Notes

Allowing illegally intercepted messages as evidence violate fundamental rights

Contact Counsellor

Last Updated20/01/2022

Delhi High Court has said that if illegally intercepted messages or audio conversations are permitted as evidence, it would lead to “manifest arbitrariness” and promote “scant regard” to the procedure and fundamental rights of the citizens.
HC Justice said that rules framed under Telegraph Act require that the order granting permission to intercept telephone conversations is to be forwarded to the review committee within seven days of the order.

In response to the finding by a global collaborative investigative project that Israeli spyware Pegasus was used to target at least 300 individuals in India, the government has claimed that all interception in India takes place lawfully.
Communication surveillance in India takes place primarily under two laws — the Telegraph Act, 1885 and the Information Technology Act, 2000.
While the Telegraph Act deals with interception of calls, the IT Act was enacted to deal with surveillance of all electronic communication.
A comprehensive data protection law to address the gaps in existing frameworks for surveillance is yet to be enacted.

Historical Background :
It passed in 1883,
It was intended to give the Central Government power to establish telegraphers the use of wired and wireless telegraphy, telephones, teletype, radio communications and digital data communications.
Telegraph was first installed in 1851 and a trans-India telegraph was completed three years later in 1854.
About the Act :
It governs the use of wired and wireless telegraphy, telephones, teletype, radio communications and digital data communications.
It gives the Government of India exclusive jurisdiction and privileges for establishing, maintaining, operating, licensing and oversight of all forms of wired and wireless communications within Indian territory.
It also authorizes government law enforcement agencies to monitor/intercept communications and tap phone lines under conditions defined within the Indian Constitution.
Section 5(2) of the act allows central and state governments to prevent the transmission of messaging during a “public emergency or in the interest of public safety”, or “in the interests of the sovereignty and integrity of India, the security of the state”.

Section 69 of the Information Technology Act and the Information Technology (Procedure for Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 were enacted to further the legal framework for electronic surveillance.
However, the scope of Section 69 the IT Act is much broader and vague than the Telegraph Act as the only condition precedent for engaging electronic surveillance is for the “investigation of an offense”.
These provisions are problematic and offer the government total opacity in respect of its interception and monitoring activities.

There is a need for reforms in the Indian surveillance regime, which should incorporate ethics of surveillance and considers the moral aspects of how surveillance is employed.
In this context, there is a need for a holistic debate before the Personal Data Protection (PDP) Bill, 2019 is enacted.
So that the law can be tested against the cornerstone of fundamental rights and growth of the digital economy and security of the country can be balanced.

In Public Union for Civil Liberties v Union of India (1996), the SC pointed out lack of procedural safeguards in the provisions of the Telegraph Act and laid down following observations:
Tapping is a serious invasion of an individual’s privacy.
It is no doubt correct that every Government exercises some degree of surveillance operation as a part of its intelligence outfit but at the same time citizen’s right to privacy has to be protected.

The Supreme Court clarified that even where the law clearly defines the situations in which interception may take place, this law must have procedural backing to ensure that the exercise of power is just and reasonable.
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 highhanded interference by tapping the conversation.
The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants.
It must not be understood that the Courts will tolerate safeguards for the protection of the citizen to be imperiled by permitting the police to proceed by unlawful or irregular methods.
In the present case, there is no unlawful or even irregular method in obtaining the tape- recording of the conversation.
Sometimes the right to privacy can be restricted if there is an important countervailing interest which is superior to it and if there is a compelling state interest to be served.

These days call and voice tempering is very common, there might be a possibility of false evidence.
Presenting digital media as evidence directly conflicts with the provisions of IPC and CrPC.
Deep fake technology is evolving everyday and its counter measures progressing slowly so there is a need to form a proper categorisation of what media can be used as evidence.

Right to privacy is a part of personal liberty which is provided under Article 21 of the Indian Constitution.
A person has also the right to safeguard his privacy.
There are some cases when the government has to act contrary to the fundamental rights of a person. One of them is interception of the telephone.
This is a very major step taken by the government and to intercept a telephone of an individual, reasonable grounds to take such a step should be mentioned as it is a matter of someone’s privacy.
Interception of telephone is not in violation of right to privacy only if it is done for the interest of public or in a case of emergency, as stated under section 5(2) of the Telegraph Act.
Interception of telephone cannot be done in any case except the two which are mentioned above.