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The Apex Court was of the view that intercepting of telephones or wiretaps as a whole is a staid incursion of privacy of an individual, and it was also acknowledged that right to privacy falls under Article 21 of the Indian Constitution. But Section 5 2 was held to be Constitutional by the Court. When a person makes a telephonic call and communicates with another person, that person also exercises his right to freedom of speech and expression, which is provided under Article 19 1 a of the Indian Constitution.

Hence, interception of the call would infringe this provision, until and unless it falls under reasonable restriction provided under Article 19 2. But the Court did mandate the setting up of high-level committee to review the tapping of phones and ascertain whether the taping was legal or not.

But this amendment also did not bring any major change in the circumstances. Substantive safeguards In , the Apex Court, in reply to a petition filed by Justice Sachar in the PUCL case, stated that Right to Privacy guaranteed under Article 21 is subject to some reasonable restrictions which might be made obligatory by the State.

Reasonable restrictions can be imposed by the state in theinterests of national sovereignty and integrity, state security, friendly relations with foreign states, public order or for preventing incitement to the commission of an offence. Supreme Court while perpetuating the constitutionality of Section 5 2 in P. Thereafter the competent authority under Section 5 2 of the Act is empowered to pass an order of interception after recording its satisfaction that it is necessary or expedient so to do in the interest of i sovereignty and integrity of India, ii the security of the State, iii friendly relations with foreign States, iv public order or v for preventing incitement to the commission of an offence.

D Nagasree v. Government of India , while referring the observation of the Court in P. An individual can also be prosecuted for authorized interception of telephone but sharing of the data of the same in an explicit manner. Malkani v. State of Maharashtra there was an issue that, whether criminal prosecution could be initiated against a person on the basis of certain incriminating portions of a telephone conversation that he had with another individual.

In this case, the Appellant was a public official of Mumbai and he was trying to acquire illegal indulgence of Rs. The doctor was not concerned in paying the bribe and instead approached the Anti-Corruption Bureau of the Police. The doctor then, on the instructions of the police officials, continued to have a telephonic conversation with the Appellant where they had a discussion regarding the amount of money which was to be paid, and also the location of delivery of money, etc. This conversation was traced and the Malkani had no intimation regarding the same. After tracing the call, the charges were filed against Malkani on account of the statements made by him during the phone call.

FAQs on Telephone Tapping

The Supreme Court was of the view, that having another person listening in on a conversation was a technical process and that there was no element of compulsion or coercion drawn in which would have otherwise violated the Act. However, then conceivably realizing that it was wrong, the court quickly added that -it should be used sparingly, under proper direction and with circumspection. The intercepted evidence was contrasted with a photograph of a pertinent event and on the basis of this assumption, it was determined that Sections 7 and 8 of the Evidence Act [] would not bar the admission of inappropriately acquired evidence.

Furthermore, what the Apex Court did was to hold that illegally obtained evidence would be admitted in Court since the eavesdropper neither subjects the person to duress nor interferes with his privacy. While passing the order, Ray, J. United States of America , which had by then been overruled by the Berger and Katz cases. In the Olmstead case the doctrine adopted, was that observation without encroachment and without the convulsion of any material fell outside the constitutional realm.

Hence, Ray, J. Following the aphorism laid down in the Malkani case, many judgments have been passed by the Courts accepting unlawfully acquired evidence for the intention of conviction. In the case of S. Pratap Singh v. Further, in Yusufalli Esmail Nagree v. State of Maharashtra , a conversation was recorded via a tape recorder placed in a room and the same was admitted as evidence.

In this case, the Appellant had made an offer to bribe a municipal clerk Munir Ahmed Sheikh. The clerk Sheikh intimated the police who then laid a trap at his house and obscured a voice recording equipment in the room where the bribe money was to be paid.

