The recent times have exposed the diabolic methods used by government agencies all over the world for the greater good of national security. Deployment of such techniques is invasive of the fundamental right to privacy that citizens are entitled to. In a democracy such as India, in the light of the recent controversies such as the Nira Radia case as well as the Rupert Murdoch case, it has become imperative for the Courts to develop a legal framework on the extent to which phone-tapping can be allowed and the purposes for which it is conducted.  More importantly, it is crucial for the Courts to lay down rules and regulations pertaining to their admissibility as evidence.

INTRODUCTION

Art.21 of the Indian Constitution says that “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

The expression ‘personal liberty’ includes ‘right to privacy’. A citizen has a right to safeguard his personal privacy, plus, that of his family, education, marriage, motherhood, child bearing, and procreation, among other matters.

Phone tapping means secretly listening or / recording a communication in telephone in order to get information about others activities. It is also known as ‘wire-tapping’ in some countries (primarily in USA).[i] Phone Tapping can only be done in an authorized manner with permission from the department concerned. However, if it is undertaken in an unauthorized manner then it is illegal and will result in prosecution of the person responsible for breach of privacy.

PROCEDURE FOR PHONE-TAPPING IN INDIA

Telephones along with other communication devices find mention under Entry 31 of the Constitution’s Union List and is based on Entry 7 in the Federal List of the Government of India Act 1935.[ii] As Seervai[iii] has explained, the G.I. Act itself had taken the note of the progress of Science in Entry 7, List I, which ran as “Posts and telegraphs; telephones, wireless, broadcasting and other like forms of communication” and Entry 31[iv], List I of our Constitution retained the entry, hence the need to interpret the word ‘telegraphs’ flexibly to include telephones, wireless, broadcasting etc. did not arise.[v]

Both, the Central and the State Governments have a right to tap phones under Section 5(2) of Indian Telegraphic Act, 1885. There are times when an investigating authority/agency needs to record the phone conversations of the person who is under suspicion.[vi] Such authorities are supposed to seek permission from the Home Ministry before going ahead with such an act. In the application specific reasons have to be mentioned. In addition, the need for phone tapping must be proved. Then the ministry considers the request and grants permission upon evaluating the merits of the request.

Every agency fills out an authorization slip before placing a phone under surveillance. For the States, it is the State Home Secretary who signs this. Telephones of politicians cannot be tapped officially[vii]-a qualifier on the slip says the surveyed person is not an elected representative. Today, every cellular service provider has an aggregation station which is a clutch of servers called mediation servers (because they mediate between the cellular operators and the law enforcement agencies) to intercept phones. There are two kinds of interception facilities available today-Integrated Services Digital Network (ISDN) and the leased line. In ISDN facility, a mediation server intercepts a call and then transmits it through a Primary Rate Interface (PRI) line to the office of a government agency. Also, the police can listen to the phone on their PRI line and store the recording to attached computers. A sound file of the intercepted call is also recorded and stored in the mediation server, simultaneously.

SAFEGUARDS AGAINST PHONE-TAPPING

Procedural Safeguards

By the 1990’s scandal after scandal erupted in India and several had to do with what people perceived as the illegal tapping of their phones. The Opposition parties had alleged that their phones were tapped by Government machinery at the behest of the ruling party. Hence, this resulted in the Peoples Union for Civil Liberties [PUCL] appealing to the Supreme Court to clarify the law regarding electronic tapping in India. In the case, the Petitioner’s primary contention was that sufficient procedural safeguards to rule out the arbitrary exercise of power under the Act should be read in to Section 5(2). Thus, although Section 7(2)(b) of the Telegraph Act,1971 empowers the Government to prescribe rules providing for ‘the precautions to be taken for preventing the improper interception or disclosure of messages’, till then no such rules had been framed by the Government. Further, the Petitioner NGO also alleged that the amendment made to Section 5(2) of the Telegraph Act in 1971 was devastating as it permitted phone tapping not just for public safety, public emergencies, public order and the sovereignty and integrity of India, but also the incitement of offences.

