This article has been written by Aryan Lukka.

Introduction

Phone has become an integral part of one’s routine. As a consequence of COVID-19, restrictions and limitations on physical meetings have inadvertently increased the importance of distant communication, which indeed, has made smartphone technology a compulsion. However, there has been thought of caution when it comes to having conversations through any digital device. In recent times, various controversies in relation to phone tapping have raised privacy concerns with respect to telephonic conversation.

With the amendment to the Evidence Act, 1872,  in pursuance of the Information Technology Act, 2000, electronic evidence became admissible in the court of law. Section 65-B of the Act states that “…any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be also a document…”^[1], which includes recorded telephonic conversations. The evidence, if secondary, has to pass through a procedural requirement of obtaining a certificate as prescribed under Section 65-B (4) of the Act, except in the cases where the evidence itself is an original document.

A series of judgements in India make recorded conversation admissible in court, of course subject to certain qualifications, even if, in certain cases, obtained illegally. As right to privacy has been regarded as a “Fundamental Right under Article 21 of the Constitution of India”^[2]; recording conversation of the person so speaking, without intimation to such recording, is a direct breach of his Fundamental Right.

Fundamental rights are regarded as one of the most sacrosanct rights in law. However, in the most recent case of Deepti Kapur vs. Kunal Julka^[3], private conversation between husband and wife is considered as admissible evidence in the matrimonial court. Well, the judicial journey of admissibility of recorded conversation has been self-contradictory, based on the nature of proceedings and provisions of the law in which it is sought to be introduced and the manner in which such evidence was obtained.

Development of law in this area

In India, the courts have predominantly in substance determined the legality and admissibility of evidence based on its relevance to the facts of the case. In 1968, the Supreme Court, in Yusufali Esmail Nagree vs. The State of Maharashtra^[4] held that the conversation so recorded is valid and permissible under Section 8 of the Evidence Act as it is a part of res gestae and is corroborative to the evidence given by the witness.

Herein, the conversation was tape-recorded by a government officer to investigate a complaint on corruption and bribery. It was stated that the defence of self-incrimination under Article 20(3) of the Constitution would not be applicable as the person so speaking was not forced to confabulate and his act was voluntary. It further held that the recorded conversation is admissible as evidence unless it is tampered with, and recording the conversation without intimation cannot be an impediment to admissibility.

The test of relevancy concerning the admissibility of a recorded conversation is laid down in R. M. Malkani vs. State of Maharashtra (1973)^[5]. The conversation so recorded is admissible in court if:

1. It is relevant to the issues of the case;
2. There’s voice recognition; and
3. There’s proof of accuracy.

The Indian Evidence Act has no provision to administer illegally obtained evidence. Nevertheless, the law with respect to it has been laid down in State (NCT of Delhi) vs. Navjot Sandhu (1973)^[6]. In this case, the court relied on R.M. Malkani stating “admissibility of the tape-recorded conversation illegally collected or obtained is no longer res integra”.

The state has express power under Section 5(2) of the Telegraph Act to tap phone conversations. In Anuradha Bhasin vs. UOI (2020)^[7] it was held that in order to invoke powers under section 5(2) the Government must satisfy its pre-requirements, i.e.:

1. There must be an occurrence of any public emergency or the power must be exercised for public safety
2. Authority must be satisfied. That it is necessary and expedient to pass orders in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to commission of an offence and must record reasons thereupon.

The Delhi High Court recently in Deepti Kapur vs. Kunal Julka (2020)^[8] passed judgement based on relevancy of the evidence. In this case of matrimonial dispute the husband tapped the wife’s telephonic conversation with her friend via CCTV camera installed in the couple’s bedroom and produced it in court as evidence to substantiate a ground for divorce.

The Court in its concluding remarks stated “ ……… Even otherwise, the conversation between the wife and her friend, which is the subject matter of recording on the CD, in which she is alleged to have spoken about the husband and his parents, would be a ‘relevant fact’ as understood in law, upon a combined reading of sections 5, 7 and 8 of the Evidence Act. To that extent therefore, the contents on the CD are relevant for purposes of the divorce proceedings.” However, the verdict has been challenged and the case is now pending before the Apex Court.

