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