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2014 Article
By Aniruddh Singh .

Interception of Communication

By- Aniruddh Singh

B.B.A. LL.B (H)

Amity University (Lucknow)

1. Introduction

This is an article which evaluates the procedural aspects of the interception of communication
and its adequacy in India. The research also tries to through light on the use of the evidences
which are available through the means of interception process by the intelligence and
investigating agencies. The article also analyzes the provisions of the statutes which relates to
the interception of communication. It mainly focuses on the four main questions. Firstly
weather the interception of communication is constitutionally valid or not. Secondly, the
circumstances in which the interception of communication is allowed and the procedure.
Thirdly, admissibility of such evidences in the court and lastly, weather the admissibility of the
evidence depends on the legality of the interception of communication.

The simplest definition of interception is given by Amanda Hale and John Edwards, A person
intercepts a communication in the course of its transmission if, as a result of his interference in
the system or monitoring of the transmission, some or all of the contents are made available,
while being transmitted, to a person other than the sender or the intended recipient of the
communication.1

In other words interception of communication stands for the process of stopping or monitoring
the communication between the actual sender and the actual receiver. Interception of the
communication is an investigative technique used by the intelligence and law enforcement
agencies to secure the national interest or for the prevention of detection of serious crime or to
safe guard the economic well-being of the country or where any such activities are directly
affecting the national security.2 Interception of communication may include tapping of
telephone lines, surveillance on SMS, e-mails and internet etc.

As far as India law is concerned mostly interception of communication is regulated by the Indian
Telegraph Act, 1885 and The Information and Technology Act, 2000. The regulatory provisions of
the Telegraph Act, 1885 are Section 5(2)3 and Rule 419A4 of Indian Telegraph Rules, 1951 and

1
A Hale and J Edwards, Getting it Taped (2006) 12 Computer and Communications Law Review 71;
2
See pg. no. 10 of the 2012 Annual report of Interception of Communications Commissioner; available on
http://www.iocco-
uk.info/docs/2012%20Annual%20Report%20of%20the%20Interception%20of%20Communications%20Commission
th
er%20WEB.pdf ; Accessed on 28 Dec. 2013.
3 st
Substituted by Indian Telegraph (Amendment), Act 1972, with effect from 21 Aug. 1972

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the provision of Information and Technology Act, 2000 which deal with the procedure of legal
Interception is Section 69.5
In Indian scenario the position of interception of communication is modified to a great extent
because of two factors: the pressure of human rights on the particular matter and the rise of
communication technology in the in the last decade of the 20th century. Since 1972 Indian
Judiciary and Parliament have answered complicated questions came before them because of
the particular subject through judgments and legislations. These legislations and judgments
have arose a very distinct concept of the use of evidences collected through the process of
interception of communication in criminal trial and its place in law enforcement.

2. Right to privacy VS. Interception of Communication

In our modern world of hidden cameras, telephone-tapping and increased surveillance of e-mail
and the Internet, the privacy seems to be lost. The continuous issue of Interception of
communication now became a topic of never ending debate between law enforcement agencies
and civil liberties activists as the interception of communication is also the violation of right to
privacy to a certain extent.

2.1. Right to Privacy in India

The Right to privacy is embodied in two articles of the Indian Constitution article 19 the
right to freedom and article 21 Right to life and personal liberty.6 Where Article 19(1) (a)
provide for all citizens shall have the right to freedom of speech and expression, article 19
(1) (b) which provide that this will not affect the operation of any existing law, or prevent
the State from making any law, in so far as such law imposes reasonable restrictions on the
exercise of the right in the interests of the sovereignty and integrity of India, the security
of the State, friendly relations with foreign States, public order, decency or morality, or in
relation to contempt of court, defamation or incitement to an offence. And article 21
provides that No person shall be deprived of his life or personal liberty except according to
procedure established by law. Both the articles have a conditional clause. Article 19 (1) (b)
expressly provide for the term reasonable restriction and article 21 provide for the phrase
according to procedure established by law in this context the Supreme court held that any
procedure which deals with the modalities of regulating, restricting or even rejection of 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, understood, procedure must
rule out anything arbitrary, freakish or bizarre.7

4
Introduced by Indian Telegraph (Amendment), Rules, 2007
5
Introduced by Information Technology (Amendment), Act 2008
6
R.Rajgopal v. State of Tamil Nadu (1994) 6 SCC 632
7
Maneka Gandhi v. Union of India (1978) 2 SCR 621

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First time in 1965 the question of whether the right to privacy is an absolute right or not,
came before the court on that point the Supreme Court has used the term reasonable
restriction which is to be applied on the right to privacy on a particular class of people.8
This judgment of the Supreme Court and the conditional clauses makes it very clear that the
right of privacy was never an absolute right of the citizen it was always subject to the
reasonable restriction.
2.2. Historical Background

The first case ever of interception of communication was reported in the common law in
1826 where a mail is obtained from the prisoner by the keeper of the keys in a prison under
a false promise that he will post that mail but instead of posting that mail it was presented
in the court as evidence against the prisoner and was admitted as a valid evidence by the
court and used for prosecution in a criminal trial.9 Initially the interceptions of
communication were taken as a source of evidence rather than as infringement of rights.
The development of the concept of Human rights has directly affected the interception of
communication and from a means of collecting evidence it became an activity which violates
the peoples right to privacy.