Phone tapping: Position in India

The Court observed that if a photograph is taken without the knowledge of the person being photographed, following the same standard to the case of an interception of a conversation that is unnoticed by the talkers, will also be held significant and admissible. The Supreme Court at the time of delivering the judgment was highly influenced by an English Precedent, R v.

Maqsud Ali. In that case, two persons suspected of murder went voluntarily with the Police officers and entered into a room which was unknown to them. There was a microphone attached with a tape recorder in another room. Afterward, when the suspected persons were left alone, the accused persons had a conversation during which various incriminating annotations were made. The Court decided that the tape-recording of the incriminating evidence had to be admitted as evidence as it was admissible evidence which proved the suspected persons guilty.

Sri Rama Reddy v. The SOP document is 45 pages long and divided into 11 sections. The sections include the operational structure, types of request, validation of interception request, legal intercept under number portability, reconciliation and pruning processes, consequences, list of 10 law enforcement agencies authorized to intercept and a set of 10 annexures relating to interception. Right to privacy has been briefly discussed in the recent Supreme Court judgment i. These rights are recognized by the Constitution as inhering in each individual as an intrinsic and inseparable part of the human element which dwells within.

Privacy is a constitutionally protected right which appears predominantly from the guarantee of life and personal liberty in Article 21 of the Constitution. Elements of privacy also arise in varying contexts from the other facets of freedom and dignity recognized and guaranteed by the fundamental rights contained in Part III. Privacy comprises at its core the preservation of personal intimacies, the sanctity of marriage and family life, the home, procreation and sexual orientation. Privacy also connotes a right to be left alone.

Privacy safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his or her life. Personal choices prevailing a way of life are essential to privacy. Privacy safeguards heterogeneity and recognizes the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not vanished or surrendered purely because the individual is in a public place.

Privacy attaches to the person since it is an essential facet of the dignity of the human being. As amended in the recent Supreme Court judgment, right to privacy is an integral part of right to life, which is enshrined under Article 21 of the Indian Constitution. Intercepting a telephone of an individual without any intimation infringes right to privacy of an individual.

But the same can be done by the government if any special situation arises. The power is conferred to the government under section 5 2 of Telegraph Act. The provision laid down under section 5 2 gives power to government to intercept a telephone in interest of public or in a case of emergency. The power conferred under section 5 2 to the government is not absolute as it is a matter of privacy of an individual. Nobody can intercept a telephone of a person without taking permission from the government.

Indian Perspective On Phone Tapping

Government can exercise its right but outside a particular ambit because an individual has a right to privacy and he also has a right to safeguard his right to privacy. Conclusion Right to privacy is a part of personal liberty which is provided under Article 21 of the Indian Constitution. A person has also the right to safeguard his privacy. There are some cases when the government has to act contrary to the fundamental rights of a person.

One of them is interception of telephone. Interception of telephone is not in violation of right to privacy only if it done for the interest of public or in a case of emergency, as stated under section 5 2 of the Telegraph Act. In the case of S. Pratap Singh v. Further, in Yusufalli Esmail Nagree v. State of Maharashtra [xiv] , a conversation that was recorded by means of a tape recorder placed in a room was admitted in evidence.

The clerk Sheikh informed the police who then laid a trap at his residence by concealing a voice recording apparatus in the room where the bribe amount was to be paid. The Court noted that if a photograph taken without the knowledge of the person being photographed, applying the same principle to the case of a tape-record of a conversation that is unnoticed by the talkers, will also become relevant and admissible. The Apex Court in delivering the judgment was heavily influenced by the decision of an English Court in the case of R v.

Maqsud Ali [xv]. In that case two persons suspected of murder went voluntarily with the Police Officers into a room where unknown to them, there was a microphone connected with a tape recorder in another room. Thereafter, when they were left alone, the accused persons had a conversation during which some incriminating remarks were made.

