The Legal Position of Telephone Tapping

The above two quotes highlight the contentious issue of telephone tapping which has remained with the legal system for a very long time, and has been the topic of a never-ending debate between law enforcement officials and civil liberties activists. In such cases the court has to face various questions regarding admissibility, nature and evidentiary value of such a tape- recorded conversation. [1]

Though our legal system has been witness to a slew of telephone tapping cases, no clear trend has emerged so far. Telephone tapping in India has gained notoriety [2] ; thanks in part to numerous political scandals that have emerged over the past few decades. All this also brings into focus the right to privacy- a term that seems to hold very little meaning in our modern world of hidden cameras, electronic bugging of homes, telephone-tapping and increased surveillance of e-mail and the Internet. [3]

The present paper deals with three issues. First, the nature and admissibility of telephone tapping as evidence will be described. Next, the evidentiary value of this recorded conversation will be discussed. Lastly, the propriety and legality of telephone tapping with regard to its impact on fundamental rights will be seen.

1. Nature and admissibility of telephone tapping

Is a taped conversation a document

After coming into force of the Information Technology Act, 2000, the traditional concept of evidence stands totally reformed. Sections 2(r) and 2(t) of this Act is relevant in this respect which defines information in electronic form as information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar device. Section 92 of this Act read with Schedule 2 amends the definition of ‘evidence’ as contained in Section 3 of the Evidence Act. [4]

The Supreme Court has observed that, like a photograph of a relevant incident, a contemporaneous tape record of a relevant conversation is a relevant fact admissible under Sections 7 [5] and 8 [6] of the Act. The imprint on the magnetic tape is the direct effect of the relevant sources. Thus, if a statement is relevant, an accurate tape record of the statement is also relevant and admissible. [7]

Is such a “document” admissible?

The Indian Telegraph Act of 1885 was enacted to govern all aspects relating to the usage of telephones in India. Section 5(2) enables the Governments to intercept communications in interest of security and prevention of offences. The Act also provides for safeguards against illegal interference in the telephone mechanisms. Section 25 states that “any person intending to intercept…with the contents of any message, damages, remove, tampers, with or touches any battery…telegraph line, post…be punished…”

In the case of S. Pratap Singh v. State of Punjab [8] , the Supreme Court allowed the tape record of a telephonic conversation between the Chief Minister’s 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.

The Apex Court in Yusufalli Esmail Nagree v. State of Maharashtra [9] , considered various aspects of the issue relating to admissibility of tape recorded conversation. This was a case relating to an offence under section 165-A of Indian Penal Code and at the instance of the Investigating Agency, the conversation between accused, who wanted to bribe, and complainant was tape recorded. The prosecution wanted to use this tape recorded conversation as evidence against accused and it was argued that the same is hit by Section 162 of the Code of Criminal Procedure as well as Article 20(3) of the constitution. [10] In this landmark decision, the court emphatically laid down in unequivocal terms the following principles:

a) The contemporaneous dialogue, which was tape recorded, formed part of res gestae and is relevant and admissible under Section 8 of the Act. [11]

b) The contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under Section 7 [12] of the Act.

c) Since such a statement was made to police during investigation and, therefore, cannot be held to be inadmissible under Section 162 of the Criminal Procedure Code.

d) One of the features of magnetic tape recording is the ability to erase and re-use the recording medium. Therefore, the evidence must be received with caution. The court must be satisfied beyond reasonable doubt that the record has not been tampered with.

The most recent case of R.M. Malkani v. State of Maharashtra [13] , in fact appreciates the method, terming it a mechanical eavesdropping device.

Conditions of Admissibility

As regards the conditions of admissibility, the most prominent is the case of Ram Singh v. Col. Ram Singh [14] , where the following conditions were pointed out by the Apex Court for admissibility of tape recorded conversation:

a) the voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. Where the maker has denied the voice it will require very strict proof to determine whether or not it was really the voice of the speaker.

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

c) 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 context and, therefore, inadmissible. In fact, in the most recent case of Tukaram S. Dighole v Manikrao Shivaji Kokate [15] , 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. [16]

d) The recorded cassette must be carefully sealed and kept in safe or official custody. [17]

e) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbance. [18]

2: Evidentiary Value of Recorded Convrsation

The next question regarding evidence of the tape-recorded information 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. [19]

The point whether such evidence is primary and direct was dealt in the Presidential Election case. [20] 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. The Court utilized the conversation to show that a “witness might be contradicted when he denies any question tending to impeach his impartiality” as per Section 153 of the Evidence Act, and thus observed that the tape itself would become the primary and direct evidence of what has been said and recorded. [21]

This view was reiterated by the Apex Court in the Malkani [22] 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. The same case expressed that such recorded conversations are also vital for the purposes of corroboration and cross-examination in order to test the veracity of the witness. [23]

Referring to the proposition of law as laid down in the Presidential Election case, a three judges bench of the Apex Court in the case of Ziyauddin Burhanuddin [24] propounded that the use of tape recorded conversation was not confined to purpose of corroboration and contradiction only, but when duly proved by satisfactory evidence of what was found recorded and of absence of tampering, it could be used as substantive evidence. Giving an example, the Court pointed out that when it was disputed or in issue whether a person’s speech on a particular occasion, contained a particular statement there could be no more direct or better evidence of it than its tape recorded, assuming its authenticity to be duly established. The Court also considered the value and use of transcripts and expressed the view that transcript could be used to show what the transcriber has found recorded there at the time of transcription and the evidence of the makers of the transcripts is certainly corroborative because it goes to confirm what the tape record contained. [25]

3. Legality and Propriety- Impact on Fundamental Rights

Though our Constitution does not expressly recognize the right to privacy, several judicial interpretations [26] recognized that there is a right of privacy implicit in the Constitution under Article 21.