In this high profile case, the highest Court in the land ruled that wiretaps constituted a “serious invasion of an individual’s privacy“. Further, the Supreme Court recognized the fact that the right of privacy is an integral part of the fundamental right to life enshrined under Article 21 of the Constitution. This right can also be traced to Article 17 of the International Covenant on Civil and Political Rights [ICCPR] to which India is a signatory. But, the right is only available and enforceable against the state and not against action by private entities. If, a person is talking on the telephone, he is exercising his or her right to freedom of speech and expression. Thus, telephone tapping would also infringe Art 19(1)(a) unless it came within the restrictions on this right set out in Art 19(2). It is significant to note that the Supreme Court while not wanting to strike down the system of phone tapping altogether, wanted to soften the law by introducing guidelines that were to be followed by the government. These guidelines define who can tap phones and under what circumstances. The Union Home Secretary, or his counterpart in the states, can only issue an order for a tap. Further, the government is also required to show that the information sought cannot to be obtained through any other means. Also, the Court mandated the development of a high-level committee to review the legality of each wiretap. But the decision to set up a ‘review’ system was severely criticized. Prominent lawyers dismissed it as “enabling those who authorize taps to review their own orders with a conclave of colleagues…being arbitrary, secretive, and shabby and an insult to the protection of privacy and civil liberties”.

Pursuant to the procedural safeguards formulated by the Supreme Court in the P.U.C.L case, the Central Government brought out an amendment to the Indian Telegraph Rules, 1951 ,by inserting Rule 419-A vide G.S.R. 123 (E), dated 16.02.1999. The amendment to Indian Telegraph Rules, 1951 also failed to remove unguided interception of messages as the decision taking authority still remained with the executive branch of the Indian Constitution.

Overall, it appears that the Court has done a decent job and has at least laid the groundwork for a regulatory system. It is an accepted fact that every arbitrary and seemingly intrusive law can be effectively softened with a foolproof mechanism to ensure its proper and legal implementation. But, given the fact that Indian laws suffer from the problem of a significant implementation deficit; only time will tell whether these guidelines are honored or not.

 Substantive safeguards

In 1997, the Supreme Court, in response to a petition filed by Justice Sachar in the PUCL case, laid down that Right to Privacy guaranteed under Article 21 is subject to reasonable restrictions which might be imposed by the State. Reasonable restrictions can be imposed by the state in -the interests of national sovereignty and integrity, state security, friendly relations with foreign states, public order or for preventing incitement to the commission of an offence.

Supreme Court while upholding the constitutionality of Section 5(2) in P.U.C.L. case, recognized the absence of procedural safeguards for the substantive provisions of the above mentioned Section and placed reliance on Maneka Gandhi case to stress upon the importance of procedural backing to any substantive provision dealing with the fundamental right of individual, where it was opined: “Procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself.” Thus, the requirement of procedural safeguards for the provisions of Section 5(2) becomes significant in the light of ‘right to privacy’ guaranteed by Article 21, Constitution of India, 1950. Interception of private conversation, void of just and fair procedure, would infringe an individual’s right to privacy assured under Article 21, which might render the substantive provision, allowing interception, as unconstitutional.

Justice Kuldip Singh succinctly stated[viii]:

“The first step under Section 5(2) of the Act, therefore, is the occurrence of any public emergency or the existence of a public-safety interest. Thereafter the competent authority under Section 5(2) of the Act is empowered to pass an order of interception after recording its satisfaction that it is necessary or expedient so to do in the interest of (i) sovereignty and integrity of India, (ii) the security of the State, (iii) friendly relations with foreign States, (iv) public order or (v) for preventing incitement to the commission of an offence.”[ix]

In K.L.D Nagasree v. Government of India[x], while reiterating the view of the Court in P.U.C.L. case, it was held:

“A bare reading of the above provision shows that for the purpose of making an order for interception of messages in exercise of powers under Sub-Section (1) or Sub-Section (2) of Section 5 of the Telegraph Act, 1885, the occurrence of any pubic emergency or the existence of a public safety interest is the sine qua non.”

