The present article draws attention towards the increased interference of telephones with regard to the right to privacy. This matter of interception of the telephone is quite restricted on certain reasonable grounds. The contentions made and discussed herewith are under the Indian perspective on phone tapping, and the preventive measures required to undertake tapping of telephone, the authenticity of an intercepted conversation, the right to privacy with regard to the interception of the telephone.
The information herein is mainly secondary data gathered from different websites which pays attention to various aspects of interception of telephone as well as the right to privacy. It may be contended that phone taping does not infringe the right to privacy when performed for the interest of public or in the case of any emergency. The right to intercept telephone calls is absolutely restricted and is not allowed to be done without the permission of the government officials.
“There is no such thing we like to inform to others as much as the seal of secrecy we want to communicate together with what lies behind it.”
The term ‘phone tapping’ means the interception of phone and data acquired from such interception which is taken under notice. It was first used in the U.S.A in the 1890s soon after the telephone recorder was invented. They considered tapping somebody’s phone not really as a physical incursion of privacy although it violates fundamental rights. In the case of Katz vs. The United States, the Supreme Court of the United States quoted that wiretapping requires a warrant to ensure its legitimacy. In 1978, they created a Foreign Intelligence Surveillance Act (FISA) which issues wiretap warrants in national security cases.
Indian Perspective on Phone Tapping
Article 21 of the Indian Constitution protects an individuals’ freedom of life and liberty. The term ‘personal liberty’ has a wide ambit which includes ‘the right to privacy’ as a major requirement of human beings. Every citizen has a right to protect his personal space and privacy, and also protect his marriage, procreation, family, motherhood, childbearing, and education, from other matters.
“The right to let other person be alone as per his or her wish and will” is what is defined as ‘privacy’ in simple terms. It is also important to note that it is moral and ethical for a person not to peep in some other person’s privacy, for the State it is held as a sacrosanct constitutional obligation. The State neither has the right to collect information about political opponents like the infamous Watergate, in a secretive and selective manner nor can they, like a prosecutor or as an Investigating officer, collect information and material for investigation.
If they do so, except in the case where the law mandates them to do so, it will be considered a violation of his or her right to privacy, to live with respect and dignity. It is the very essence of Human Rights to make sure that a person is protected from any kind of intrusions into his privacy except in the abovementioned exceptional instances.
Life and liberty, are not empty words. They consist of all those necessary ingredients which give meaning to them and that does include the privacy right of a person and the right to personal liberty under our Constitution. Any kind of breach or invasion of these rights, which are fundamental in nature, can be performed only under the given constitutional exceptions and limitations.
The action of telephone tapping not only affects the right to privacy but also the right to freedom of speech and expression, and both are essential Fundamental Rights under the Indian Constitution.
Article 21 of the Constitution, which provides us with the power to safeguard our life and liberty, has the power to allow only those legislature-made law which attains the constitutional requirements abides with the procedure which is just, fair and reasonable. Further, violation of the right of freedom of speech and expression is not permitted except under the exceptional circumstance of reasonable limitation as provided under Article 19 of the Indian Constitution.
Telephone tapping basically refers to listening or / recording communication on the telephone with the motive of getting information about different activities. It is also called ‘wire-tapping’ in a few countries (majorly in the USA). Phone Tapping is only allowed with official permission from the concerned department. But in case if it is undertaken in an unofficial and unlawful way then it is illegal and will result in prosecution of the person responsible for breach of privacy.
In India, the act of phone tapping is permissible only in the authorized and lawful way through the granted permission of the government officials from the concerned departments. However, if it is done in an unauthorized way or in an unofficial way then it said to be illegal and will result in prosecution of the person responsible for the violation of the rights and invasion of privacy.
The Central Government as well as the State Governments, both have the power to intercept telephones under Section 5(2) of the Indian Telegraphic Act, 1885. There are circumstances when an investigating officer has to record the phone conversations of the individual who is under suspicion. Such officers or the agency/authority are supposed to seek permission from the Home Ministry before proceeding with such an act. An application needs to be given seeking permission and stating the particular reasons so that the need for interception of the telephone can be proved and can be considered valid. When adequate reasoning is furnished, the ministry may uphold the application and the reasons to grant permission upon analyzing the merits of the application for the interception.
Every investigating authority or agency fills up an authorization slip before putting a telephone under surveillance. The Home Secretary of the particular state is the department that shows the red flag to perform such action if it is concerned with the state. Telephones of politicians cannot be wiretapped officially since a qualifier on the slip includes that the inspected person is not a non-elected person.
Nowadays, every telephone service provider has a combined station that has collectively gathered servers known as mediation servers so when they intercede by linking the cellular or the telephone users and the investigating agencies to tap the phones. There are two types of telephone tapping services present which are, Integrated Services Digital Network (ISDN) and the leased line. In ISDN service, an interception server taps the call and then transfers it through Primary Rate Interface (PRI) line directly to the office of a government official department. In addition to that, the police will also be able to acquire the phone calls on their PRI line and save up the recordings of those intercepted calls to link with the computers. An audio file of the same can also be saved in the mediation server, temporarily.
- Unlawful interception results in the infringement of the right to privacy and the victim of the same can file a complaint in the Human Rights Commission.
- An FIR can be lodged in the Police Station when any kind of illicit phone interception comes to the knowledge of the person.
- Lastly, the aggrieved person can at any time approach the Court against the individual/company who performed such illegal act under Section 26 (b) of the Indian Telegraphic Act which states that a person intercepting the phones would be sent for the imprisonment of 3 years. A person can also be prosecuted for lawful interception of the telephone but sharing of the data acquired through such interception of the same is explicitly prohibited.
The powers vested upon the authorities who are entitled to intercept telephones are not absolute. There are certain reasonable restrictions present with it in which the telephone of an individual cannot be tapped until a proper reasonable grounds are provided under an application to do so because no person shall be deprived of his/ her personal liberty. Therefore, it is clear now that the act of phone tapping is not in violation of the right to privacy so long as it is proved that it is being done for the public interest and safety or in the times of emergency.
The author is of the opinion that such cases of telephone tapping should be viewed seriously because such serious violations reduce the individual’s constitutional right and human right down to the point of mockery and subject him to ridicule and indignity. Such infringement and invasions are not a part of a democratic and civilized society and hence must be refrained from.