In U.S. the Supreme Court in 1967 in the case of Katz v. United States10 where the petitioner
used a public telephone booth to transmit wagering information from Los Angeles to Boston
and Miami in Violation of federal law. After extensive surveillance, FBI placed a listening
device to the top of the telephone booth and recorded petitioners end of the telephone
conversations which was then used as evidence against him in at his trial. The Court
declared the evidences obtained through tapping are inadmissible as they violates the
Fourth Amendment of the Constitution(right to privacy) and held that the wire tapping of
any individual should be warranted, judicially sanctioned and supported by probable cause.
This judicial precedent resulted in the Wiretap Act of 1968 that regulated domestic
surveillance through wire tapping. The U.S. Congress also enacted the Foreign Intelligence
Surveillance Act (FISA) in 1978 for unrestricted foreign surveillance in the context of the
Vietnam War and anti-war protests. FISA gave the U.S. government the power to conduct
surveillance, without judicial sanction, surveillance for foreign intelligence information; and,
with judicial sanction from a secret FISA court, surveillance of anybody.11

8
State of U.P. v. Kaushaliya and Others AIR 1964 SC 416
9
R v Derrington (1826) 2 C & P 418 [interception of mail] See footnote no. 439 of Cross and Tapper on Evidence by
Colin Tapper published by Oxford University Press, available on <
http://books.google.co.in/books?id=kIRs4W_k7pcC&pg=PA315&lpg=PA315&dq=R+v+Derrington+(1826)&source=
bl&ots=0pS1WJXHa3&sig=tcNlwiygvrMxNnYSO_x7egw4GFE&hl=en&sa=X&ei=qEfGUt_hLcmJrQeyvYDICA&ved=0C
st
CoQ6AEwAQ#v=onepage&q=R%20v%20Derrington%20(1826)&f=false>, accessed on 1 Jan 2014.
10
389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)
11
See Indian Privacy in Peril, Posted by Bhairav Acharya, Filled under Internet Governance, Privacy

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In India the case of R.M. Malkani v. State of Maharashtra12 which can be considered to be
the case from where the clash between the interception and the right to privacy started in
the India. It was the first case of its kind in India wiretapping. In this case the voice of the
petitioner was recorded during the course of a telephonic conversation where he was trying
to blackmail an innocent doctor to implicate him in a case involving the negligent death of a
patient. It was alleged by the petitioner that his right of privacy under Article 21 had been
violated. The Supreme Court makes it clear by declining his plea and held that the
telephonic conversation of an innocent citizen will be protected against the wrongful or
illegal tapping of the conversation. The protection is not for the guilty citizen against the
efforts of the police to protect the law and prevent corruption of public servant.

Thus, to conclude this section of the article, it may be observed that initially the concept of
interception of communication is started as a means of collecting evidences but after the
development in the Human rights, it became violation of human right in certain cases. As the
scope of human rights increased, the protection of the privacy of an individual also became the
priority of the state. So interception of any persons communication without any proper cause
became infringement of the rights of individual. But the Courts in India as well as in abroad
observed that the interception process is necessary for the national security and interest or for
the prevention of detection of serious crime or to safe guard the economic well-being of the
country. So they applied reasonable restriction on the right of privacy of the individual. And the
parliament and the court both have laid down certain procedure for the legal interception of
communication which I will discuss later.

3. Legal Interception of Communication

In India, mostly all the legislations which deals with the medium of inter-personal
communication like post, telegraph, telephone and emails also have similar provisions relating
to the circumstances in which the interception of communication is allowed. These provisions
provides for the formalities which is required to be done before executing interception process
and also the authorities from where the prior permission should be taken and also many other
aspects relating to the permission, process and use of the information obtained through
interception of communication is provided.

3.1. Interception under Indian Post Office Act, 1989

12
AIR 1973 SC 157

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Interception of postal articles is provided under section 26 of the Indian Post Office Act,
1898. This section confers the power to Central and State Government to intercept any
postal article for public good. Under this section the power can only be exercised on
occurrence of any public emergency, or in the interest of the public safety or tranquility.
This section further provide in sub section (2) that the certificate from the Central or the
State Government in the case of any doubt relating to the public emergency or interest of
public safety or tranquility shall be considered as a conclusive proof. 13

3.2. Interception under Indian Telegraph Act, 1885

In Indian Telegraph Act, 1885, section 5(2)14 provide for the circumstances in which the
authorization to the interception of any message should be given and also provide for the
personal who are authorize to execute interception of communication activity. The
provision can be simplified by further dividing it into parts which are as follows

