Updated: Feb 22
Author: Umang Dudeja
IMS Unison Univ, Dehradun
Phone tapping refers to the surveillance and monitoring by a third party of Internet-based communications and telephones by confidential 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 is broadly accepted as a necessary evil.
There has been a lot of technical development in recent years. While technology's advantages cannot be ignored, it also has a negative impact. Because of technological change, the world has shrunk a tonne. We can connect to people who are a thousand kilometres away with a mail or call or email. This also raises the question of protection. In the name of national safety, there has been increasing use of telephone calls, texts and e-mails by the government. The concern here is that this is not an infringement of a person's right to privacy.
With these events growing, legislation and a legislative structure on the subject are extremely necessary. The legislature should come up with legislation that states to what extent telephone tapping or deactivation is permitted. It is also critical that the judiciary creates certain rules for the use of this information as evidence.
Article 21 of our Constitution lay down that no person shall be deprived of his life and personal liberty except according to the procedure which has been laid down by the law. The word "personal liberty" also includes the right to privacy within its scope. Although this is not mentioned expressly, the right to privacy is an implied right guaranteed by the Constitution of India.
PHONE TAPPING LAWS IN INDIA
'Right to Privacy' is not absolute and is subject to the procedure established by law. Thereby, section 5 of the Telegraph Act,1885 permits telephone tapping and authorise 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,1885.
In India, telephone tapping may only be carried out in an authorised manner with the permission of the department concerned. However, if it is carried out unlawfully, it is illegal and would result in the prosecution of the individual responsible for the violation of privacy.
Telephones are referred to under Entry 31 of an Indian Constitution Union List and are based on Entry 7 in the Federal List of the Indian Act 1935 of the Government.
Both the Central Government and the Governments of the State have the right to intercept telephones under Section 5(2) of the Indian Telegraphic Act, 1885. There are times where the investigative authority/agency wants to document the telephone calls of the accused individual. Such authorities are expected to obtain permission from the Home Ministry before proceeding with such an act. Relevant reasons must be given in the authorisation request. Also, the need for telephone interception must be illustrated. Only the Ministry will accept the application and grant permission after estimating the merits of the interception application.
In the judgment of the Hon'ble Supreme Court in People's Union for Civil Liberties v. Union of India AIR 1997 SC 568, wherein it was held that right to privacy was a part of the right to life and personal liberty enshrined under Article 21 of the Constitution and once a fact is established as a case constituting a right to privacy, Article 21 would be attracted and the said right cannot be curtailed, except according to the procedure established by law.
MEASURES AGAINST PHONE TAPPING
1. Procedural safeguard: Over the past couple of years, there have been many controversies involving telephone tapping. This problem was twisted into a political agenda, so focused. The opposition and the ruling party began to blame each other. The government confiscated telephones under the control of the ruling party. It was alleged. The PUCL had submitted a PIL before the Supreme Court of India to seek clarity of law on an electronic interception and tapping point. The PIL had been submitted by the PUCL. They contended that there should be control of the arbitrary authority given by Article 5(2) of the Indian Telegraphic Act, 1885. They also argued that the 1971 amendment to Section 5(2) was highly treacherous because it permitted the interception in times of emergency and for public order and security, as well as for the upheaval of crimes.
2. Substantive safeguard: While the Court did not consider Section 5(2) unconstitutional, it also noted the lack of procedural protections in respect of the substantive provisions. The Court stated that supporting substantive law with some procedural laws was very necessary. The Court held that if a sound procedure is made the substantive provisions. There are also significant provisions available in the Telegraph Act. Section 25 of the Act states that if someone tries to intercept or make him aware of any communication or tampers that are misleading based on that purpose, he or she shall be sentenced to jail for up to three years or a fine or both.
In the case of Rayala M. Bhuvaneswari vs Nagaphanender Rayala AIR 2008 AP 98  the Hon'ble High Court of Andhra Pradesh held that the act of tapping itself by the husband of the conversation of his wife with others was illegal and it infringed the right of privacy of the wife. In this case, the husband was recording the conversations of his wife. The consent of the parties to the conversation was not there.
WHEN IS TAPPING BY THE GOVERNMENT LEGAL OR ILLEGAL
This was laid down by the Supreme Court in 1996 (PUCL v. Union of India). In the decision to have telephone conservation right in the privacy of your home or office, the Supreme Court observed that Article 5(2) does not grant unguided and unbridled powers on investigative agencies to invade a private individual except by the procedure defined by law The Court has created safeguards:
· Tapping of telephones is forbidden without an authorising order from the Home Secretary of the Union government or of the state government concerned.
· The order unless is valid for two months; if renewed, it cannot continue in effect beyond six months.
· Communications phone tapping or intercepting shall be limited to the address(s) of the order or address(s) that is likely to be used by a person specified in the order.
· All copies of the intercepted material shall be destroyed once its retention per Section 5 is not necessary (2).
The right to privacy is a part of the personal liberty provided for in Article 21 of the Indian Constitution. An individual also has the right to protect his or her privacy. There are several cases in which the government has to act in breach of a person's human rights. One of them is the interception of the phone. This is a very significant measure taken by the government and to intercept the telephone of a person, there are fair reasons for taking such a step since it affects the privacy of others.
Telephone surveillance is not a breach of the right to privacy only if it is for the good of the public or in the event of an emergency, as stated in section 5(2) of the Telegraph Act,1885. In any event, interception of the telephone cannot be carried out except in the two situations referred to above. Any information obtained through telephone surveillance is also not a breach of the right to privacy and is also deemed to be admissible evidence. Interception of phones without government authorisation is a breach of an individual's right to privacy since a person can speak about his issues, child education, health, etc., which he does not want to discuss with someone else. The powers bestowed on the authorities to intercept the telephone are not absolute. There are some reasonable restrictions attached to it. The telephone of an individual cannot tape unless and until reasonable grounds are shown to do such activities as no person shall be deprived of its personal liberty. Hence, phone taping is not in violation of the right to privacy unless and until it is done for the interest of public or in a case of emergency.
 https://www.livelaw.in/know-the-law/the-law-on-phone-tapping-in-india-163933  https://blog.ipleaders.in/law-phone-tapping-india/  https://indiankanoon.org/doc/31276692/  https://indiankanoon.org/doc/1058685/