The Act also provides safeguards against illegal and unwarranted interference in the telegraph and telephone mechanisms. Accordingly, Section 25 states that, “any person intending to intercept or to acquaint himself with the contents of any message damages, remove, tampers, with or touches any battery, machinery, telegraph line, post or other thing whatever, being part of or used in the working thereof shall be punished with imprisonment for a term which may extend to three years or with a fine, or both.”

Recourse

  • Unauthorized tapping is in violation of the right to privacy and the aggrieved person can file a complaint in the Human Rights Commission.
  • An FIR can be lodged in the nearest Police Station when unauthorized phone tapping comes into the knowledge of the person.
  • Additionally, the aggrieved person can move the Court against the person/company doing the Act in an unauthorized manner under Section 26 (b) of the Indian Telegraphic Act which provides for 3 year imprisonment for persons held for tapping. The person (s) can also be prosecuted for authorized tapping but sharing of the data in an authorized manner.

ADMISSIBILITY OF TAPED CONVERSATIONS AS EVIDENCE

Controversial Judgment in the Malkani Case

The case of R.M. Malkani v. State of Maharashtra[xi] revolved around the question of whether criminal prosecution could be initiated against a person on the basis of certain incriminating portions of a telephone conversation that he had with another individual. In the case, the Appellant was the Coroner of Mumbai and was trying to obtain illegal gratification of Rs. 15,000 from an honest doctor from whom he planned to implicate in a case involving the negligent death of a patient. This doctor was not interested in paying the bribe and instead contacted the Anti-Corruption Bureau of the Police. The doctor then, on the directions of the police officials, proceeded to have a phone conversation with the Appellant where they discussed the amount of money to be paid, and also the place of delivery, etc. This conversation was recorded without the knowledge of Malkani and charges were filed against him on the basis of the incriminating statements that he had made.

The Supreme Court held that having another person listening in on a conversation was a mechanical process and that there was no element of compulsion or coercion involved which would have otherwise violated the Act. With regards to the admissibility issue, the Court appreciated the method, terming it a mechanical eavesdropping device”. However, then perhaps realizing that it was wrong, it hastily added that -it should be used sparingly, under proper direction and with circumspection. The tape-recorded evidence was compared with a photograph of a relevant incident and based on this assumption it was decided that Sections 7 and 8 of the Evidence Act [1872] would not bar the admission of improperly obtained evidence. Hence, what the Apex Court did was to hold that illegally obtained evidence would be admitted in Court since the eavesdropper neither subjects the person to duress nor interferes with his privacy. While giving the verdict, Ray, J., was influenced by the American case law on the subject. Reliance was placed on the judgment of the US Supreme Court in the case of Roy Olmstead v. United States of America[xii], which had by then been overruled by the Berger and Katz cases. In the Olmstead case the doctrine adopted, was that surveillance without trespass and without the seizure of any material fell outside the constitutional ambit. Hence, Ray, J. was of the opinion that the tape recording of the conversation would not be repugnant to Articles 20(3) and 21 of the Indian Constitution.

Following the dictum laid down in the Malkani case many judgments have been passed by the Courts accepting illegally obtained evidence for the purposes of conviction. In the case of S. Pratap Singh v. State of Punjab[xiii], the Supreme Court allowed the tape record of a telephonic conversation between the Chief Minister’s wife and a doctor to be admitted as evidence to corroborate the evidence of witnesses who had stated that such a conversation had taken place. Further, in Yusufalli Esmail Nagree v. State of Maharashtra[xiv], a conversation that was recorded by means of a tape recorder placed in a room was admitted in evidence. In the case, the Appellant Nagree had offered a bribe to a municipal clerk Munir Ahmed Sheikh. The clerk Sheikh informed the police who then laid a trap at his residence by concealing a voice recording apparatus in the room where the bribe amount was to be paid. Then, this tape was allowed as evidence by the Court to corroborate the Sheikh’s testimony. The Court noted that if a photograph taken without the knowledge of the person being photographed, applying the same principle to the case of a tape-record of a conversation that is unnoticed by the talkers, will also become relevant and admissible. The Apex Court in delivering the judgment was heavily influenced by the decision of an English Court in the case of R v. Maqsud Ali[xv]. In that case two persons suspected of murder went voluntarily with the Police Officers into a room where unknown to them, there was a microphone connected with a tape recorder in another room. Thereafter, when they were left alone, the accused persons had a conversation during which some incriminating remarks were made. The Court decided that the tape-recording of the incriminating evidence had to be admitted as evidence. In N. Sri Rama Reddy v. V.V.Giri[xvi], better known as the ‘Presidential Election case’ the Petitioner had alleged that a certain Jagat Narain had tried to dissuade him from contesting the election. Then, their tape-recorded telephone conversation was then produced in Court to disprove Narain’s claims that the incident never took place. Here the Court utilized the conversation to show that a “witness might be contradicted when he denies any question tending to impeach his impartiality” [Section 153 of the Indian Evidence Act] and thus observed that the tape itself would become the primary and direct evidence.