On the occurrence of any public emergency, or in the interest of the public safety;
the Central Government or a State Government or any officer specially authorized in
this behalf by the Central Government or a State Government may
if satisfied that it is necessary or expedient so to do in 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,
for reasons to be recorded in writing, by order,
direct that any message or class of messages to or from any person or class of
persons, or relating to any particular subject, brought for transmission by or
transmitted or received by any telegraph, shall not be transmitted, or shall be
intercepted or detained, or shall be disclosed
to the Government making the order or an officer thereof mentioned in the order

13
Section 26 of Indian Post Office Act, 1898 Power to intercept postal articles for public good.- (1) On the
occurrence of any public emergency, or in the interest of the public safety or tranquility, the [Central Government],
or a [State Government], or any officer specially authorised in this behalf [by the Central or the [State
Government] may, by order in writing, direct that any postal article or class or description of postal articles in
course of transmission by post shall be intercepted or detained, or [shall be disposed of in such manner as the
authority issuing the order may direct].

(2) If any doubt arises as to the existence of a public emergency, or as to whether any act done under sub-section
(1) was in the interest of the public safety or tranquility, a certificate [of the Central Government or, as the case
may be, of the [State Government] shall be conclusive proof on the point.
14
Substituted by the Indian Telegraph (Amendment) Act, 1972, with effect from 21.8.1972

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Thus from dividing the provision the circumstances which trigger an interception
activity is specified which are occurrence of any public emergency or in the
interests of public safety, the Central Government or the State Government or any
authorized person on their behalf are only authorized to conduct interception. The
necessity of the interception should be evaluated on the ground that it should be in
the interests of the sovereignty and integrity of India or the security of the State or
friendly relations with foreign States or public order or for preventing incitement to
the commission of an offence. Such reason should be recorded in writing.

3.2.1. Hukam Chand Shyam Lal v. Union of India and ors.15

In this case the question before the Supreme Court was whether the economic
emergency could be considered as the public emergency which is provided under
the Section 5(2) of the Telegraph Act, 1885. And, whether disconnection of a
telephone could be ordered due to such economic emergency

In this particular case Government of Delhi had ordered the disconnection of


telephone of the petitioner. It was alleged by the Delhi Government that the
petitioner is involve in the forward trading of the agricultural commodities which
was forbidden at that time. It was also alleged by the respondent that there was an
active use of the telephone for the purpose of forward trading which result in
escalating of prices of food commodities and thus constitute an economic
emergency.

The Supreme Court interpreted the meaning of the public emergency and held that
a public emergency within the context of the section 5(2) of the Telegraph Act,
1885, is one which create problems relating the interest of public safety, the
sovereignty and integrity of India, the security of State, friendly relation with foreign
States or public order or the prevention of incitement to the commission of an
offence.

Economic emergency does not qualify for the matters which are expressly
mentioned in the statute. Mere economic emergency as the High Court call it may
not necessarily amount to public emergency and the action of disconnection of
phone is not justified under this section unless the activity does not give rise to
some problem relating to the matters indicated in this particular section.

3.2.2. Peoples Union for Civil Liberties (P.U.C.L.) v. Union Of India16

15
AIR 1976 SC 789 , 1976 SCR (2)1060 , (1976) 2 SCC 128
16
AIR 1997 SC 568

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In 1991, the Peoples Union for Civil Liberties filed a writ petition in the Supreme
Court challenging the constitutional validity of Section 5(2) of the Telegraph Act,
1885. It was alleged that the Act lays down situations when such power can be
exercised but manner in which such power is to be exercised not provided in Act
and that the interception of communication through phone tapping under this
provision is unconstitutional and violates the fundamental rights i.e. right to
freedom of speech and expression under Article 19(1) and right to life and personal
liberty under Article 21.

The main question before the Court was whether the telephone conversation would
be included under the ambit of right to privacy or not and whether the interception
of communication under the section 5 (2) of the Telegraph Act, 1885 are
infringement of a citizens right to privacy or not. The Supreme Court has to
determine procedures and guidelines to protect citizens against the arbitrary
exercise of power by the government. It also has to clarify circumstances in which
the telephone tapping could be conducted.

In December 1996, The Supreme Court pronounced the judgment and held that:
The right to privacy has not expressly provided in the Constitution. As a concept it is
too broad and moralistic to define it judicially. Weather right to privacy has
infringed or not in a particular case depends on the facts of the said case. But the
Supreme Court also clarified that the telephone conversation in the privacy of ones
home and office without interference can certainly be claimed as a right to privacy.
Conversations on the telephone are often of an intimate and confidential character.
Thus Right to privacy would certainly include telephone-conversation in the privacy
of one's home or office. Telephone-tapping would, thus the said right cannot be
curtailed "except according to procedure established by law".

The Supreme Court has also derived the right to privacy simultaneously from
Article 19 of the Constitution. The Court observed that When a person is talking on
telephone, he is exercising his right to freedom of speech and expression and
therefore the court was with the opinion that When a person is talking on
telephone, he is exercising his right to freedom of speech and expression.
Telephone-tapping unless it comes within the grounds of restrictions under Article
19(2) would infract Article 19(1)(a) of the Constitution.

