Author : Nithin Manoj, Student at School of Law, Christ University.
INTRODUCTION
The Article is a discussion on the topic of laws on the concept of Phone Tapping. It initially talks about the existing laws on the concept of the Phone Tapping and the usage of such laws in our country. The article tries to give an overview about the right to privacy and the act of communication restriction and various case laws on it. The last part of the article discusses about the current scenario and the recent incidents in our country on the act of phone tapping. Conclusion part is a discussion on the laws and the usage of that laws in the act of Phone Tapping.
OVERVIEW ON COMMUNICATION SURVEILLANCE
The act of surveillance of an individuals or a group of people’s personal information is a concept that need to be taken with adequate care and concern. This act of keeping a track or collecting of a particular group’s information can be understood as surveillance of communication. These actions can be interpreted as an act of monitoring, expropriation and collection of personal communication and information that has been communicated or initiated in a network of communication to a receiver by a party outside the group of communication[1]. The phone tapping is a part that comes under this section of surveillance.
Phone Tapping can be understood as the act of monitoring the telephonic conversation or an internet bases conversation by a third party. The act of monitoring of telephonic conversation of any type of information is a violation of the Right to privacy. Article 17 of the ICCPR asserts that, “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.”
LAWS ON PHONE TAPPING
In India laws that governing the telephone tapping is described in the Indian Telegraph Act 1885 along with the Indian Telegraph (Amendment) Rules 2007. Section 5(2) of the act explains that “any officer that is authorised by the centre or the state government in matters relating to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of an offence is given power to decode a massage and submit it to the government and to the conserved authorities in the section”[2]. The rule 419A of the telegraph rule amendment act states about rules and regulation that should be followed while doing the act of phone tapping. According to the rules in India anyone who does the act of phone tapping without following the above mentioned procedures then such an act is considered an illegal act[3].
RIGHT TO PRIVACY AND PHONE TAPPING
It has been already underlined by various judgments, tribunals and convention that Phone Tapping is a clear violation of the Right to privacy of the citizens. The 2017 Puttuswammy judgement has stated the Right to Privacy is an integral part of the constitution and it falls in the purview of the Article 21 of constitution[4]. The article 21 of the Indian constitution, states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”[5] Telephone communication is a part an integral part of the modern man’s life. It is an important act in the life of a normal human as it is the most relevant way of communication. In the case of PUCL the court have pointed out the fact that “Telephone conversation is an important facet of a man’s private life. Right to privacy would certainly include telephone-conversation in the privacy of one’s home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law”.[6] In the case of R.M Malkani the SC explained “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 high handed interference by tapping the conversation”[7]
Right to Privacy has been sated a right which is inseparable from the dignity of the human being. “The dignity of the individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian Constitution”[8]. In the Indian legal context the act of phone tapping is an illegal act until it’s to be approved by a designated authority. The court in the case of PUCL v. Union of India[9] have stated that private telephonic conversation of a person without any intervention is also a part of Right to Privacy provided under the Indian Constitution. The court in the same of PUCL V. Union of India have sated the methods that need to be followed while doing the act of phone tapping:
- If the act of Phone Tapping need to be done, then the home secretary of Central government or the state authority should issue an order.
- For such an order to be passed there must be a strong reason that should have been specified to initiate such an act.
- An order that is passed shall have its validity only for the period of two months after which there should be another order passed for the same act of Phone Tapping that to can be extend only to another period of six months only.
“The Supreme Court in the judgement did not give the home secretary the ultimate power and states that such an order shall be subject to review by the cabinet law and telecommunication secretary who will need to review the same in 2 months’ time of the date the order has been passed”.[10]
CURRENT SCENARIO AND RECENT INCIDENTS
The judiciary of our country through various judgements in past and recent timing have upheld the right to privacy of the individuals. Judges in various judgments have mentioned that any private conversation that is through any means is a basic right of an individual unless and until it creates problems to the well-being of the country and intervention on it is a clear violation of the article 21 of the Indian Constitution.
The issue that the citizens now facing is about their privacy in the area of communication even after such broad setting of guidelines and rules for the protection of the privacy of the citizens of our country. The matter that we should looked into is that even after such legislation and legal framework is the privacy of the people especially on the communication concept is that weather the people’s privacy and there private communications are free from any such interference that is either from the private or from government section of the society.
It has been sated in the case of K.S Puttuswammy V. Union of India that the privacy of a person also include the dignity of the person.[11] It is to be understood that the private conversation leakage is also a grave violation of the dignity of the individual. Recently it has been reported that by various media houses that, a phone conversation between the Indian Today reporter Thanushree Panday and a relative of the Dalit women who was allegedly Gang-rape and killed in Hatras, U.P was leaked in social media.
This is not a remote incident, It has been a trend in our country that the phone calls of politician, activists, journalist getting tapped and those calls getting viral at the social media as well online platforms, these are acts that is a clear cut violation of rules on phone tapping and rights that are provided by the constitution of our country. Thus it can be stated that in the recent times peoples are weaponization this act of Phone Tapping and using it against the victims. Even after making such strict rules and regulations for protection of people from privacy interventions such acts are a common incidents in the country.
CONCLUSION
It is to be noted that the there are laws against the act of phone tapping in our country but what is lacking is the strong implementation of such laws. The laws must be setup in a way what gives protections to all citizens from any such acts of unwanted and unlawful intervention in any private communication that is done through any mode. Until and unless the government create more stringent and strong laws against such acts of Phone Tapping and other unwanted surveillance of the communication the privacy of communication of all citizens in our country is always at an irresolute.
REFERENCES
[1] Communications Surveillance; Privacy International; (08/ February/2018) https://privacyinternational.org/explainer/1309/communications
[2] Indian Telegraph Act 1885; Act. No: 13 of 1885; Indian Code (1885).
[3] Indian Telegraph (Amendment) Rules 2007;
[4] K.S. Puttaswamy&Anr. v. Union of India &Ors, (2017) 10 SCC 1
[5] INDIA CONST. art. 21
[6] PUCL V. Union of India, AIR 2003 SC 2363
[7] R.M. Malkani v. State of Maharashtra 1973 AIR 157
[8] K.S. Puttaswamy&Anr. v. Union of India &Ors, (2017) 10 SCC 1.
[9] PUCL V. Union of India, AIR 2003 SC 2363
[10] PUCL V. Union of India, AIR 2003 SC 2363
[11] K.S. Puttaswamy&Anr. v. Union of India &Ors, (2017) 10 SCC 1