PHONE TAPPING RIGHT TO PRIVACY UNDER ARTICLE 21
In the recent times technology has become the part and parcel of our lives. The world has transformed into a global village where our lives have become more connected than ever. It is quite obvious that with the development of social media and sophisticated technology our lives have become less private. Hence it became more important than ever to secure the privacy of individuals.
HISTORY OF PHONE TAPPING
The term ‘phone tapping’ also means wiretapping or interception of phone. It was first started in U.S.A in 1890s after the invention of telephone recorder. Although, the Supreme Court of U.S.A. didn’t become a valid law until 1928, at the height of Prohibition. Roy Olmstead, a Seattle bootlegger, was convicted on the basis of evidence congregated by tapping a phone in his home. He then stated that, the authorities had violated his fundamental rights but the court upheld his conviction, stating that tapping somebody’s phone is not a physical incursion of privacy. Prior to the attack on Pearl Harbor and the ensuing ingress of the United States into World War II, the U.S. House of Representatives held hearings on the legitimacy of interception of telephone for national defense. Important legislation and judicial decisions on the validity and constitutionality of wiretapping had taken place years before World War II. Conversely, it took on new urgency at that time of national crisis. In the case “Katz v. United States”, Supreme Court of U.S. stated that wiretapping requires a warrant. In 1978, the Foreign Intelligence Surveillance Act (FISA) was created for issuing wiretap warrants in national security cases.
PROCEDURE FOR PHONE-TAPPING IN INDIA
Telephones along with other communication devices are mentioned under Entry 31 of the Union List of the Indian Constitution and it is based on Entry 7 in the Federal List of the Government of India Act 1935.
As explained by Seervai, the Government of India Act itself had taken the necessary measures for the advancement of Science in Entry 7, List I, which resulted as “Posts and telegraphs; telephones, wireless, broadcasting and other like forms of communication” and Entry 31, List I of the Indian Constitution preserved the entry, hence the requirement to construe the word ‘telegraphs’ lithely to consist of telephones, broadcasting etc did not arise. Art.21 of the Indian Constitution says that “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
The expression ‘personal liberty’ includes ‘right to privacy’. A citizen has a right to safeguard his personal privacy, plus, that of his family, education, marriage, motherhood, child bearing, and procreation, among other matters.
Both, the Central and the State Governments have a right to tap phones under Section 5(2) of Indian Telegraphic Act, 1885. There are times when an investigating authority/agency needs to record the phone conversations of the person who is under suspicion. Such authorities are supposed to seek permission from the Home Ministry before going ahead with such an act. In the application specific reasons have to be mentioned. In addition, the need for phone tapping must be proved. Then the ministry considers the request and grants permission upon evaluating the merits of the request.Every agency fills out an authorization slip before placing a phone under surveillance. For the States, it is the State Home Secretary who signs this. Telephones of politicians cannot be tapped officially a qualifier on the slip says the surveyed person is not an elected representative. Today, every cellular service provider has an aggregation station which is a clutch of servers called mediation servers (because they mediate between the cellular operators and the law enforcement agencies) to intercept phones. There are two kinds of interception facilities available today-Integrated Services Digital Network (ISDN) and the leased line. In ISDN facility, a mediation server intercepts a call and then transmits it through a Primary Rate Interface (PRI) line to the office of a government agency. Also, the police can listen to the phone on their PRI line and store the recording to attached computers. A sound file of the intercepted call is also recorded and stored in the mediation server, simultaneously.
EVIDENTIARY VALUE OF RECORDED CONVERSATION
The next question regarding evidence of the tape-recorded information is about utility and evidentiary value. Questions like whether such evidence is primary or secondary; whether it is direct or hearsay and whether it is corroborative or substantive are important in this regard.The point whether such evidence is primary and direct was dealt in the Presidential Election case. In this case, the petitioner alleged that Jagat Narain had tried to dissuade him from contesting the election. Their tape-recorded telephone conversation was then produced in Court. The Court utilized the conversation to show that a “witness might be contradicted when he denies any question tending to impeach his impartiality” as per Section 153 of the Evidence Act, and thus observed that the tape itself would become the primary and direct evidence of what has been said and recorded.This view was reiterated by the Apex Court in the Malkani case where it was held that when a court permits a tape recording to be played over, it is acting on real evidence if it treats the intonation of the words to be relevant and genuine. The same case expressed that such recorded conversations are also vital for the purposes of corroboration and cross-examination in order to test the veracity of the witness.Referring to the proposition of law as laid down in the Presidential Election case, a three judges bench of the Apex Court in the case of Ziyauddin Burhanuddin propounded that the use of tape recorded conversation was not confined to purpose of corroboration and contradiction only, but when duly proved by satisfactory evidence of what was found recorded and of absence of tampering, it could be used as substantive evidence. Giving an example, the Court pointed out that when it was disputed or in issue whether a person’s speech on a particular occasion, contained a particular statement there could be no more direct or better evidence of it than its tape recorded, assuming its authenticity to be duly established. The Court also considered the value and use of transcripts and expressed the view that transcript could be used to show what the transcriber has found recorded there at the time of transcription and the evidence of the makers of the transcripts is certainly corroborative because it goes to confirm what the tape record contained.