On the subject of Section 5 (2) of Telegraph Act, 1885 The Court has said that
Unless a public emergency has occurred or the interest of public safety demands,
the authorities have no jurisdiction to exercise the power of interception under the

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particular provision. The Supreme Court has also interpreted the meaning of public
emergency and public safety mentioned in the section 5(2). According to the court
public emergency means the prevailing of a sudden condition or state of affairs
affecting the people at large calling for immediate action and public safety means
the state or condition of freedom from danger or risk for the people at large. The
Court was with the view that even if the Government or the authorized person is
satisfied that telephone tapping is necessary or expedient for the interests of
sovereignty and integrity of India, then also they cannot resort to telephone
tapping unless either of these two conditions is not in existence

3.2.3. Rule 419A of the Indian Telegraph Rules, 1951

Rule 419 A deals with the procedure of the legal interception of communication.
The rule was firstly added on 1999 but was later amended in 2007. The provisions
for authorization of interception are contained in Section 5(2) of Indian Telegraph
Act, 1885 read with Rule 419(A) of the Indian Telegraph Rules, 1951.17The order
shall be issued only when it is not possible to acquire the information by any other
reasonable means by the competent authority.18

Designated officers by the requisitioning security agencies nodal officers


not below the rank of Superintendent of Police or Additional
Superintendent of Police or the officer of the equivalent rank.

Designated officers by the service providers nodal officers two senior


executives of the company in every licensed service area/State/Union
Territory

Review Committee to be constituted by the Central Government shall


consist of the following, namely :-

a) Cabinet Secretary Chairma


b) Secretary to the Government of India Incharge,
Legal Affairs Member
c) Secretary to the Government of India, Department of
Telecommunications Member

17 th
Clarifications on the Report on Tapping of Telephones by Cabinet Secretary on 25 April 2011 available on <
th
http://pib.nic.in/newsite/erelease.aspx?relid=71791> ; accessed on 7 January 2014
18
Rule 419A(3) of the Telegraph Rule, 1951

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The Review Committee to be constituted by a State Government shall


consist of the following, namely:

a) Chief Secretary Chairman


b) Secretary Law/Legal Remembrancer Incharge, Legal
Affairs Member
c) Secretary to the State Government
(other than the Home Secretary) Member
Procedure for the interception of communication under 5(2) of the
telegraph act according to the rule 419A (1) of the Telegraph Rules, 1951

1. Issuance of order by the Secretary to the Government of India in the


Ministry of Home Affairs in the case of Government of India and by the
Secretary to the State Government in-charge of the Home Department in
the case of a State Government.
In unavoidable circumstances, not below the rank of a Joint Secretary to
the Government of India who has been duly authorized.

2. In emergent cases19 interception shall be carried out with the prior approval
of the Head or the second senior most officer of the authorized security. At
the Central Level the officers authorised in this behalf, at the state level
not below the rank of Inspector General of Police.

3. Within 3 working days, approving authority shall inform the concerned


competent authority

4. Within 7 working days such interceptions shall be got confirmed by the


concerned competent authority.

5. Such interception shall cease in the case of the default or delay.

6. A copy of order by the competent authority shall be forwarded to the


concerned Review Committee within a period of 7 working days.

7. The directions for interception shall be conveyed to the licensee(s) who


have been granted licenses under Section 4 of the said Act by an officer not

19
(i) in remote areas, where obtaining of prior directions for interception of messages or class of messages is not
feasible; or
(ii) for operational reasons, where obtaining of prior directions for interception of message or class of messages is
not feasible

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below the rank of Superintendent of Police or Additional Superintendent


of Police.

8. The nodal officers of security agencies authenticate and send the


requisitions for interception to nodal officer of the service providers.

9. The nodal officers the service providers will receive and handle such
requisitions for interception.

10. The nodal officers of the service providers shall issue acknowledgment
letters to the concerned security and Law Enforcement Agency within 2
hours on receipt of intimations for interception.

11. The nodal officers of the service providers shall forward every fifteen days
list of interception authorizations received by them to the nodal officers of
the security agencies for confirmation of the authenticity of such
authorizations.

The list should include following details-


the reference and date of orders of the Union Home
Secretary or State Home Secretary
date and time of receipt of such orders
the date and time of Implementation of such orders.

12. The direction interception shall remain in force for not more than 60 days,
if not revoked earlier.

13. The direction interception may be renewed but shall not remain in force
beyond a total period of 180 days

14. Records pertaining to such directions for interception and of intercepted


messages shall be destroyed by the relevant competent authority and the
authorized security agencies every 6 months if not required for functional
requirement.

15. The service providers shall destroy records pertaining to directions for
interception of message within 2 months of discontinuance of the
interception of such messages.

Checklist for the interception order according to Rule 419A

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The order issued by the competent authority for interception should


contain reasons for direction of interception of communication.

The direction shall specify the name and designation of the officer or
the authority to whom the intercepted message or class of messages is
to be disclosed.

The direction shall specify that the use of intercepted message.