The Yusufalli Esmail Nagree [27] case noted clearly that a recorded conversation though procured without the knowledge of the accused, is not elicited by duress, coercion or compulsion nor extracted in an oppressive manner or by force or against the wishes of the accused. Therefore the protection of the Article 20(3) was not available.

Even in the case of Malkani [28] , the 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.

However by the 1990’s, Opposition parties had alleged that their phones were tapped by Government machinery at the behest of the ruling party. All 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 this high profile case, the highest court in the land ruled that wiretaps constituted a “serious invasion of an individual’s privacy”. The Supreme Court recognized the fact that the right of privacy is an integral part of the fundamental right to life. A person talking on the telephone is exercising his or her right to freedom of speech and expression. [29] Hence, telephone tapping would also infringe Art 19(1) (a) unless it came within the restrictions on this right set out in Art 19(2).

Significantly, the Court, while not wanting to strike down the system of phone tapping altogether, softened the harshness of the law by introducing guidelines that were to be followed by the government. [30] The guidelines state as follows:

a) If a telephone needs to be tapped, then the home secretary of the Union government or the respective state government can issue an order to this effect.

b)Strong reasons have to be specified in order to issue such a directive.

c)Such an order shall be in force only for two months unless there is another order, which will give the home secretary the right to extend it by another six months only.

d) The Supreme Court, however, does not give the home secretary the ultimate power and states clearly in the same judgment 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.

e) Further, the court held that records relating to phone tapping should be used and destroyed within two months.

f) The order, which will be passed by the home secretary, shall be specific in nature. The invasion of privacy shall be minimum in nature and a strong justification to the act shall be mentioned.

g) Constitutional requirements have to be satisfied and unlawful means of telephone tapping shall be avoided at any cost. [31]

However, the PUCL case seemed mild compared to the Prevention of Terrorism Act [POTA] in 2002. [32] One significant feature of POTA is Section 38 which refers to the application for authorization interception of communication by the investigating officer when he believes that such interception may provide evidence of any terrorist act. Also, Section 45 proclaims, “…the evidence collected through the interception of wire, electronic or oral communication…shall be admissible as evidence against the accused in the Court during the trial of a case.” This means that all the ‘illegally’ obtained evidence under the new telephone tapping provisions would be allowed as evidence in law courts. [33]

In the case of State (N.C.T. of Delhi) v. Navjot Sandhu @ Afsan Guru [34] , the Delhi police had claimed that Shaukat was in constant touch with Geelani, as evident by their tapped conversation just a day before the attack. However, the lower court rejected it as the procedures specified under POTA had not been followed. As far as Afsan Guru was concerned, the police alleged that she had spoken to her husband for 49 seconds some days after the attack. However, an auditory and voice spectrograph analysis of the taped conversation revealed that it was actually a two and a half minute call. It was thus obvious that an interested party was responsible for tampering with the phone tapped recordings and this discrepancy weakened the case of the prosecution. [35]

The Supreme Court accepted the Delhi police’s argument that since the calls were intercepted before POTA was invoked against the accused, the evidence was admissible. Geelani and Afsan Guru were convicted mainly on the strength of this unreliable phone tap evidence as it clearly was corroborated by other circumstances and incidents.

Conclusion

Human Rights activists and liberal intellectuals believe that privacy is too important a right to surrender to the State without a fight. [36] 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. Jurists have criticised Ray, J’s opinion by noting that he had refused to attach the respect due to the means by which the end could be achieved and this makes the judiciary system and the police system partners in crime.

The nod 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.

In fact even the PUCL case which gave these guidelines is not far from criticism. The major criticism of the decision was the system of ‘review’ that was set up. Prominent lawyers dismissed it as “enabling those who authorise taps to review their own orders with a conclave of colleagues…being arbitrary, secretive and an insult to the protection of privacy and civil liberties.

More recently, the shoddy manner in which the Delhi police conducted the investigation in the Parliament attack case; the recent allegations made by Amar Singh allegations, has raised many eyebrows.

There is also a growing body of opinion both in India and abroad that supports telephone tapping and describes it as a necessary evil. [37] 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. Governments feel that this is the most effective method to combat the menace of terrorism and citizens are asked to forego some of their liberties in the interest of the well being of the nation.

The UK Government in particular has put across a strong case for telephone tapping and has made it clear that this was the primary method used to catch drug peddlers, arms smugglers and terrorists. This view was brought out by Lord Nolan, who, while delivering the judgment in the Sultan Khan case in 1996 had this to say- it would be a strange reflection on our law if a man who admitted his participation in the illegal importation of a large quantity of heroin should have his conviction set aside on the ground that his privacy had been invaded.

Both sides to the argument have valid reasons for clinging on to their views on the subject. 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.