The Court decided that the tape-recording of the incriminating evidence had to be admitted as evidence. Sri Rama Reddy v. The problem is that while this may represent the easy way out for the police, these short cuts imperil the liberties of the citizens. Further, no respect has been attached to the means by which the end could be achieved.. Sadly the safeguards suggested were wholly inadequate and could not compensate for the fact that mechanical eavesdropping had been freed from all constitutional restraint.

This development is especially important when one takes into account the amendment of that granted the Government the license to tap any phone conversation it wished without being made accountable or answerable to anybody. Safeguards in the form of guidelines were only framed two decades later when a voluntary organization took the initiative and approached the Supreme Court for assistance.

In Rayala M.

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Bhuvaneswari v. Nagaphamender Rayala [xviii] , the Petitioner filed a divorce petition in the Court against his wife and to substantiate his case sought to produce a hard disc relating to the conversation of his wife recorded in U. The wife denied some portions of the conversations.

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The Court observed that the purity of the relation between husband and wife is the basis of marriage, and the husband was recording her conversation on telephone with her friends and parents in India without her knowledge. Hence, this is clear infringement of right to privacy of the wife, where a husband is of such a nature and has no faith in her wife, even regarding her conversation with her parents.

In such circumstances, the institution of marriage itself becomes redundant. Also, there should be an element of trust between a marital relationship and in any case the right of privacy of the wife is infringed by her husband by recording her conversation on telephone to others. Such a husband who has resorted to illegal means which are not only unconstitutional but also immoral, cannot later on, try to rely on the evidence gathered by him by such means.

Law On Phone-tapping In India- Academike

The Court is not concerned with how it was obtained. The law concerning admissibility of stolen evidence in England is a lot more flexible, as opposed to India. A notable factor of significance in determining whether tapping may be appropriate is the seriousness of the offence being investigated. When a serious crime is committed coupled with significant breach of the code, evidence obtained is admissible.

In R v Khan [xx] , evidence was deemed admissible with the Court acknowledging that the seriousness of the crime being investigated was of importance and was seen to outweigh the improper conduct of the police. Further, in that case trespass to property, breach of privacy and also damage to such; along with the usage of listening devices in private premises were found in the conduct of the police. Hence, the value of evidence that the police anticipate discovering through improper conduct may be of significance in justifying a decision to so act. Additionally, there is no consensus as to what should be admissible in evidence and what should not though as recent cases reveal there seems to be a growing tendency to move away from the exclusionary principle, in favor of admitting tape-recorded evidence in a Court of law.

In this case the European Court of Human Rights noted that in the absence of a proper legislative framework in the UK the practice of telephonic interception was insufficiently grounded in law to allow it to be justified under Article 8 2 of the European Convention on Human Rights. Section 2 2 of the RIP Act dealt with the intercepting of a communication in the course of its transmission by a telecommunication system. Additionally, there is control exerted by the Home Secretary over the granting of telephone intercept warrants to the Director General of Intelligence and Security.

Such authorization is provided under an Interception Warrant which must name or describe either one person as the Interception Subject or a single set of premises where the interception is to take place. It must be noted that RIP Act establishes a Tribunal which can investigate on whether there was a warrant and whether it was properly issued.

Thus, where it is found that an Interception Warrant has been improperly issued, the Tribunal has power to order compensation and the destruction of the recorded material. Additionally, if the interception takes place without a warrant, then the Director of Public Prosecution must consent to criminal prosecution. Hence, in the UK it is now an offence for any person intentionally and without lawful authority to intercept any communication in the course of its transmission through a public telecommunication system and — except in specified circumstances — through a private telecommunication system.

The United States of America has tended to favor the exclusionary rule of evidence but more attention has been given to the right to privacy enshrined in the American Constitution. This principle is based on the theory that it is a central function of the Courts to encourage lawful action by the State. Also, every State in the USA has its own laws that lay down procedures relating to telephone tapping. Additionally, at the Federal level the Crime Control and Safe Streets Act of , has prohibited the willful interception of telephone communication by means of any mechanical, electronic, or other device without an applicable exemption.

