Is telephone tapping legal in India?

Is telephone tapping legal in India?

In the modern epoch technology has made inroads among the personal perception as well as a public notion. Recording calls linked with the standards of wire-trapping or mobile phone tapping. Recording a call enables us to verify the phrases spoken by an individual. However, a call recorded for harming someone is unethical and recording without the consent of an individual talking is an infringement of the right to privacy. Section 65B of the Indian Evidence Act of 1872, hereinafter referred to as Evidence Act, delineates provisions referring to digital records.

Dealing with tape recordings entails a sensitive approach. The way of acquiring phone recordings is vital from a legal perspective.

Lets’ put some shine on the Indian attitude towards the tape recording and its admissibility under the law with the assistance of legal provisions and judgments.

Right to privacy

Phone tapping is an extreme crime except there may be a right motive and authority at the back of recording a person’s non-public conversations. The right to privacy of an individual is a paramount idea that cannot be unnoticed in the view of electronic evidence. Article 21 of the Indian Constitution is an imperative legal provision concerning privacy. Howbeit, if an authority or an individual is legally authorized, then these telephonic conversations are not private anymore.

In a landmark case titled People’s Union of Civil Liberties Versus Union of India, the Hon’ble Apex Court observed that secretly recording a person’s private conversation is a grave violation of the right to privacy. This case challenged the constitutional validity of Section 5 (2) of the Indian Telegraph Act, 1885, hereinafter referred to as the Telegraph Act, which gives legal authority to state and central authorities in India to record those telephonic conversations that are purely against the sovereignty and security of the nation.

Moreover, in the case of Vinit Kumar Versus Central Board of Investigation and others, the Hon’ble Supreme Court answers the question of the permissibility of tape-recorded conversations as judicial evidence. In another case of K.S. Puttaswamy Versus Union of India, the Hon’ble Top Court laid down the “Principles of proportionality and legitimacy” to determine the legality of call recording orders issued by the government. It was held by the court that if there is no risk to the public, then the government had no authority to issue orders for telephone tapping.

What is provided under the law?

Section 2 of the Information Technology Act, 2000, hereinafter referred to as IT Act, defines an electronic record, which includes sound stored, received, or sent in an electronic form. Apart from this, Section 85 B of the Evidence Act 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.

Besides this, Section 5 of the Telegraph Act provides the power for the Government to take possession of licensed telegraphs and to order interception of messages. This Section provides a right to the Central or the State government to procure telegraphs in the interest of public safety. Therefore, it can take hold of electronic messages in a public emergency.

Section 65B of the Evidence Act provides for the conditions of admissibility of electronic evidence, and it also provides that a certificate is necessary for its related admissibility. Under Indian law, an electronic record is defined under Section 2 (1) (t) of the IT Act.

Are call records admissible as evidence?

Irrefutably, electronic evidence in the form of call records is used widely in civil and criminal matters; however, its admissibility factor has always been a matter of debate. Section 65B of the Evidence Act, provides for the admissibility of electronic records. Notably, a speech documented without the unequivocal permission of at least one of the speakers is not legally valid. 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.

In R.M. Malkani Versus State of Maharashtra, 1973, the Hon’ble Supreme Court held that Article 21 was invoked by submitting that the privacy of the appellant’s conversation was invaded. Article 21 contemplates a procedure established by law concerning deprivation of life or personal liberty. The telephonic conversation of an innocent citizen will be protected by Courts against wrongful or high-handed interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. It must not be understood that the Courts will tolerate safeguards for the protection of the citizen to be imperilled by permitting the police to proceed by unlawful or irregular methods.

Conclusion: –

It is irrefutable to say that in certain circumstances the Government has to act contrary to the fundamental rights of a person and telephone tapping is also one of the same. However, interception of the telephone is not a violation of the Right to Privacy only if it is done in the interest of the public or in case of emergency, as cited under Telegraph Act. Moreover, any evidence acquired through telephone tapping is not in violation of the right to privacy and it is also considered admissible evidence. The creation of such a regime requires a careful and insightful balance between individual interests and legitimate concerns of the government.

Kiranpreet Kaur

Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali

How to evict a tenant in India?