The officer authorized to intercept any message shall maintain proper


records.

Such record should contain the following

intercepted message or class of messages


the particulars of persons whose message has been intercepted
the name and other particulars of the officer or the authority to
whom the intercepted message has been disclosed
the number of copies of the intercepted message
the mode or the method by which such copies are made
the date of destruction of the copies
the duration within which the directions remain in force.

3.3. Interception under Information And Technology Act, 2000

The most recently Interception clause was added in the Information and Technology Act,
2000 under Section 6920 of the Act. This section provide for the power to issue direction for
interception or monitoring or decryption of any information through any computer
resources by the Central or State Government or any person specially authorized by the
Governments can only execute the interception of communication. This section extended
the power of interception which may be exercised when such authorized persons are
satisfied that it is necessary or expedient to intercept the communication in the interest of

a) Sovereignty or integrity of India,
b) Defense of India,
c) Security of the State,

20 th
Substituted by Information technology (Amendment) Act, 2008, with effect from 5 Feb. 2009

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d) Friendly relations with foreign States or


e) Public order or
f) Preventing incitement to the commission of any cognizable offence relating to above or
g) For investigation of any offence,

With the help of Sub section (3)21 of section 69, all the authorized investigative agencies get
the full technical assistance and facilities from the subscribers or intermediaries or any
person in-charge of the computer resource which is required for the interception or
monitoring process. And sub section (4) provide for the punishment for the intermediaries
or subscribers or any other person who so ever fails in providing the assistance to the
agencies. 22

Thus, I have observed that the 2008 amendment of IT Act has enhances the power of
government to intercept the communication by adding interception and monitoring which
were not mentioned at all in the earlier IT Act, 2000. Even the procedures and guidelines to
protect citizens against the arbitrary exercise of power by the government which was laid down
by Supreme Court in the PUCL case and the section 5(2) of the Telegraph Act, 1885 has knee
down if front of the amended section 69 of the IT Act, 2000. As the term public emergency and
public safety is not been included in the new section, the government now has the power of
investigation of any offence through interception irrespective of the fact that the offence is
cognizable or not.

4. Nature of the evidence

The evidence collected through interception process has reformed the traditional concept of
evidence, after coming into force Information Technology Act, 2000. The intercepted materials
are covered under electronic form"23 and electronic record24 of the I.T. Act 2000 and such
electronic records are admissible in the court of law as evidence according to the Section 9225 of

21
Sec. 69 (3) The subscriber or intermediary or any person in-charge of the computer resource shall, when called
upon by any agency referred in sub section (1), extend all facilities and technical assistance to
a) Provide access to or secure access to computer resources generating, transmitting, receiving or storing
such information; or
b) Intercept, monitor or decrypt the information as the case may be; or
c) Provide information stored in computer resource.
22
Imprisonment for a term which may extend to 7 years and shall also be liable to fine.
23
Section 2(r) of I.T. Act, 2000 "electronic form" with reference to information means any information generated,
sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro
fiche or similar device;
24
Section 2(t) of I.T. Act, 2000 "electronic record" means data, record or data generated, image or sound stored,
received or sent in an electronic form or micro film or computer generated micro fiche
25
Section 92 of I.T. Act, 2000, The Indian Evidence Act, 1872 shall be amended in the manner specified in the
Second Schedule to this Act.

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this Act read with Schedule 2 which amends the definition of evidence as contained in Section
3 of the Evidence Act.

The Supreme Court also held that in R.M. Malkani v. State of Maharashtra26 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 evidence Act. The
Supreme Court in the has also compared the tape-recorded evidence with a photograph of a
relevant incident, and going on this assumption it was decided that Sections 7 and 8 of the
Evidence Act [1872] would not hit the admission of improperly obtained evidence. Thus, if a
statement is relevant, an accurate tape record of the statement is also relevant and admissible.

In the case of S. Pratap Singh v. State of Punjab27, the Supreme Court allowed the tape record of
a telephonic conversation between the Chief Ministers wife and a doctor to be admitted in
evidence to corroborate the evidence of witnesses who had stated that such a conversation had
taken place.

4.1. Evidentiary Value

The next question regarding evidence obtained through interception is about utility and
evidentiary value. Questions like whether such evidence is primary or secondary; whether it
is direct or hearsay and whether it is corroborative or substantive are important in this
regard.

The point whether such evidence is primary and direct was dealt in the Presidential Election
case28 by the Supreme Court. In this case the petitioner alleged that Jagat Narain had tried
to dissuade him from contesting the election. Their tape-recorded telephone conversation
was then produced in Court to disprove Narains claims the incident never took place.
Here the Court utilised 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 of what has been said and recorded.

This was again restated by the Supreme Court in R.M. Malkani v. State of Maharashtra29
case where it was held that when a court permits a tape recording to be played over, it is
acting on real evidence if it treats the intonation of the words to be relevant and genuine.
Further in the case it was expressed that such recorded conversations are also vital for the

26
AIR 1973 SC 157
27
AIR 1964 SC 72

28
N. Shri Rama Reddy Etc. v. Shri V.V.Giri 1971 AIR 1662
29
Ibid 26.

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purposes of corroboration and cross-examination in order to test the veracity of the


witness.

