Law of Phone Tapping and Admissibility of Tape Recorded Conversations under Evidence Law in India.
Has Privacy become history? The abrupt number of trials in the court wherein a telephone recording is desired to be used by either of the parties as a shred of evidence advises that private thoughts are not private anymore. Use of aforementioned recordings in court cases has accelerated enormously in the recent past.
There is no particular statutory regime for data protection in our country presently which would take control of the clandestine recording of a phone call. In light of lack of such gaping legislatives, the law relevant for situations such as recording of a phone call without knowledge is often not direct, or fully tested by judicial interpretation. This is particularly true in the case of such recording being conducted by a private person as opposed to recording/tapping/interception by a governmental authority or any other agency of the State.
THE INDIAN TELEGRAPH ACT, 1885
In absentia of any particular law governing the issue, the law most commonly practised in such cases is a dinosaur of law – The Indian Telegraph Act that was passed way back in 1885 (hereinafter, "Telegraph Act"). Section 25 of this Act marks the offence of damaging or tampering with a telegraph as a criminal offence. The offence involves the act of altering a telegraph or the working of a telegraph with an intention of intercepting or acquainting with the contents of any message.
However, authoritative examples reveal that this section has mostly been pressed into service only for the prosecution of third parties intercepting a call, and not the parties to the conversation. The tenor of the section also appears to suggest that criminality is attachable only to a third party, that somehow breaks into the conversation. The phrase 'Interception' / 'Acquainting yourself with the contents of a message' doesn't seem to capture the situation of a person who is recording his/her own telephone conversation with another person. A call cannot be said to have 'intercepted' his own conversation, or damaged or tampered a device with a view 'to accustom himself with the contents of (his own) message/conversation' if in case, a person is recording his/her own conversation with someone. Therefore, simply putting things together, an act of secretly recording one's own conversation with someone does not appear to be culpable under this section. This is further hammered-in by the principle of strict construction which directs that a penal statute has to be deduced strictly, and only if an act clearly as well as squarely falls within the definition of a penal section – should criminality be attracted to it. Therefore, on an overall analysis, it does not appear that a party recording its own conversation may fall within this section. Having said that, there is no direct judicial decision on this point, and this is a position of law that remains to be tested. It cannot be commented with certainty at this stage how the courts may interpret it. However, the courts are not likely to hold such an act criminal under the present legislative scheme of things.
The leading decision on Section 25 of the Telegraph Act is one rendered by the Supreme Court of India way back in 1972, wherein the petitioner had been condemned by the lower courts for corrupt practices, on the basis of testimony that comprised of a telephone conversation recorded on tape. A challenge was made to the conviction inter alia on the ground that the police, by recording the telephone conversation, had contravened Section 25 of the Telegraph Act. The Supreme Court turned down this conflict based on the fact that this was a case where a person who was allegedly being extorted over the telephone, had allowed the police to listen-in to the conversation and record the same. It was not a case of someone breaking into the conversation to acquaint themselves with the conversation.
In absentia of any such fact, this was held not to be a criminal offence on the part of the policemen who tapped the conversation. Though the decision is old, and Section 25 is most often used for the prosecution of theft, or illegal utilization of telephonic lines, data circuits, etc., there have been cases in the recent past where the provision has been attracted in the context of criminal prosecution against non-consensual/unauthorized tapping of phone calls by third parties. There is hardly any prosecutions initiated under Section 25 against a party to a conversation for recording it clandestinely. The above prosecutions have been initiated with respect to a third party recording a conversation without knowledge/consent of the parties to the conversation.
WAY FORWARD: THE NEW DATA PROTECTION LEGISLATION The Draft Personal Data Protection Bill, 2018 (hereinafter, "DPP Bill") which has been keenly anticipated by all for its repercussions on data privacy, has been introduced. The decision in Puttaswamy laid much of the groundwork for privacy legislation in India. India's push to build a sturdy data privacy regime is at a critical juncture now with the coming of the DPP Bill.
It is hoped that future modifications to the DPP Bill would bring in clarity on the legality/criminality associated with the recording of telephone calls. A possible guideline could be the 'one party consent' rule followed by the federal law of the United States, which permits recording of a phone conversation if one party to the conversation (including the recording party) consents