The problem is that while this may represent the easy way out for the police, these short cuts imperil the liberties of the citizens. Further, no respect has been attached to the means by which the end could be achieved.. Sadly the safeguards suggested were wholly inadequate and could not compensate for the fact that mechanical eavesdropping had been freed from all constitutional restraint. This development is especially important when one takes into account the amendment of 1971 that granted the Government the license to tap any phone conversation it wished without being made accountable or answerable to anybody. Safeguards in the form of guidelines were only framed two decades later when a voluntary organization took the initiative and approached the Supreme Court for assistance.[xvii]

NEW FACETS OF PHONE-TAPPING IN INDIA

In Rayala M. Bhuvaneswari v. Nagaphamender Rayala[xviii], the Petitioner filed a divorce petition in the Court against his wife and to substantiate his case sought to produce a hard disc relating to the conversation of his wife recorded in U.S. with others. The wife denied some portions of the conversations. The Court observed that the purity of the relation between husband and wife is the basis of marriage, and the husband was recording her conversation on telephone with her friends and parents in India without her knowledge. Hence, this is clear infringement of right to privacy of the wife, where a husband is of such a nature and has no faith in her wife, even regarding her conversation with her parents. In such circumstances, the institution of marriage itself becomes redundant. Also, there should be an element of trust between a marital relationship and in any case the right of privacy of the wife is infringed by her husband by recording her conversation on telephone to others. Such a husband who has resorted to illegal means which are not only unconstitutional but also immoral, cannot later on, try to rely on the evidence gathered by him by such means.

Later on,  the Radia tapes controversy related to the taped conversations of politicians, industrialists and corporate, bureaucrats, officials, journalists and aides, that were taped by the Indian Income Tax Department in 2008–09. These tapes led to government and public accusation that these calls evidence the planning of the 2G spectrum scam and other criminal and unconstitutional activities.

COMPARISONS WITH OTHER JURISDICTIONS

The British Perspective

English law has evolved considerably since the blanket endorsement of any and all methods to obtain evidence-a method propounded in the Leatham case, even though one might be inclined to disbelieve this statement in the light of an observation in R v Sang[xix], where it was stated that there was “no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The Court is not concerned with how it was obtained. For the moment, this statement must be placed in the background, in order be state that as the law stands now it is not illegal for the police to bug someone’s phone but it is forbidden to use the information gleaned in a Court of law.”

The law concerning admissibility of stolen evidence in England is a lot more flexible, as opposed to India. A notable factor of significance in determining whether tapping may be appropriate is the seriousness of the offence being investigated. When a serious crime is committed coupled with significant breach of the code, evidence obtained is admissible. In R v Khan[xx] , evidence was deemed admissible with the Court acknowledging that the seriousness of the crime being investigated was of importance and was seen to outweigh the improper conduct of the police. Further, in that case trespass to property, breach of privacy and also damage to such; along with the usage of listening devices in private premises were found in the conduct of the police. Hence, the value of evidence that the police anticipate discovering through improper conduct may be of significance in justifying a decision to so act. Lord Steyn, an English Judge, acknowledged that while no Court will approve readily “of trickery and deception being used, there are some circumstances in which one has to recognize, living in the real world that this is the only way in which some people are ever going to be brought to trial”.  Additionally, there is no consensus as to what should be admissible in evidence and what should not though as recent cases reveal there seems to be a growing tendency to move away from the exclusionary principle, in favor of admitting tape-recorded evidence in a Court of law.