Referring to the law laid down in the Presidential Election case, a three judges bench of the
Supreme Court in the case of Ziyauddin Burhanuddin Bukhari vs Brijmohan Ramdass Mehra
& Ors30 held that like any document, the tape record itself was "primary and direct
evidence admissible of what has been said and picked up by the receiver. In other words,
its use was not confined to purposes of corroboration and contradiction only, but, when
duly proved by satisfactory evidence of what was found recorded and of absence of
tampering, it could, subject to the provisions of the Evidence Act, be used as substantiative
evidence. But the authenticity of such tape recording should be duly established.

4.2. Conditions of Admissibility

The conditions of admissibility of intercepted communication through tapping was


discussed in length by the Supreme Court in the case of Ram Singh & Ors vs Col. Ram Singh31
where the Court has pointed out the conditions which are necessary for the admissibility of
the of tape recorded conversation may be stated as follows:

1. The voice of the speaker must be duly identified by the maker of the record or by
others who recognise his voice. In other words, it manifestly follows as a logical
corollary that the first condition for the admissibility of such a statement is to
identify the voice of the speaker. Where the voice has been denied by the maker it
will require very strict proof to determine whether or not it was really the voice of
the speaker.

2. The accuracy of the tape recorded statement has to be proved by the maker of the
record by satisfactory evidence - direct or circumstantial.

3. Every possibility of tampering with or erasure of a part of a tape recorded statement


must be ruled out otherwise it may render the said statement out of con text and,
therefore, inadmissible.

In fact, in the most recent case of Tukaram S. Dighole v Manikrao Shivaji Kokate32 ,
the Apex Court has held that though tape-records are documents as per Section 3,
as they are susceptible to tampering which may not be easily detected, standard of
proof as to their authenticity and accuracy should be more stringent as compared to
other documentary evidence. Court must be satisfied, beyond reasonable doubt
that there has been no tampering

30
1975 AIR 1778
31
1986 AIR, SC 3
32 th th
On 5 Feb, 2010 judgment available on < http://indiankanoon.org/doc/276737/> (accessed on 11 Jan 2014)

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4. The statement must be relevant according to the rules of Evidence Act.

5. The recorded cassette must be carefully sealed and kept in safe or official custody.

6. The voice of the speaker should be clearly audible and not lost or distorted by other
sounds or disturbances.

From the above mentioned Conditions and from rule 419A of the Telegraph Act it is clear
that the admissibility of the intercepted evidence depends on the two main factors which
are:
i. The stored intercepted communication which is used as evidence should be genuine
and is free from tampering or mutilation.
ii. The conduct of the authorities should be extremely careful, honest and strict while
intercepting communication.
4.3. Admissible even illegally obtained

It must be noted that in certain cases the Court is not concerned about the manner of
obtaining the evidences. How the evidence has been obtained will not act as an obstacle to
the court accepting it. It is no bar to admissibility of evidence that evidence has been
obtained by illegal means. Starting from the early common law position in relation to the
admissibility of evidence highlighted the relevance of the evidence rather than how it was
obtained. For example, In R v Leatham33 we find the oft-quoted statement of Crompton J.,
"It matters not how you get it; if you steal it even, it would be admissible".

In Maghraj Patodia v. R.K. Birla34, the Supreme Court ruled that if a document was obtained
by illegal means, it is not a bar to its admissibility, provided that its relevance and
genuineness are proved. Again in R.M. Malkani v. State of Maharashtra35, the Supreme
Court held that There is warrant for the proposition that even if evidence is illegally
obtained it is admissible. This view was endorsed by the Supreme Court in State (N.C.T. of
Delhi) v. Navjot Sandhu @ Afsan Guru36 i.e. the parliament attacks case. In which The High
Court ruled that intercepted telephone calls could not be used as evidence to prove charges
under the Prevention of Terrorism Act (POTA), if the interception procedure laid out by the
Act was not followed and that due "care and circumspection" would have to be exercised
before admitting the intercepts. The Court observed, "It will be open to the accused to raise
objections against the legality and admissibility of the evidence." The Supreme Court then
set aside the Delhi High court order and accepted the Delhi police's argument that since the
calls were intercepted before the anti-terrorism law was invoked against the accused, the

33
(1861) 8 Cox C.C. 498 at p. 501
34
1971 AIR 1295
35
Ibid 26
36
2005 judgment is available on < http://indiankanoon.org/doc/1769219/> ( accessed on 12 January 2014)

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evidence was admissible under POTA. Geelani and Afsan Guru were convicted mainly on the
strength of this unreliable phone tap evidence.

4.4. Privileged Communications

Where, statutes and the precedents laid down the procedure for the interception of the
communication the law also protect our privacy in communication by restricting the use of
certain communication as evidence in other words by taking away the evidentiary value of
certain communications.