Right to privacy as a fundamental right

In People’s Union for Civil Liberties (PUCL) vs. Union of India, (1996)^[9], the Apex Court has stated that if the facts of the case determine the existence of the right to privacy, it shall be adjudicated within the purview of Article 21. It further stated that ascertaining existence or infringement right to privacy is contingent on the facts of the particular case. With regards to phone tapping the court expressly stated that ‘telephonic conversations are typically of a private and intimate nature. They have become part of one’s routine. It has become so vital that increasingly individuals are carrying phones in their pockets. The right of a person to have a phone conversation privately at his home or office without any intrusion can unquestionably be proclaimed as the right to privacy. Phone tapping would therefore infringe Article 21 except if it is allowed in accordance with the law.

The Andhra Pradesh High Court in Rayala M. Bhuvaneswari vs Nagaphanender Rayala (2008)^[10] specifically dealt with admissibility of recorded conversation in a matrimonial matter. In this case, the husband recorded the wife’s telephonic conversation with her friends and parents and requested the court to make it admissible as evidence. The Court expressly held that the husband has no power to record the wife’s conversation without her consent and the act of such recording is a direct breach of the right to privacy guaranteed under Article 21.

In 2017, the nine judge bench of the Supreme Court, in K.S Puttaswamy v. Union of India^[11] has held the right to privacy as a fundamental right under Article 21 of the Constitution. It also further stated that the right of privacy though regarded as a fundamental right is not an absolute right and is “subject to reasonable restrictions”^[12].

Conclusion

In Yusufali Esmail Nagree vs. the State of Maharashtra, R. M. Malkani vs. State of Maharashtra and State (NCT of Delhi) vs. Navjot Sandhu, the courts have made recorded phone conversations as admissible evidence. But, it is pertinent to notice that all of these cases are criminal cases whereby the phone conversation was tapped by police and such power is granted to them under Section 5(2) of the Telegraph Act.

The act of taping conversations in such cases is absolutely justified as the offence being committed is against the state and the power is exercised for the sole purpose of public safety, which in turn, is also in compliance with principles laid down in Anuradha Bhasin vs. UOI. While relying on the relevance of the evidence to the subject matter, R. M. Malkani also acknowledges invasion of privacy. It specifically mentions that an innocent citizen’s conversation will be safeguarded by law against false or manipulated intrusion by phone tapping.^[13]        

However, conversation recorded clandestinely, by a private person, in the regular course of affairs must not be held admissible in court. In State of Punjab vs. Baldev Singh^[14], it was held that courts mustn’t admit evidence in the cases where it is satisfied that the procurement of the evidence has been by conduct of which the prosecution should not take advantage, especially when prejudice is caused to the accused by such conduct. In the regular course, the act of recording phone conversation without intimation to such recording must be reckoned as misconduct as it directly infringes privacy.

In PUCL vs. UOI, the courts have expressly stated that admissibility depends on the facts of a particular case. Let us analyse a situation where there’s an altercation between two parties over the phone and they eventually end up in court; whereby, one of the parties to the suit has recorded the telephonic conversation and presented it to the court to be considered as evidence.

The conversation so recorded may at that particular time be influenced by various factors including unawareness or misinformation with respect to some aspect of the subject matter, temperament of the parties, situations around, etcetera. If such conversation is made admissible in the court there is a high probability that it might lead to a prevaricate conclusion.

In the United States, admissibility of illegally procured evidence is governed by the doctrine of ‘fruits of a poisoned tree’. The doctrine states that if the evidence in the matter is obtained by illegal means (“tree”) the evidence (“fruit”) itself is illegal and inadmissible. The implementation of this doctrine in India, subject to relevant exceptions, will be a progressive step in securing privacy of the citizens as well as promoting correct methods for the collection of evidence.

While it is settled that the right of privacy is a fundamental right; and that fundamental rights are part of basic structure doctrine and supersede every other right in the country, it is contended that it is not an absolute right and is subject to reasonable restrictions. The reasonable restrictions can be imposed on the right to privacy “in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”^[15] Only in these situations the right of privacy can be denied to a person.

Recording a telephonic conversation without intimating the person so speaking is an unprincipled act. It affects the inherent societal norms, personhood and welfare of the citizens. It infringes the right of privacy which is a fundamental right guaranteed under Article 21 of the Constitution.

References