Prior to the Regulation of Investigatory Powers Act [RIP] 2000, interception of communications in the UK was governed by the Interception of Communications Act 1985 (IOCA). This Act (IOCA), put in place a statutory framework for interception of communications in order to meet the criticisms leveled at the UK in 1984 by the European Court of Human Rights in the case of Malone v UK[xxi]. In this case the European Court of Human Rights noted that in the absence of a proper legislative framework in the UK the practice of telephonic interception was insufficiently grounded in law to allow it to be justified under Article 8(2) of the European Convention on Human Rights.

The RIP Act of 2000 repealed the prior legislation in this area (the Interception of Communications Act 1985). Section 2(2) of the RIP Act 2000 dealt with the intercepting of a communication in the course of its transmission by a telecommunication system. Additionally, there is control exerted by the Home Secretary over the granting of telephone intercept warrants to the Director General of Intelligence and Security. Such authorization is provided under an Interception Warrant which must name or describe either one person as the Interception Subject or a single set of premises where the interception is to take place. It must be noted that RIP Act establishes a Tribunal which can investigate on whether there was a warrant and whether it was properly issued. Thus, where it is found that an Interception Warrant has been improperly issued, the Tribunal has power to order compensation and the destruction of the recorded material. Additionally, if the interception takes place without a warrant, then the Director of Public Prosecution must consent to criminal prosecution. Hence, in the UK it is now an offence for any person intentionally and without lawful authority to intercept any communication in the course of its transmission through a public telecommunication system and – except in specified circumstances – through a private telecommunication system. Also, though private telephone tapping is an offence, it can be stated that the English law is now on par with the law in India (POTA) and that in the USA (PATRIOT Act).

United States of America

The United States of America has tended to favor the exclusionary rule of evidence but more attention has been given to the right to privacy enshrined in the American Constitution. The “exclusionary rule” states that evidence obtained by the Government in violation of a defendant’s constitutional rights may not be used by the prosecution in a criminal trial. This principle is based on the theory that it is a central function of the Courts to encourage lawful action by the State. Also, every State in the USA has its own laws that lay down procedures relating to telephone tapping. Additionally, at the Federal level the Crime Control and Safe Streets Act of 1968, has prohibited the willful interception of telephone communication by means of any mechanical, electronic, or other device without an applicable exemption. Furthermore, Federal statutes do not enjoy superiority over State laws unless the call or the tap crosses state lines . Thus, while the U.S. federal law only requires one-party consent, there are many states which have accepted different laws. 38 States in the USA have adopted the one-party notification system while the remaining 12 insist on the two-party notification method.

In the Olmstead case, the majority judgment was in favor of adjudicating the issue of telephone tapping outside of the domain of right to privacy and the Fourth Amendment. The judgment is notable because of the famous dissent expressed by Justice Brandeis who observed, “the right to be let alone- the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment”.  This was cited in 1967 when the Supreme Court in the Katz case declared that the protection of the Fourth Amendment would be extended to all recording of oral statements overheard, without any technical trespass under property law, i.e. using methods such as telephone tapping. In overruling the Olmstead judgment, the Court held that recording by police of conversation in public telephone booth was in violation of the Fourth Amendment because the speaker had a reasonable expectation of privacy in the booth. However, in the following decades, there were as many as 32 judgments that expressed consenting and dissenting opinions with Katz judgment. Recent case law in the USA confirms the fact that “A recorded conversation is generally admissible unless the unintelligible portions are so substantial that the recording as a whole is untrustworthy.” Also, Courts have relied on the exclusionary rule and have maintained that it promotes the respect for constitutional guarantee, by removing the incentive to disregard it. Although, English law appears to have accepted even taped conversations in foreign languages as evidence- in the R v. Maqsud[xxii] case [where the conversation recorded was in the Punjabi dialect]. But, the Courts in the US have appeared more reluctant to do the same. The attacks of September 11, 2001 and the events that followed necessitated the passing of a new law- the PATRIOT Act. This Act, like POTA in India, liberalized the telephone tapping procedures and aimed at making wiretapping an easier and less procedure-ridden operation. Additionally, it extended the authority of the Federal Bureau of Investigation [FBI] to spy on Americans for “intelligence” purposes. Under Section 218, the FBI was given the power to secretly conduct a physical search or wiretap , primarily to obtain evidence of crime without proving probable cause of crime. This provision goes against the spirit of the Fourth Amendment to the Constitution that requires the Government to prove to a judicial officer that it has probable cause of crime before it conducts an invasive search [like telephone tapping], for evidence of any crime.