Furthermore, Federal statutes do not enjoy superiority over State laws unless the call or the tap crosses state lines. Thus, while the U. In the Olmstead case, the majority judgment was in favor of adjudicating the issue of telephone tapping outside of the domain of right to privacy and the Fourth Amendment. This was cited in when the Supreme Court in the Katz case declared that the protection of the Fourth Amendment would be extended to all recording of oral statements overheard, without any technical trespass under property law, i.

In overruling the Olmstead judgment, the Court held that recording by police of conversation in public telephone booth was in violation of the Fourth Amendment because the speaker had a reasonable expectation of privacy in the booth. However, in the following decades, there were as many as 32 judgments that expressed consenting and dissenting opinions with Katz judgment.

Although, English law appears to have accepted even taped conversations in foreign languages as evidence- in the R v. Maqsud [xxii] case [where the conversation recorded was in the Punjabi dialect]. But, the Courts in the US have appeared more reluctant to do the same. This Act, like POTA in India, liberalized the telephone tapping procedures and aimed at making wiretapping an easier and less procedure-ridden operation. Under Section , the FBI was given the power to secretly conduct a physical search or wiretap , primarily to obtain evidence of crime without proving probable cause of crime.

This provision goes against the spirit of the Fourth Amendment to the Constitution that requires the Government to prove to a judicial officer that it has probable cause of crime before it conducts an invasive search [like telephone tapping], for evidence of any crime. Recently, the Obama administration has come under increased attack when it revealed that it had been keeping tabs on the phone records of millions of Americans for the past few years despite the justification that it was done in light of national security.

Under S. Investigative measures such as wiretapping have been dealt with strictly by the Canadian Supreme Court. The Court laid down a few requirements:. Henceforth, even in times of investigative necessity, the applicant needs to establish in the affidavit that there is no other investigative tool available besides wiretapping for the collection of evidence. The Supreme Court of Canada in a recent judgment, has ruled that Section, Criminal Code54which authorizes the police officers to intercept a private telecommunication without a judicial warrant, is constitutionally invalid.

Judge Davies while declaring the provisions of S. The cardinal rule requires the investigating authorities to first intercept those private communications that may be lawfully intercepted pursuant to S. The significance of a judicial warrant to intercept private telephonic conversations of an individual has been emphasized in the judicial pronouncements of the American as well as the Canadian Courts. Even in the most compelling and demanding circumstances, the Court has been reluctant to discard the crucial qualification of a prior Court warrant for wiretapping.

The vast strides that have been made in the field of technology in the recent past have brought people closer like never before. So, as long as criminals and terrorists seek to misuse technology in pursuance of their evil motives, Governments all over the world will continue to use technology to invade our private spaces. Hence, this brings us to the question; does it take a thief to catch a thief? Then, should States imperil the liberty and the right to privacy of entire populations in order to apprehend a miniscule number of dangerous deviants?

The Human Rights activists and liberal intellectuals believe that Privacy is too important a right to surrender to the State without a fight. The decision of the Supreme Court in the Malkani case was disappointing because it left the police free to steal evidence and the Court to admit the stolen evidence. It is useful to note that Justice Holmes suggested in in his dissent in the Olmstead case, that it is a less evil that some criminals should escape than that the Government should play an ignoble part.

Permission for telephone tapping in the Malkani case was given without taking into consideration a regulatory mechanism that could serve the purpose of preventing the excesses that one normally associates with laws in our Country that give the Government wide powers. There is also a growing body of opinion both in India and abroad that supports telephone tapping and describes it as a necessary evil. These laws curtail civil liberties greatly and their most important provisions deal with telephone tapping.

Additionally, Governments feel that this is the most effective method to combat the menace of terrorism- by pre-empting any terrorist strikes by making proper use of the information obtained by the electronic eavesdropping procedures. The fact remains that everyone condemns telephone tapping but no one refrains from using it when needed.