Evidentiary value of phone tapping in India BY AKSHIT GUPTA @LEXCLIQ

Communication monitoring is universally regarded as a necessary evil that any human civilization must provide for state protection as well as crime prevention and investigation. Human rights and personal liberties must, however be balanced against the state sponsored surveillance. As well all known technology has evolved into an integral part of human existence, progressing in every way in response to society needs but no one ever considered the implications of this technical development, which leads to phone tapping practices. It may also result in an individual’s right to privacy being violated. Currently there is no formal regulatory data security regime that will regulate the secret recording of a phone call. The legislation governing cases like secretly filming a phone call is often not clear or thoroughly checked by judicial interpretation. 

The question whether interception of telephone tapping of conversation constitutes a serious invasion of an individual right to privacy was considered by the Apex Court and in its ruling agreed and stated that “wiretaps are a serious invasion of an individual’s privacy” 

The process related to the right to privacy began in Kharak Singh v. State of U.P., where the court discussed the relationship between surveillance and personal and found that unauthorized intrusion into a person’s home would interfere with his/her right to personal liberty. 

Which means intruders doesn’t matter for the sake of taking evidence can’t invoke the privacy clause mentioned under article 21 of constitution of India unless permitted by the court of law and that it would also violate the right to freedom of speech and expression under Article 19 unless it came within the restrictions permitted by Article19(2). 

The right to privacy here was conceived around the home, and unauthorized intrusions into homes were seen as interference with the right to personal liberty. The court recognized “the right to the people to be secure in their persons, houses, papers, and effects” and declared that their right against unreasonable searches and seizures was not to be violated 

 Later on, its recognition by the Court expanded the right to privacy beyond the physical realm. The PUCL Court further evolved the notion of privacy to include personal communications, holding that “the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as ‘right to privacy’ 

Most specific to communication surveillance are the safeguards resulting from People’s Union for Civil Liberties (PUCL) v. Union of India. In this case, the Indian Supreme Court declared that “the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as ‘right to privacy’, a telephone conversation is an important facet of a man’s private life” 

Further, the Supreme Court clarified that even where the law clearly defines the situations in which interception may take place, this law must have procedural backing to ensure that the exercise of power is just and reasonable. 

“Article 21 contemplates procedure established by law with regard to deprivation of life or personal liberty. The telephonic conversation of an innocent citizen will be protected by Courts against wrongful or highhanded interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. It must not be understood that the Courts will tolerate safeguards for the protection of the citizen to be imperiled by permitting the police to proceed by unlawful or irregular methods. In the present case, there is no unlawful or even irregular method in obtaining the tape- recording of the conversation.” 


In the current time, India does have sufficient legislation which regulates the interception of communication. The overall outcome of the article is that communications surveillance constitutes an important component in maintaining the sovereignty, integrity, and security of the state and if ordered according to a prescribed procedure then it is not unconstitutional. 

Many judgments came up regarding legality of phone tapping in India and they all held that it can be carried out in accordance with the proper guidelines and procedure stated in PUCL case, Telegraph Act, 1885 and most importantly Information Technology Acct, 2000 while interception. 

For now, the Indian public has gradually become aware of possible privacy violations that could be caused by technology and they know for prevention and investigation of crimes or in maintaining the sovereignty, integrity, and security of the state or if such information discloses clues and evidence of a crime or scandal, they have to be pursued. 

If an interception is done by using unauthorized ways, then it will definitely defy right to privacy, it needs to be done only in such situations where guilt is sure and the matter is related to the public interest, sovereignty and security. So, it is not illegal, the proper procedure needs to be followed. Lastly, IT act is available for the protection of our privacy


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