(Atul Selare and Avinash Kumar Yadav are third-year students at National Law University, Delhi)
Featured Art: ‘The Telephone’ by Tamara de Lempicka
In what came as a landmark judgement, the Supreme Court of India in the case of Justice K.S.Puttaswamy(Retd) vs Union Of India held that the Right to privacy is a fundamental right enshrined under Article 21. As society progresses, the world is moving towards modernization, making people interconnected with each other through various communication sources and platforms. Due to electronic developments over time, the privacy of individuals has become a cause of concern considering several cases of its misuse. One such frequently observed case is that of Phone tapping, also known as wire-tapping or line bugging, which involves interception of the telephonic conversation through wiretapping. Such information contained in the electronic media must remain confidential as it includes data containing office conversations, private talks, and might be confidential. Hence, this can be considered to be a gross violation of the fundamental right to privacy as it contains personal data and information which that person in the ordinary course of behaviour might not be willing to share or disclose.
India is a party to International Covenant on Civil and Political Rights (ICCPR). Article 17 of which states, “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.” This right is enshrined under Article 21 of the Indian Constitution which states, ” No person shall be deprived of his life or personal liberty except according to the procedure established by law”. In India Section 5(2) of Indian Telegraph Act gives power to the central government or State government or any officer authorized by the central or state government to intercept phone calls only in case of public emergency or in the interest of public safety. The discussion around the Validity of Phone tapping revolves around these key provisions and the Indian courts have interpreted these in several landmark cases.
In the year 1996, Considering an increase in the number of Phone tapping cases, a human rights body People’s Union Of Civil Liberties filed a PIL in the Supreme Court against the electronic and telephonic interception law in India. Their main contention was, Section 5(2) of the Indian Telegraph Act provides arbitrary power and it should be regulated. The two major highlights of this judgment are reflections on the existence of a right to privacy in Indian law and the Court’s detailed guidelines for the exercise of the executive’s surveillance powers, as a temporary solution to the rampant misuse of such powers that had been observed in the case. The influence of these guidelines not only is limited to the surveillance laws but has also had a significant impact on provisions like subsection (1) of section 69 contained in the Information Technology Act, 2000. To curb the arbitrary use of power given under Section 5(2) and to protect and safeguard the right to privacy of the individuals SC laid down the procedural safeguards and also directed for constitution of a review committee which on its own, investigates, whether the order violates the provision contained in Section 5(2) of Indian Telegraph Act. Hence the court observed that telephonic conversations are a part of life and are intimate and confidential. Owing to these observations it can be argued that this practice is violative of the Right to privacy.
Apart from the validity of such state surveillance mechanisms, it is also very pertinent to discuss the evidentiary value of evidence so obtained through these procedures. Section 5(2) of the Telegraph act says that such evidence can be considered to be valid evidence. The Supreme court in the case of R.M. Malkani v State of Maharashtra held that a tape recorder without the consent of the party can be considered to be admissible evidence. The court however also added that to be considered as a piece of admissible evidence the voice must be clear and can be identified properly. Hence, allowing illegally obtained evidence. However, this judgment is very disappointing because it allows the police to obtain illegal evidence and the court also admitted the illegally obtained evidence. The court also did not consider the fact that whether the person would say this if he knew he had been recorded. This judgment reflects that the court was not concerned about procedural protection but more concerned about the conviction of the accused person. Since illegally obtained evidence violates the right to privacy of the individual it can be argued that such a piece of evidence should not be admissible in the court.
In the case of Partap Singh and Ors v Director of Enforcement, Foreign Exchange Regulation Act and Ors, the court held that whether the method of obtaining evidence is legal or illegal is immaterial when it is the position of the law that illegality of the search does not vitiate the evidence collected. Under this, the evidence obtained even by tricks or misrepresentation is admissible in the court. Hence, it can be argued that the rule of law applicable under the common law system should be considered while testing the validity of the illegally obtained evidence. The doctrine of “fruits of the poisonous tree”, propounded by Justice Frankfurter in the case of Nardone v. The United States, relied upon by the court to conclude to exclude such evidence, is not applicable in the legal system of India. This doctrine forms a part of the ‘Exclusionary Rule’ applicable in the United States of America. The exclusionary rule is enshrined in the fourth amendment of the American Constitution. However, India follows a common law system and a system of trial by a judge, not a jury and hence, it can be observed that due to these structural differences U.S. laws will not apply to disputes arising in India. Hence now it is the need of the hour to move towards the exclusionary rule which prevents the illegally obtained evidence to be admissible in the court as it violates the fundamental rights of the accused.
After the landmark judgment in the case of Justice K.S.Puttaswamy(Retd) vs Union Of India, Indian courts have started paying desired attention to the right to privacy and have focussed on the PUCL guidelines making hope for a decreased number of such cases in future. This can be observed in the case of Vinit Kumar vs Central Bureau Of Investigation which proved to be a landmark judgement on this issue. The court here reiterated the guidelines laid down in the PUCL case i.e. phone tapping can only be allowed in case of public emergency or interest of public safety. The court also relied upon the “principle of proportionality and legitimacy” test and said that the test was to check whether it threatened the public safety of the state.
It can be inferred that to stop or to put a break in arbitrary use of the power of phone tapping and unauthorized surveillance by the authorities which targets any specific person for their political or economical agenda without reasonable grounds or contravene to the procedure established by the law, the case of Vinit Kumar plays a very important role and is also very effective in the upcoming future concerning the protection of our fundamental right to privacy enshrined under Article 21 of the Indian Constitution. There is no law relating to phone tapping or electronic surveillance in India and also no remedy available to the person who is affected by any misuse of electronic gadgets like a hidden camera or voice recorder. Also, the IT Act 2000 does not touch the matter related to the violation of the right to privacy through electronic devices. Therefore it is the need of the hour to revamp this position and there is a strong need for judgments like the Vinit Kumar Judgment to elaborate on how the right to privacy related to phone tapping will operate in a given fact situation.
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