The concept of telephone tapping has been main talking point over the past three decades. The contemporary world being described as a global village and our dependence on telephonic communications has made us more susceptible to telephone tapping. Instance like unwarranted government surveillances through means of telephone tapping have raised serious concerns. The subject matter revolves around the issues of possessing a real threat to our right to privacy and its evidentiary value. Although, under the Indian Constitution “the right to privacy” is not identified, but the Supreme Court under the case of “Kharak Singh v. Union of India” has recognized it as the fundamental right. Under the said case the majority and minority opinions of all the seven judges laid down their judgment that the “right to privacy” should be under the Article 21 of the Constitution i.e., “protection of life and personal liberty”. As matter of fact, under the Puttaswamy case, also gave enough recognition towards the “right to privacy under the part III of the Constitution”. On the other hand, India being the signatory of many international covenants such as, “the International Covenant on Civil and Political Rights and others” highlights the importance pf privacy against the arbitrary and unlawful interference. Moreover, it was further observed by the Supreme Court under the case of “R. Rajagopal v. State of Tamil Nadu” that safeguarding “the privacy of one’s own family, children, husband, wife, educations, motherhood, procreation and so on is the citizen right to privacy and to be let alone.”
The major focal point had begun when parliamentarian and political leaders like Amar Singh made accusations on their telephones tapped by the private investigators and governments. As a matter of fact, the legal positions on the issues of telephone taping or recordings by third parties or the government raised many doubts on matter of privacy. Due to unauthorized telephones tapping by the law enforcement agents paved ways for discovery of many political scandals. On the other hand, the government has been granted power under the Section 5 of the Indian Telegraph Act, 1885 (ITA) to take on intercept the messages or make an order for a possession of licensed telegraphs. Therefore, “the sine qua non for invoking the power granted under the said provision is occurrence of any public emergency or at the interest of the public safety.” As a matter of fact, other conditions as per the Section 5(2) of the said statues is“to conduct telephone tapping should be in interest of (1) the sovereignty and integrity of India, (2) security of the state, (3) friendly relation with foreign state, (4) public order and (5) for preventing the incitement for the commission of an offence.” Moreover, such permission is granted under the procedure under the said act’s Rule 419-A to both the state and central government as the above-mentioned events or circumstances takes place. Similarly, under the case of PUCL v. UOI, has given out guidelines that must be followed through before phone tapping. Firstly, the Home Secretary of Government and Home Sectaries of States or under the cases of emergency the officer from the Home Department of the central government should issue an orders for telephone tapping. Secondly, it should address the person who will be intercepted by the means of telecommunications.
Evidence based obtained through illegal means such as telephone tapping has never ben exclude or considered to be admissible by the judiciary. As a matter of fact, it doesn’t by itself make the evidence inadmissible based on the probative value, relevancy, and other forms of method it was procured. Under the case of “R.M. Malkani v. State of Maharashtra” the court recognized the illegal obtained evidence i.e., tape recording and upheld the admissibility of the evidence. Under these circumstance the police took the consent of one party and other party feel into the prey of tap recording and contented that it was illegal. On the other hand, under the case of ‘Vinit Kumar v. Bombay High Court’, the hon’ble Bombay High Court was able to set aside the interception of order and order the destruction of intercepted message’s copies. On this account it looked at the issues whether the interceptions of such telephone calls ultra vires the provision i.e., Section 5 (2) of the ITA, 1885.
The rules laid down under the Indian Telegraph Act, 1885 were acknowledged the general application of rules especially for the destructions of the interception of telephone calls as illegal messages. However, under the said case the court also laid down that evidence procured illegally in other proceeding and don’t have provisions for the destructions or exclusion it will considered under the general rule i.e., admissible. Although under the case of “PUCL (People’s Union of Civil Liberties) v. UOI (Union of India)” .  it was argued by the petitioner that telephone tapping being done on person’s home or offices were an interference to the person’s right to privacy, but the courts used the notion end justify the means.
Under the “Indian Telegraph Act, 1885” is the only statutes that lays down the provision on telephone or wiretapping. As a matter of fact, the guidelines and procedure laid down under the said statute aims to have a lawful interception. Yes, telephone tapping does coerce with the individual’s right to privacy, but such interception is lawful when it is carried out under the circumstances mentioned in the said provision i.e., Section 5 of the said statue. Interception of any telephone communications is lawful in the interest of nations sovereignty and integrity and check on the government law enforcement agencies indiscriminate telephone tapping.
Author’s Name: Shaurya M Rana (Bennett University, Greater Noida)
- Kharak Singh v. State of U.P & others ,  AIR 1295, 1964 SCR (1) 332.
- Constitution, A. 2. (n.d.).
- Rajagopal v. State of T.N. , AIR 264, 1994 SCC (6) 632. (Supreme Court 1995).
- Indian Telegraph Act, 1. (n.d.). Section 5.
- People Union of Civil Liberties v. Union of India and Anr. , , AIR 1997 SC 568, JT 1997 (1) SC 288, 1996 (9) Scale 318 (1997) 1 SCC 301, 1996 supp 10 SCCR 321, 1997 (1) UJ 187 SC. (Supreme Court 1997).
- M. Malkani v. State of Maharashtra , AIR 157, 1973 SCR (2) 417 (1973).
- Vinit Kumar v. Bombay High Court,, Writ petitions 2367 of 19(J).
- Khan, B. C. (n.d.). Rethinking the ‘Fruits of the Poisonous Tree’ Doctrine : Should the ‘Ends’ Justify the ‘Means’? .
 Kharak Singh v. State of U.P & others  AIR 1295, 1964 SCR (1) 332.
 Article 21: “Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law”.
 R. Rajagopal v. State of T.N. , AIR 264, 1994 SCC (6) 632.
 Section 5, in the Indian Telegraph Act,1885.
 People’s Union of Civil Liberties v. Union of India and Anr. , AIR 1997 SC 568, JT 1997 (1) SC 288, 1996 (9) Scale 318 (1997) 1 SCC 301, 1996 supp 10 SCCR 321, 1997 (1) UJ 187 SC.
 R.M. Malkani v. State of Maharashtra  AIR 157, 1973 SCR (2) 417
 Vinit Kumar v. Bombay High Court, Writ petitions 2367 of 19(J)
 Section 5 (n 4) Page 1.
 PUCL (n 5) page 2.