Legality of Phone tapping in India

Phone tapping refers to the monitoring of internet-based communications and phones by a third party by secret means. The word ‘phone tapping’ also means wiretapping or line bugging or interception of the phone. It was first commenced in the USA in the 1890s after the invention of the telephone recorder. Communication surveillance are broadly accepted as a necessary evil.

The Right to privacy is safeguarded as an intrinsic part of the right to life and personal liberty under Article 21, its meaning and scope of personal liberty was recognized for the first time in Kharak Singh’s case (1962). It is not only enshrined under the Indian Constitution but also under Article 17 of the International Covenant on Civil and Political Rights and UDHR i.e. International Bill on Human Rights. The right to privacy is not expressly defined under the Constitution, but telephone conversation is an important facet of a man's private life. 

The right to privacy definitely includes telephone-conversation in the privacy of one's home or office. Telephone-tapping would therefore infringe Article 21 of the Constitution unless it is permitted under the procedure established by law. Now, SC in a number of cases has ruled that the right to hold a telephonic conversation without any interference, is a part of the right to privacy. So, phone tapping in India is governed by the Indian Telegraph Act 1885. Section 5 (2) of the Indian Telegraph Act provides the right to intercept telephones by State and Central Government.

Phone Tapping Laws in India

Clearly, 'Right to Privacy' is not absolute and is subject to the procedure established by law. Thereby, section 5 of the Telegraph Act permits telephone tapping and authorizes the government to take possession of licensed telegraphs and to order interception of messages. On the happening of any public emergency or in the interest of public safety, the State government or Union government or any person specifically empowered by the Central or State government, if satisfied that it is mandatory or expedient to do so, may take temporary possession of any telegraph established, maintained or worked by any person licensed under the said provision of Indian Telegraph Act.

Telephones and other communication devices are enumerated under Entry 31 of the Union List of the Constitution and it is based on Entry 7 in the Federal List of the (GOI Act) Government of India Act, 1935. H.M Seervai once elucidated that the Government of India Act itself had taken the mandatory measures for the advancement of Science in Entry 7, List I, that resulted as “Posts and telegraphs; telephones, wireless, broadcasting and other like forms of communication” and Entry 31, List I of the Indian Constitution preserved this entry.

The terms 'intercept' and 'interception' have not been defined anywhere in the Indian Telegraph Act and the same is needed to be understood in light of the meaning accorded to these terms in accordance with the dictionary and by drawing inference from other related legislations. Usually 'interception' refers to an act of listening in and recording communications, intended for another party for the purpose of obtaining intelligence.

Judicial Precedents on Phone tapping laws

An important case on phone tapping was Chandra Shekhar's phone tapping charges (1990) that kicked up a major controversy. Chandra Shekhar was the then Janata Dal gadfly, who made the dramatic charge that the government was illegally tapping the phones of 27 politicians, including his own.

The important lapses stated in this case were:

• Politicians were subjected to tapping without any proper authorisation.
• Parallel lines were extended to the police headquarters without any written orders from the competent authority.
• Imaginary reasons were given for ordering the tapping of phones.

Later on, a CBI investigation revealed widespread phone tapping undertaken by the Government. The matter went to the SC through a public interest petition filed by the People's Union for Civil Liberties, i.e. the PUCL case (1996).

In PUCL v. UOI (1996), Justice Kuldip Singh concisely stated that “The first step under Section 5(2) of the Telegraph Act is the occurrence or happening of any public emergency or the existence of a public safety interest. Thereafter, the competent and concerned authority under section 5(2) of the Telegraph Act is authorized to pass an order of interception after recording its satisfaction that it is mandatory or expedient so to do in the interest of:

1. Sovereignty and integrity of India.
2. Security of the State.
3. Friendly relations with foreign states.
4. Public order.
5. Preventing incitement or inducement to the commission of an offence."

Therefore, it was held that Telephone tapping violated the fundamental right to privacy and created protection or safeguards against arbitrariness in the exercise of the state's surveillance powers. After the PUCL case, the Centre bought some amendments in the Indian Telegraphic Rules, 1951.

Also, in the case of K.L.D Nagasree v. Government of India (2006), while referring the ruling of the Court in the P.U.C.L case, it was held that "For the reason of making an order for interception of messages in the exercise of powers under Section 5(1) and (2) of the Telegraph Act, 1885 the happening of any public emergency or the existence of a public safety interest is the sine qua non (mandatory)."

The Telegraph Act also gave safeguards against illegal and gratuitous interference in the telegraph and telephone mechanisms whereas even in the case of Rayala M. Bhuvaneswari vs Nagaphanender Rayala (2008) the AP High Court held that the act of tapping by the husband of the conversation of his wife with others was illegal and it violated the right of privacy of the wife. In the said case the husband was recording the conversations of his wife.

Conclusion

Interception in the general sense means monitoring of such information by means of a monitoring device or viewing, examination or inspection of the contents of any direct or indirect information and diversion of any direct or indirect information from its intended destination to any other destination. Remedies that are available to aggrieved persons can be that in cases where unlawful interception infringes the right to privacy then the aggrieved person can file a complaint in the Human Rights Commission.

An FIR can be lodged when illicit phone interception comes into the knowledge of the person. Moreover, the aggrieved person can move to the Court against the person or company doing the Act. Therefore, in India, phone tapping has to be approved by a designated authority and it is illegal otherwise.