Recently, the Obama administration has come under increased attack when it revealed that it had been keeping tabs on the phone records of millions of Americans for the past few years despite the justification that it was done in light of national security.

Position in Canada

Under S.186, Criminal Code, any investigative authority has to apply for a judicial authorization to intercept a private communication that is contingent on satisfaction of the Judge to whom such an application has been made. S.184, Criminal Code however, allows a police officer to proceed with interception of a private communication without a judicial authorization in exigent circumstances.

Judicial Outlook: Wiretapping

Investigative measures such as wiretapping have been dealt with strictly by the Canadian Supreme Court. To effectuate the restrictive approach, the Court curtailed the scope of the expression “other investigative procedures are unlikely to succeed” in S.186(1)(b), Criminal Code49 which authorized the police officers to wiretap on failure of other investigative procedures.

The British Columbia Supreme Court, in R. v. Araujo[xxiii] , held that “under S. 186(1)(b) of the Code, wiretapping may be accepted as an appropriate investigative tool where ‘other investigative procedures are unlikely to succeed’”. The Court laid down a few requirements:

“In order to meet the investigative necessity requirement, the applicant must establish in the affidavit that, practically speaking, there is no other reasonable alternative method of investigation, in the circumstances of the particular criminal inquiry.”

Henceforth, even in times of investigative necessity, the applicant needs to establish in the affidavit that there is no other investigative tool available besides wiretapping for the collection of evidence.[xxiv]

Wiretapping without Judicial Warrant is invalid

The Supreme Court of Canada in a recent judgment, has ruled that Section-184, Criminal Code54which authorizes the police officers to intercept a private telecommunication without a judicial warrant, is constitutionally invalid.

Judge Davies while declaring the provisions of S. 184 to be constitutionally invalid mooted the concept of ‘constitutional compliant implementation process’ for the consideration of the legislature to amend the specific provision. He held that the existence of exigent circumstances giving rise to a reasonable apprehension of serious harm will be properly balanced with the need of safeguarding individual’s right to privacy if the interception of communications is limited to very short periods by the ‘constitutionally compliant implementation process’, allowing judicial consideration of the situation at the earliest possible time.

The cardinal rule requires the investigating authorities to first intercept those private communications that may be lawfully intercepted pursuant to S. 184(c) and immediately apply to the Court for a warrant as there is no certainty as to how long the investigation may take and an individual’s privacy cannot be kept at stake for any unspecified period of time.

COMMON FINDINGS

 The significance of a judicial warrant to intercept private telephonic conversations of an individual has been emphasized in the judicial pronouncements of the American as well as the Canadian Courts. Even in the most compelling and demanding circumstances, the Court has been reluctant to discard the crucial qualification of a prior Court warrant for wiretapping. The Courts, while harmonizing laws related to national security and an individual’s privacy, have often held that the right of an individual to privacy cannot be put to risk due to uncertainty of the time period involved in such investigations.