The Section 12237 of the Evidence Act forbids married couples from disclosing any
communications made between them during marriage without the consent of the person
who made it. This however, does not apply in suits between married persons, or
proceedings in which one married person is prosecuted for any crime committed against
the other.

This rule was applied in a case before the Kerala High Court, T.J. Ponnen vs M.C. Varghese38
where a man sued his son-in-law for defamation based on statements about him written in
a letter addressed to his daughter. The trial court held that the prosecution was invalid since
it was based on privileged communications between the couple. This was upheld by the high
court. The petitioner had attempted to argue that it was immaterial how he gained
possession of the letter. The high court disagreed with this contention holding that this
would defeat the purpose of section 122.

Similarly section 126 forbids barristers, attorneys, pleaders or vakils from disclosing,
without their clients express consent any communication made to him in the course and
for the purpose of his employment as such barrister, pleader, attorney or vakil... or to state
the contents or condition of any document with which he has become acquainted in the
course and for the purpose of his professional employment or to disclose any advice given
by him to his client in the course and for the purpose of such employment.
As with section 122, this privilege also comes with exceptions. Thus, the following kinds of
communications are exempted from the privilege:

1. any communication made in furtherance of any illegal purpose,

2. any fact observed by any barrister, pleader, attorney or vakil, in the course of his
employment as such showing that any crime or fraud has been committed since the
commencement of his employment.

37
Section 122 in The Indian Evidence Act, 1872 Communications during marriage.- No person who is or has been
married shall be compelled to disclose any communication made to him during marriage by any person to whom
he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who
made it, or his representative in interest, consents, except in suits between married persons, or proceedings in
which one married person is prosecuted for any crime committed against the other.
38
1966 AIR 1967 Ker 228, 1967 CriLJ 1511

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Section 127 extends the scope attorney-client privilege to include any interpreters, clerks
and servants of the attorney or barrister. They are also not permitted to disclose the
contents of any communication between the attorney and her client.

Section 129 enacts a reciprocal protection and provides that clients shall not be compelled
to disclose to the court any confidential communication which has taken place between
him and his legal professional adviser.

Section 131 of the Evidence Act further cements the legal protection afforded to married
couples, attorneys and their clients by providing that No one shall be compelled to produce
documents in his possession, which any other person would be entitled to refuse to produce
if they were in his possession unless that person consents to the production of such
documents.

Note that these privileges do not limit the ability of the state to intercept communications
they merely negate the evidentiary value of any communications so intercepted.
5. Scenario in United States

The United States of America also follow the exclusionary rule of evidence39. Initial case of Roy
Olmstead v. United States of America40 , where the doctrine adopted by Justices Holmes,
Brandeis, Butler and Stone was that surveillance without trespass and without the seizure of any
material fell outside the constitutional ambit which leads the interception constitutionally legal.
But then this case was over ruled by the Katz v. United States41 The Court declared the
evidences obtained through tapping are inadmissible as they violates the Fourth Amendment of
the Constitution(right to privacy) and held that the wire tapping of any individual should be
warranted, judicially sanctioned and supported by probable cause. This clarify that the attention
has been given to the right to privacy enshrined in the American Constitution, citizens in that
nation being paranoid about State intervention in their lives and civil liberties. Interception of
communication is not illegal provided prior Court sanction has been granted.

Every State in the USA has its own laws that lay down procedures relating to telephone tapping.
At the Federal level the Crime Control and Safe Streets Act of 1968 (Wire Tap Act 1968),
prohibits the willful interception of telephone communication by means of any electronic,
mechanical, or other device without an applicable exemption42. Federal statutes do not enjoy

39
The Exclusionary Rule prevents the government from using most evidence gathered in violation of the United
States Constitution. It applies to evidence gained from an unreasonable search or seizure in violation of the of the
defendant's constitutional rights The principle is based on the theory that it is a central function of the courts to
encourage lawful action by the State; available on http://www.law.cornell.edu/wex/exclusionary_rule (accessed
on 12th January 2014)
40 th
277 U.S. 438, 4 June 1928

41
Ibid 10
42
Section 2510 of Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.

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superiority over State laws unless the call or the tap crosses state lines and this has meant that
every State has enacted guidelines with respect to telephone tapping. While the U.S. federal law
only requires one-party consent, many states have accepted different laws. In some states all
parties must give their consent or at least be notified that the call is about to be recorded.43

The U.S. federal law allows interception of communication through recording of phone calls and
other electronic communications with the consent of at least one party to the call. A majority of
the states and territories have adopted wiretapping statutes based on the federal law, although
most have also extended the law to cover in-person conversations. 38 states and the D.C. permit
recording telephone conversations to which they are a party without informing the other parties
that they are doing so. 12 states require, under most circumstances, the consent of all parties to
a conversation. Those jurisdictions are California, Connecticut, Florida, Illinois, Maryland,
Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania and Washington.44

5.1. Exception from Rule against Interception

As previously said that the federal Omnibus Crime Control and Safe Streets Act of 1968
prohibits the willful interception of telephone communication by means of any electronic,
mechanical, or other device without an applicable exemption.45 There are two principal
exceptions:

5.1.1. Federal Exception (Consent)

In the absence of more restrictive state law, it is permissible to intercept and record a
telephone conversation if one or both of the parties to the call consents. Consent means
authorization by only one participant in the call; single-party consent is provided for by
specific statutory exemption under federal law.46

5.1.2. "Business telephone" exception

This exception generally allows monitoring of calls and taping over an extension phone
which is both provided to a subscriber in the ordinary course of a telephone company's
business and is being used by that subscriber in the ordinary course of its business. This
provision generally permits businesses to monitor the conversations of their employees,

43
See pg. 14 of Legal Opinion on Interception of Communication by Oxford Pro Bono Publico, January 2006 ;
available on < http://www2.law.ox.ac.uk/opbp/OPBP%20Intercept%20Evidence%20Report.pdf>; (accessed on
th
13 January 2006)
44
United States Telephone Recording Laws; available on < http://www.callcorder.com/phone-recording-law-
th
america.htm> (accessed on 13 Jan 2014)
45
Ibid 42
46
Sec. 2511(2)(c),(d) of the of Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.

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including personal conversations.47

5.2. Evidentiary Issues

Individuals and businesses that make surreptitious recordings often do so with the
expectation that the recordings will be useful as evidence. Such recordings are subject to
significant barriers to use as evidence.

First, if made in violation of either federal or state law, the recordings will almost
certainly be inadmissible.
Second, even if lawfully recorded, the tapes will be exempt from the hearsay rule
and will not, in most jurisdictions, be usable for impeachment. Anyone
contemplating an evidentiary use of surreptitious recordings should consult with an
attorney prior to making the recording.48

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."49 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.

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, had liberalized the
telephone tapping procedures and was clearly aimed at making wire tapping an easier
and less procedure-ridden operation. It extended the authority of the Federal Bureau of
Investigation [FBI] to spy on Americans for "intelligence" purposes, as opposed to
investigating criminal activity. The most crucial aspect was the fact that under Section
218, the FBI could 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], to find evidence of crime.50

6. Conclusion

The interception of communication at the first look seems valid and the need of society to
restrict the evil motives of the criminals and terrorists but it becomes unconstitutional when
interception activity took away the right to privacy of an innocents communication. This brings

47
Sec. 2511(2) (a) (i) of the of Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.
48
United States Telephone Recording Law; available at < http://www.callcorder.com/phone-recording-law-
th
america.htm>; accessed on 13 Jan 2014
49
UNITED STATES of America v. Francisco Javier LEPEZ, 976 F.2d 738
50
See India: Privacy in Peril posted by Bhairav Acharya at Jul 12, 2013; available at http://cis-india.org/internet-
governance/blog/frontline-cover-story-july-12-2013-bhairav-acharya-privacy-in-
th
peril?searchterm=interception+of+communication+india+ ; (accessed on 13 Jan 2014)

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us to the question that, should States imperil the liberty and the right to privacy of entire
populations in order to restrict the evil in the society.

The Supreme Court in Malkani case held the interception constitutionally valid and also
provided that the telephonic conversation of an innocent citizen will be protected against the
wrongful or illegal tapping of the conversation. The protection is not for the guilty citizen
against the efforts of the police to protect the law and prevent corruption of public servant.
Further in PUCL case the court came up with a point that the concept of right to privacy is too
broad and moralistic to define and its infringement differ from case to case. These two
judgments in relation to the right to privacy provided the scope for the interception of
communication to develop by putting the reasonable restricting on the right to privacy.

The Supreme Court Further in PUCL case provided that Unless a public emergency has
occurred or the interest of public safety demands, the authorities have no jurisdiction to
exercise the power of interception under Section 5(2) of the Telegraph Act. The court clarified
for the specific circumstances in which the interception can be exercised by the law
enforcement agencies. The court also interpreted the meaning of public emergency and public
safety mentioned in the section 5(2) to make the picture clearer.

The safeguards procedure are stated in Rule 419A of the Telegraph Rules which provide for the
detailed step by step procedure form the order of interception from the Government to the
destruction of intercepted material. But these guidelines have hardly served the purpose as the
court in certain cases admitted the evidences even it is obtained illegally. In the case of Maghraj
Patodia v. R.K. Birla, the Supreme Court ruled that if a document was obtained by illegal means,
it is not a bar to its admissibility, provided that its relevance and genuineness are proved.

Generally speaking, the state has no right to invade the privacy of an innocent individual.
However, there may be certain extraordinary situations in which the state may be allowed to
invade the privacy of an individual. Certainly, the Supreme Court has endorsed the view that
reasonable restrictions can be placed on the right to privacy. In State of Maharashtra v. Bharat
Shah51, it was stated that the right could be curtailed in accordance to the procedure validly
established by law.

51 th
on 1 September, 2008 Judgment available on http://indiankanoon.org/doc/698472/ (accessed on 13 Jan 2014)

Article @ www.indianbarassociation.org

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