foreign judgments, held that “The evidence should     be examined on the analogy of mutilated documents. If the tape recording is not coherent or distinct or clear it should not be relied upon. In the instant case, the tape recording was misleading and could not be relied on because in most places it was unintelligible and of poor quality. Therefore, its potential prejudicial effect outweighs the evidentiary value of the recording.” It then said that, “One of the important infirmities from which the tape recorded statements suffer 18 the question of custody.”

Rayala M. Bhuvaneswari v. Nagaphamender Rayala AIR 2008 AP 98
In this case, the Andhra Pradesh High Court held that, “act of tapping itself by the husband of the conversation of his wife with others was illegal and it infringed the right of privacy of the wife. Therefore, these tapes, even if true, cannot be admissible in evidence. Hence, Ex.P-18 itself is not admissible in evidence and there is no question of forcing the wife to undergo a voice test and then ask the expert to compare the portions denied by her with her admitted voice.” It further held "can a person record or tape a conversation of his or her spouse?" It also shows that a person who is party to the conversation, when the conversation is between spouses, can tape the conversation. But, a person cannot tape the conversation of a spouse while he or she is talking to other people, and more specifically to a paramour.”

Ratan N. Tata v. the Union of India and Others W.P.(C) No. 398/2010
In the famous lobbyist Nira Radia case, the Supreme Court agreed to decide few issues with regarding call recording and unauthorized tapping. Since the tape recordings were authorized to be recorded, they were submitted and accepted as valid evidence by court order. Thus, the most important aspect of this case was whether the authorized recording of telephone conversations was illegal if it defamed any party to the conversation. The following issues were formulated by the court to decide:
(i)    Right to privacy vis-à-vis the Government;
(ii)    Right to privacy vis-à-vis the Press; and
(iii)    Right to know the information.

The Supreme Court is still to decide the issues.

The European General Data Protection Regulation and India
European General Data Protection Regulation is a regulatory framework that helps to protect personal data such as telephonic conversations and works as model law for the entire world. GDPR standards impose strict fines on those who violate its rules. This law covers the collection, storage, retrieval, alteration, storage, and destruction. Its scope is wide and sufficient to take into control every data processing unit within Europe.

India is also taking steps to enact a data protection framework modelled in the lines of the GDPR. In July 2017, the Government of India appointed a Committee of Experts on a Data Protection Framework for India, or Data Protection Committee (DPC), under the chairmanship of Retired Judge of Supreme Court of India B.N. Srikrishna, to study issues related to data protection in India. The committee submitted its report and proposed a comprehensive law on data protection on July 27, 2018, but failed to weigh the economic costs and benefits of implementing a GDPR style law in India.

Conclusion
In recent years, exponential growth in the technological sector has made it both convenient as well as risky to conduct our personal affairs over telecom services. Both the Central and the State authorities have the power to record calls under Section 5(2) of the Indian Telegraph Act, 1885. Electronic evidence is a novel method of submitting evidence to the Court under Section 65B of the Indian Evidence Act. This article has endeavoured to trace the legal position in India vis-a-vis phone taping and its evidentiary value in court. The status as it emerges is that taping of phone call or data invasion is per se not illegal in India provided the statutory safeguards under Indian Telegraphs Act and IT Act, 2000 are complied with. It is worthwhile to mention that the issues framed in Ratan Tata’s case encompass the larger issue involved and it would be worthwhile to see how the Supreme Court answers the same. In the rapidly changing scenario of Technological advancement and invasion of privacy through electronic media being at its highest possible risk, it is incumbent on the Government of the day to legislate on issues regarding data privacy and protection thereof, juxtaposed against matters concerning national security and public emergencies.

Share this News