CONCLUSION

The vast strides that have been made in the field of technology in the recent past have brought people closer like never before. So, as long as criminals and terrorists seek to misuse technology in pursuance of their evil motives, Governments all over the world will continue to use technology to invade our private spaces. Hence, this brings us to the question; does it take a thief to catch a thief? Then, should States imperil the liberty and the right to privacy of entire populations in order to apprehend a miniscule number of dangerous deviants? The Human Rights activists and liberal intellectuals believe that Privacy is too important a right to surrender to the State without a fight. The decision of the Supreme Court in the Malkani case was disappointing because it left the police free to steal evidence and the Court to admit the stolen evidence. It is useful to note that Justice Holmes suggested in 1928 in his dissent in the Olmstead case, that it is a less evil that some criminals should escape than that the Government should play an ignoble part. Permission for telephone tapping in the Malkani case was given without taking into consideration a regulatory mechanism that could serve the purpose of preventing the excesses that one normally associates with laws in our Country that give the Government wide powers.

There is also a growing body of opinion both in India and abroad that supports telephone tapping and describes it as a necessary evil. The emergence of terrorism on a global scale has made most nations enact tough anti-terror legislations like the PATRIOT Act in the USA and the Indian POTA (currently repealed). These laws curtail civil liberties greatly and their most important provisions deal with telephone tapping. Additionally, Governments feel that this is the most effective method to combat the menace of terrorism- by pre-empting any terrorist strikes by making proper use of the information obtained by the electronic eavesdropping procedures. The fact remains that everyone condemns telephone tapping but no one refrains from using it when needed. The above is particularly true in cases of politicians like Richard Nixon in the USA and Indian leaders like  Rajiv Gandhi, and Chandra Shekhar, who at some point or the other have been either the victims or the beneficiaries of telephone tapping.

Both sides to the argument have valid reasons for clinging on to their views on the subject. No one view has been accepted as the ‘correct’ one but the fact of the matter is that electronic eavesdropping is here to stay. Thus, the best that can be done is to evolve comprehensive regulatory mechanisms to soften the impact of the State’s intrusion into our private spaces. In addition, there is also an urgent need especially in India, to come up with guidelines focusing on the admissibility of different types of evidence in Courts of law. Plus, the new Central Monitoring System(CMS) has been made operational from April 2013.The CMS would further help empower Government agencies to tap phones without authorization. Hence, effective safeguards need to be evolved at once otherwise the Right to Privacy guaranteed under Article 21 of the Constitution is in serious jeopardy.

Edited by Raghavi Viswanath

[i] http://www.ssrn.com.Last Visited on:08.03.2013

[ii] See HM Seervai, Constitutional Law of India, vol 3, 4th edn, NM Tripathi, 1996, pg 2332.

[iii] ibid

[iv] Entry 31, Schedule VII, Constitution of India: Posts and telegraphs; telephones, wireless, broadcasting and other like forms of communication..

[v] Vikram Raghavan, Communications Law in India,1st Edn., 2007, pg 109

[vi] Pandey J.N, ,(Faridabad) Allahabad Law Agency,Ed:IX,2003, pg.no.207

[vii] Report of Standing Committee on Home Affairs

[viii] People’s Union of Civil Liberties v. Union of India, AIR1997 SC 568

[ix] at paragraph 23

[x] AIR 2007 AP 102

[xi] R.M. Malkani v. State of Maharashtra AIR 1973 SC 157

[xii] Roy Olmstead v. United States of America 277 U.S. 438 (1928)

[xiii] S. Pratap Singh v. State of Punjab  AIR 1964 SC 72

[xiv] Yusufalli Esmail Nagree v. State of Maharashtra AIR 1968 SC 147

[xv] R v. Maqsud Ali [1965] All. ER. 464

[xvi] N. Sri Rama Reddy v. V.V.Giri AIR 1971 SC 1162

[xvii] Supra, see note 9.

[xviii] Rayala M. Bhuvaneswari v. Nagaphamender Rayala  AIR 2008 AP 98.

[xix] R v Sang [1980] AC 402

[xx] R v Khan [1994] NLJR 863

[xxi] Malone v UK [1979] 2 All ER 620

[xxii] R v. Maqsud [1966], 1 QB 688, CCA

[xxiii] R. v. Araujo, 2000 Carswell BC 2440

[xxiv] ibid

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