How to evict a tenant in India?

Renting out a property has become one of the major sources of income, especially in urban areas. It’s quite easy to find a tenant. However, lending a property to a tenant could be stressful in a situation where such tenant neither pays rent nor vacates the premises. To avoid such situations, people are becoming well-versed with the tenant laws.  Although in India tenancy laws are tend to in favour of tenants. However, there are some grounds on the basis of which a landlord can evict a tenant.

What are the grounds to evict a tenant in India?

Indian laws dealing with the tenant-landlord relationship authorize the landlords to file an eviction petition against the tenant if there is a justifiable and valid reason for doing so. The grounds for eviction of a tenant in India are enumerated below: –

  • If the tenant has intentionally not paid rent as agreed between the parties for more than 15 days from the date when it becomes due.
  • If the tenant has further sublet the property without the permission of the landlord.
  • If the tenant is using the property for a purpose other than that mentioned in the rental agreement or any unlawful purpose.
  • If the tenant has caused any loss which results in the loss of utility and value of the property.
  • If the tenant is found to be causing a nuisance in the neighborhood.
  • Landlord requires the property for bonafide reasons like for self-occupation or for any family member.
  • If the property is required to be repaired or renovated.

Step-wise process for eviction: –

Once you have determined a logical and just reason for the eviction. Then following steps are required to get your properties vacated from the possession of your tenant: –

Sending a notice: – Primarily, one needs to send an eviction notice to the tenant by stating the reason for doing so and the time and date by which the tenant has to vacate the rental property. It may be noted that reasonable time must be given to the tenant to vacate the rented premises.  In case, there are co-owners of the property, then both co-owners can act as the landlord in an individual capacity, therefore, a notice sent by any of them will be considered valid and legal.

In the case of Shri Ram Pasricha v. Jagannath, 1976 SSC 184, the Hon’ble Apex Court held that a co-owner is as much an owner of the entire property as any sole owner of a property is and hence one co-owner is the landlord and a notice issued by him or a suit filed by him is legally valid as well as sufficient.

Filing a suit: – Now, the question comes into the mind that what should I do if a tenant doesn’t move out despite the legal notice, so, in such a situation, you need to take a bit harsh step, which is to file an eviction suit. Since there may be chances that the tenant may refuse to vacate the rented property even after receiving the notice, so the landlord must be prepared for this. The eviction suit can be filed on the basis of a rent agreement in a civil court under whose the rented premises are there.

Final outcome: – After hearing both parties, the court reached its conclusion by pronouncing a judgment in a suit. If the court allows the suit in favour of the landlord, the tenant must vacate the premises within a time as granted by the court. And just in case, the tenant still not vacates the premises, then the tenant may be evicted by the police force.

Can a landlord evict a tenant forcefully?

No, the landlord has no right to throw out the tenant from the premises forcefully. A landlord cannot take the police assistance to throw out the tenant. Opting for other wrongful methods such as shutting off utilities like water supply, water, and electricity connection, or throwing the articles, etc. can make the landlord liable in a court of law.

Is it mandatory to enter into a lease agreement?

Basically, it depends upon the tenure of the lease. Exemplify, if you are going to renting out your property for a few months, it is not required, yet, a lease agreement is mandatory if you have plans to lease out the property for more than 11 months. Apart from this, it is also mandatory to get your lease agreement registered. The lease agreement includes terms and conditions of renting out the property like tenure, amount of rent, termination of the agreement, and penalties, etc. Hence, it is always recommended to enter into a lease agreement with your prospective tenant, since it offers a layer of security to the landlord in case the tenant refuses to vacate the rented premises.

Conclusion: –

Renting a property is a common practice in our society and is beneficial simultaneously for both the owner and the tenant. Yet, there are some situations where the landlord gets tired of the tenant due to some reasons including not paying rent timely, and causing a nuisance in the neighborhood, etc., and consequently, the landlord may ask the tenant to leave the premises. The dispute may be resolved amicably if a tenant agrees to leave the property, but if not, then the landlord has to opt for the legal remedy i.e. eviction process.

-Kiranpreet Kaur

Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali