Interception of telephonic calls and phone tapping in India

“There is nothing we like to communicate to others as much as the seal of secrecy

together with what lies under it.” – Friedrich Nietzsche
The recent judgment by the Hon’ble Delhi High Court has once again broached the
discussions and debates over the topic of interception of telephonic calls and phone tapping in
the country. Indians are very much familiar with this term since they are watching this getting
done in their films/movies by the extraordinarily intelligent police officers or a heroic private
individual to trace or eavesdrop on the dealings or the conspiracies that are taking place. Still,
I think, there is a need to actually learn about the practicality of this topic and delve more into
its applicability, and related laws, and further, analyze it in the context of privacy.
Interception or tapping of calls or messages is very much in correspondence with the concept
of privacy, rather than that it automatically implies the breach of privacy or an attack on it.

Telephone tapping or wiretapping is defined as “the activity of secretly fitting a special

device to someone’s phone in order to listen to their phone conversations without being
noticed”1. It was first known in the U.S.A back in the era of 1890s, immediately after the
invention of the telephone recorder, when Roy Olmstead, a bootlegger was sentenced by the
Court on the basis of evidence obtained against him by tapping a telephone in his house. He,
at that time, had disapproved this action of tapping against him and claimed that his basic
rights have been affected. However, the Seattle court in its judgement maintained his
conviction and said that tapping of phone is not an attack on the privacy of an individual. The
discussions over this subject kept going on before and after the World War II, predominantly
in the U.S. House of Representatives which had elaborated hearings on the permissibility and
legitimacy of interception of telephone calls and wiretapping for the concerns of national
interest.
What’s the status of this law in India ?
According to Section 5(2) of the Indian Telegraph Act of 1885, both the Central
Government and State Governments have the authority to intercept telephone calls. In some
cases, the investigating authority or agency is required to record the suspect’s phone calls.
Before carrying out such an act, agencies must obtain permission from the Home Ministry of
respective State or Union government under the aegis of which the agency functions. Specific
justifications must be cited in the application for authorization. Furthermore, the need of
telephone interception must be shown. Only then the ministry will evaluate the application’s
merits and approve authorization after determining if interception is warranted.
Event of illegal phone tapping and information extraction. The act provides for a maximum
3-year sentence in case of such offences. The inspecting authority may occasionally feel the
necessity to record the phone calls made by the person whose credibility is in question.
Before moving through with such a demonstration, the experts should get approval from the
Home Ministry. All the procedures and pre-requisites to execute such interceptions are given
in
Section 419-A of the Indian Telegraph Act, 1885.
The PUCL case (Peoples Union of Civil Liberties) ensured that such intrusions are only
carried out by the authorized entities and that they do so while staying within the boundaries
of the established legal process. The recommendations that were subsequently offered made
care to explain , inter alia, the steps that must be taken and the authorities that have the
authority to authorize wiretapping ( rewrite the sentence and instead of ‘inter alia mention’ a
couple of recommendations ). Because different laws regulate different forms of
communication, interception as such becomes complicated.
Nexus with Privacy:
The wiretapping of telephones violates both the right to privacy and the right to freedom of
speech and expression, which are of paramount significance in an individual’s life.
However, when the conduct is allowed because of the legal procedure, these violations are
not taken into account. However, the authority that will be used to enforce the right to privacy
must have a compelling justification. Furthermore, it was stated in R.M. Malkani v. State of
Maharashtra that “Article 21 envisions procedure established by law with relation to
impairment of life or personal liberty.” Courts will safeguard innocent citizens’ telephone
conversations from improper or intrusive interception by listening in on them.
Conclusion:
All the channels of the discussions of this topic meet at the juncture called ‘privacy’. The
merits and demerits of any particular law or rule will always be scrutinized from the lens of
the intended objectives and its effect on the fundamental rights of any individual.
Undoubtedly, random interception of anyone’s phone call would reflect light on his/her
privacy but it will be over-ruled if it threatens the ‘public’. Whatever maybe the degree of
universality of any right, but if it acts as an impediment to the society’s progress, that
universality will not be accepted by the courts. Yet, the balance of reasonableness must be
adequately maintained.
As Justice Sachar (former Chief Justice of Delhi high Court) rightly quotes “Civil liberties
are far too important to be left to the executive or the Home Secretary. There is every danger
of wrong permissions being given out, resulting in indiscriminate tapping.”

- Ninad Senad (3rd BALLB, D.E.S Shri Navalmal Firodia Law College,
Pune).