SAFEGUARDS AGAINST PHONE-TAPPING
In the last few years, various scandals came in notice with respect to the subject of phone tapping. This issue became so concentrated that it was twisted into a political agenda. The opposition parties and the party in power started blaming each other. It was suspected that phones were intercepted by the government on command of the ruling party. It was the time when the Peoples Union of Civil Liberties [PUCL] filed a PIL to the Supreme Court of India requesting them to clarify the law on the point of electronic tapping and interception.
The petitioners contended that the arbitrary power provided under Section 5 (2) of the Indian Telegraphic Act, 1885 should be regulated. They also argued that the amendment which was made to Section 5 (2) in 1971 was tremendously treacherous as it allowed interception not only in the times of emergencies and for public order and safety, but also for agitation of offenses.In the last few years, various scandals came in notice with respect to the subject of phone tapping. This issue became so concentrated that it was twisted into a political agenda. The opposition parties and the party in power started blaming each other. It was suspected that phones were intercepted by the government on command of the ruling party. It was the time when the Peoples Union of Civil Liberties [PUCL] filed a PILto the Supreme Court of India requesting them to clarify the law on the point of electronic tapping and interception.The petitioners contended that the arbitrary power provided under Section 5 (2) of the Indian Telegraphic Act, 1885 should be regulated. They also argued that the amendment which was made to Section 5 (2) in 1971 was tremendously treacherous as it allowed interception not only in the times of emergencies and for public order and safety, but also for agitation of offenses.After the PUCL case, the Union Government bought some amendment in the Indian Telegraphic Rules, 1951 and inserted Rule 491-A to regulate the tapping of phones.
But this amendment also did not bring any major change in the circumstances.
In 1997, 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 the interests 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.U.C.L. case, acknowledged the nonexistence of procedural preventions for the substantive provisions of the above mentioned Section and referred Maneka Gandhi case and took the significance of procedural patronage to any substantive provision which deals with the fundamental right of individual, into consideration, where it was opined:
” Procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself. ”Thus, the requirement of procedural safeguards for the provisions of Section 5(2) becomes significant in the light of ‘right to privacy’ guaranteed by Article 21, Constitution of India, 1950.
Interception of private conversation, void of just and fair procedure, would infringe an individual’s right to privacy assured under Article 21, which might render the substantive provision, allowing interception, as unconstitutional.
Justice Kuldip Singh concisely stated
“The first step under Section 5(2) of the Act, therefore, is the occurrence of any public emergency or the existence of a public safety interest. 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.”In the case of K.L.D Nagasree v. Government of India, while referring the observation of the Court in P.U.C.L. case, it was held that:
“A bare reading of the above provision shows that for the purpose of making an order for interception of messages in exercise of powers under Sub-Section (1) or Sub-Section (2) of Section 5 of the Telegraph Act, 1885, the occurrence of any pubic emergency or the existence of a public safety interest is the sine qua non.”The Act also provides safeguards against illegal and gratuitous interference in the telegraph and telephone mechanisms. According to Section 25,“any person intending to intercept or to acquaint himself with the contents of any message damages, remove, tampers, with or touches any battery, machinery, telegraph line, post or other thing whatever, being part of or used in the working thereof shall be punished with imprisonment for a term which may extend to three years or with a fine, or both.”
Unlawful interception infringes the right to privacy and the aggrieved person can file a complaint in the Human Rights Commission.
An FIR can be lodged in the nearest Police Station when illicit phone interception comes into the knowledge of the person.
