The distinction between private and public thought has been eroded by technological modernism. Wire-tapping and phone tapping are notions that are intertwined with call recording. An individual’s remarks can be confirmed by recording a call.
A call recorded with the purpose of injuring someone is unethical, and recording without the agreement of the person speaking violates their right to privacy. Special rules pertaining to electronic records are outlined in Section 65B of the Indian Evidence Act of 1872.
Dealing with tape recordings necessitates caution. From a legal standpoint, the method of getting telephone recordings is critical. With the aid of major cases and rulings, the Indian position on the admissibility of tape recordings is examined.
Right to privacy and call recordings
Taping a person’s private conversations is a serious crime unless there is a valid cause and authorization for doing so. Individual privacy is a crucial issue that cannot be overlooked in the context of electronic evidence.
The main legal provision safeguarding privacy in Article 21 of the Indian Constitution of 1949. Personal liberty is also guaranteed as an inalienable right. However, if a legal authority is in place, these phone calls are no longer private and can be seized or recovered as evidence in court. Furthermore, call records are listed under the list item “posts and telegraphs; telephones, wireless, broadcasting, and other kindred forms of communication” in Entry 31 of the Union List of India (List I).
Only in cases of public emergency or in the interest of public safety is the right to privacy in the context of recording calls significant. It was declared in People’s Union of Civil Liberties v. Union of India (2003) that surreptitiously recording a person’s private conversations is a significant infringement of an individual’s right to privacy.
The constitutionality of Section 5(2) of the Indian Telegraph Act of 1885 was questioned in this case. The Section gives state and central institutions in India the ability to record telephone conversations that are entirely against the nation’s sovereignty and security. The Court also established extensive measures to ensure that telephone tapping warrants are not issued arbitrarily.
- Only the national government or a state government’s Home Secretary may issue orders for phone tapping. In a crisis, this authority might be delegated to a member of the focal or state government’s Home Department, and a duplicate of the request should be sent to the pertinent Review Committee in one week or fewer.
- The person making the request should assess whether the information sought may be obtained in a more efficient manner.
- Orders issued under the Indian Telegraph Act of 1885 are valid for a long period after they are issued.
- Secretary-level officials from both the federal and state governments will serve on the survey committees. They could check if a capture request was made in compliance with the law, and if it wasn’t, they may keep it and order the destruction of any copies of the captured interchanges.
- The person with the authority to issue the block attempt request should keep track of the following: I intercepted communications; (ii) the degree to which material is revealed; (iii) the number of people to whom the material is revealed and their character; (iv) the degree to which the material is replicated; and (v) the number of duplicates made.
The Supreme Court’s decision in Vinit Kumar v. Central Board of Investigation and others (2019), which addressed the admissibility of tape-recorded conversations as court evidence, demonstrates the significance of the right to privacy. The case also demonstrates that any order for phone interception must comply with Rule 419A of the Indian Telegraph Rules, 1951. In K.S Puttaswamy v. Union of India (2018), the Supreme Court established the “Principles of proportionality and legitimacy” to examine the constitutionality of government-issued call recording orders. The government did not have the right to issue orders for telephone tapping if there was no risk to the public.
In India, telephone recording is legal.
The concept of an electronic record is defined in Section 2 of the Information Technology Act of 2000, which includes sound saved, received, or communicated in an electronic format. In addition, Section 85B of the Indian Evidence Act of 1872 governs the altering of recorded electronic evidence. A digital signature verifies the validity and integrity of an electronic document. To sign the record, this signature must be attached.
Furthermore, Section 5 of the Indian Telegraph Act of 1885 gives the government the authority to seize licenced telegraphs and mandate message interception. This section gives the federal or state governments the authority to procure telegraphs in the interest of public safety.
As a result, it can intercept electronic transmissions in the event of a public emergency. The requirements of admission of electronic evidence are outlined in Section 65B of the Indian Evidence Act, 1875, which also stipulates that a certificate is required for its admissibility. Section 2(1)(t) of the Information Technology Act, 2000 defines an electronic record under Indian law.
Furthermore, Rule 419A of the Indian Telegraph Rules, 1951 is a long piece of legislation. It may be broken down into two parts. The purchase and examination of lawful instructions is the first stage. This section indicates that only the union or state home secretary can issue interception orders under Section 5 of the Indian Telegraph Act, 1885.
In addition, in an emergency, a valid order can be issued by a person with the level of joint secretary or above. Only when all other options for obtaining the information have been exhausted may a legal order be obtained. The interception procedure is the second stage. In India, it is carried out by law enforcement forces. The name of the employees and the agency is not divulged to the public during the interception procedure.
Courts’ acceptance of call records
Electronic evidence in the form of call recordings is now widely employed in civil and criminal cases, but its admissibility is more crucial. Electronic recordings are admissible under Section 65B of the Indian Evidence Act, 1872. A discourse recorded without at least one speaker’s explicit permission is not legally legitimate. The recording of a discussion should be agreed upon by all parties. In any case, the most essential legislation behind creating the legitimacy of submitting a ‘digital’ form of evidence to the court is evidentiary value.
State of Punjab v. S. Pratap Singh (1964)
After evaluating the evidentiary value of tape-recorded talks, the Supreme Court accepted a telephone recording of a discussion between two parties in this case. Only because it assisted in the resolution of the case was the evidence offered accepted. The parties claimed to have had a chat that was recorded unlawfully and afterward approved in this instance. As a result, we gain insight into the admissibility component of recorded electronic evidence through this case. Only because it aided in the convicting process did the court accept unlawfully obtained taped discussions.
Important legal judgments
R.M. Malkani v. the State of Maharashtra (1973)
The Indian Telegraph Act, according to the Supreme Court of India, is the most essential statute in the area of legal tape recordings. The issue, in this case, was whether or not tape-recorded discussions may be used to prosecute someone criminally. The evidence in question was obtained unlawfully through tape recordings, which was a violation of Section 25 of the Indian Telegraph Act. As a result, the evidence was inadmissible.
It was also decided that the Indian constitution’s protection of privacy only protects innocent persons, not those who are attempting to vindicate the police because they have committed immoral offenses.
In this instance, a doctor sought to bribe his way out of criminal punishment for causing postoperative death in a hospital. The appellant’s counsel contested the tape recordings’ admissibility, claiming that they were made in contravention of Articles 20 and 21 of the Indian Constitution. Despite the breach of the Telegraph Act, the Court decided that the tape recordings may be used as evidence.
Ram Singh v. Colonel Ram Singh (1986)
This case involved an accusation that the appellant protested to the suspension of voting in a village. The question was whether or not remarks made in the toll booth were admissible. The cassette recording was ruled inadmissible by the court. The appeal was thus dismissed by the Supreme Court on the grounds that the tape recordings were insufficient to establish the evidence necessary to show the question presented by the appellant. The court also concluded that the recording lacked public confidence. As a result, call recordings, audio, and other types of digital evidence should be protected in the same way that other devices involve the right to privacy.
The exponential rise of the technology sector in recent years has made conducting our personal affairs using telecom services both convenient and perilous. Under Section 5(2) of the Indian Telegraph Act, 1885, both the Central and State governments have the authority to record calls. Under Section 65B of the Indian Evidence Act, electronic evidence is an innovative technique of providing evidence to the court. We may compare the two cases in this essay.
The legal status of call recording evidence in nations like New Zealand and Sweden, as well as the legislation of India on the subject. Various state and federal statutes, as well as certain historic decisions, define India’s legal position on call recording.