Moreover, the aggrieved person can approach the Court against the person/company doing the Act in an unauthorized comportment under Section 26 (b) of the Indian Telegraphic Act which provides for the imprisonment of 3 years for persons held for unlawful interception. An individual can also be prosecuted for authorized interception of telephone but sharing of the data of the same in an explicit manner.
RIGHT TO PRIVACY WITH RESPECT TO INTERCEPTION OF TELEPHONE
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. Government can exercise its rights to intercept an individual’s telephone only to a certain extent, by showing reasonable grounds to do so. 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.
Husband Tapping Conversation of his Wife With Others Seeking to Produce In Court, Violates Her Right To Privacy Under Article 21Violates Her Right To Privacy Under Article 21
In Rayala M. Bhuvneswari v. Nagaphomender Rayala 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.S. with others. She denied some portions of the conversation. The Court held that the act of tapping by the husband of conversation of his wife with others without her knowledge was illegal and amounted to infringement of her right to privacy under article 21 of the Constitution. These talks even if true cannot be admissible in evidence. The wife cannot be forced to undergo voice test and then asked the expert to compare portion denied by her with her admitted voice. The Court observed that the purity of the relation between husband and wife is the basis of marriage. The husband was recording her conversation on telephone with her friends and parents in India without her knowledge. This is clear infringement of right to privacy of the wife. If husband is of such a nature and has no faith in his wife even about her conversations to her parents, then the institution of marriage itself becomes redundant
LATER DEVELOPMENTS IN RIGHT TO PRIVACY
Right to privacy, once incorporated as a fundamental right, is wide enough to encroach into any sphere of activity. The conferment of such a right has become extremely difficult with the advancement of technology and the social networking sites. But the other side of the picture is that right to privacy of a person includes the right to seclude personal information. The extent to which the realm of privacy of each person should remain is subjective, which might differ from person to person. The recognition of right to privacy can also be seen in the S. 43 of Information Technology Act which makes unauthorised access into a computer resource invoke liability.
Today, each person is a press, taking in view the emergence of blog spots and social networking sites. Many a times, the right to privacy may come in conflict with the right to press the right to press is a right derived from Article 19 (1) (a) in particular. The right to expression of a person may come in conflict with the right to privacy of another person. The question, where there is a conflict, which should prevail over the other, is well explained by bringing in the concept of ‘public interest’ and ‘public morality’. The publication of personal information of an individual without his consent or approval is justified if such information forms part of public records including Court records. Each case is distinct and each right is special.
Any right derived from Article 19 can be derived from Article 21 too, under the wide interpretation of ‘personal liberty’. Though the Court generally applies the test of ‘public interest’ or ‘public morality’ in case of conflict between two derived rights, another interpretation is also possible. A right derived under Article 21 is superior to a right derived under Article 19, since the state enacting law in contravention of such right can be saved under the reasonable restrictions under 19(2) to (5). The position was different in the Pre-Maneka era, when Article 21 was not a source of substantive right.
INTERNATIONAL CONCEPTS OF PRIVACY
Article 12 of Universal Declaration of Human Rights (1948) states that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attack upon his honour and reputation. Everyone has the right to protection of the law against such interference or attacks.”
Article 17 of International Covenant of Civil and Political Rights (to which India is a party) states “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence, nor to unlawful attacks on his honour and reputation”
Article 8 of European Convention on Human Rights states “Everyone has the right to respect for his private and family life, his home and his correspondence; there shall be no interference by a public authority except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the protection of health or morals or for the protection of the rights and freedoms of others.”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. This is a very major step taken by government and to intercept a telephone of an individual, reasonable grounds to take such a step should be mentioned as it is a matter of someone’s privacy. 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. Interception of telephone cannot be done in any case except the two which are mentioned above. Any evidence acquired through interception of telephone is also not in violation of right to privacy and it is also considered as admissible evidence. Interception of telephone without the permission of government is in violation of right to privacy of a person as a person may talk about his problems, child education, health etc. which he would not like to share it with anyone else. The powers conferred upon the authorities to intercept telephone are not absolute. There are some reasonable restrictions attached to it. Telephone of an individual cannot taped unless and until reasonable grounds are shown to do such act as no person shall be deprived of its personal liberty. Hence, phone taping is not in violation of right to privacy unless and until it is done for the interest of public or in a case of emergency.
Such incidents of telephone tapping should be viewed seriously as such violations reduce the individual’s constitutional and human right to mockery and subject him to indignity and ridicule. Such invasions are undemocratic and uncivilized.