The Constitution of India provides with certain fundamental rights under Part III. The rights that are stated under are not to be violated or infringed except under certain reasonable restrictions. Right to privacy is not enumerated as a fundamental right in Indian Constitution. But it has been interpreted from Article 21 and other such articles by the Supreme Court in several cases. For example, in Kharak Singh v. State of Uttar Pradesh[1], the majority opinion argued that the privacy could be inferred from existing fundamental rights. With the increase in various cases regarding privacy being a fundamental right, the Supreme Court has reiterated that the right to privacy is an aspect of the personal liberty and is bound to be a fundamental right.[2]
India being the signatory to the International Convention of Civil and Political Rights, has the obligation to oblige with the rules as stated under Article 51-C of the Indian Constitution. Article 17 of ICCPR states the right of every person to be protected against arbitrary or unlawful interference with his privacy, family, home or correspondence as well as against unlawful attacks on his honour and reputation.[3]
Breach of privacy has reached different arenas in the country with developments in science and technology. These modern advances tend to be at logger heads with the basic fundamental rights and principles. Humans find new ways to intrude into the privacy of the individuals through these scientific inventions and there is need to regulate this kind of activities by the government. One such privacy invasion is the interception or recording the telephonic conversations or any such exchange of information. This is called telephone tapping.
Telephone tapping means recording or listening to the calls of any person or persons without their knowledge in order to obtain any information from them. The Union and State government has powers under the Seventh Schedule of the constitution to regulate laws regarding telephones as it comes under the field of science.[4]
With the advent of the panoptical kind of social control within the society, the realms of privacy are difficult to be upheld. The greater surveillance measures taken by the government makes them an absolute authority in governing the activities of the people. In case of telephone tapping, the government may obtain any information of any person under suspicion by recording their calls.
While certain people condemn this act as a violation of fundamental right, the government is of the opinion that these fundamental rights are not absolute. There are certain reasonable restrictions which confers the state or the government with certain powers to exercise such restrictions in case of restoring public order.
The rise in the incidents which invaded the privacy of the individuals reflected upon the People’s Union for Civil Liberties case[5]. In the particular case, it was held the laws regarding the electronic tapping must be provided with enough procedural laws with respect to the interception of the messages.
Legal guidelines in India for telephone tapping:
Section 5(2) of the Indian telegraph act provides with guidelines for the central and state government regarding the lawful interception of communication. This must qualify the basic test of constitutionality.
1. An order for legal interception can be given only by the Home Secretary of the Union Government or the State Government.
2. Such order should be issued only for proper reasons which are of importance of public safety and in occurrence of public emergency.
3. These orders shall be in force only for 2 months.
4. In these cases, the Supreme Court does not provide the home secretary with ultimate powers and states regarding the orders issued and the same is open to review by the law.
5. The records relating to telephone tapping must be destroyed within 2 months.
For regulatory purposes, the Indian Telegraph (Amendment) Rules, 2007[6] was brought in which provides with certain directions regarding interception of calls and telephonic data. These directions did not provide with necessary remedies.
Available remedies:
Procedural safeguards:
1. Aggrieved persons can always file a FIR in the local police station in case of any such unauthorised invasion of privacy.
2. They can approach the National Human Rights Commission or the State Human Rights Commission with the complaint when they are aware of such tapping. The complaint can be given in person or online.
Substantive safeguards:
1. When the phone tapping does not follow proper guidelines or does not comply with the reasons stated in the constitution, then a writ petition can be filed in the Supreme Court for issuing mandamus to the authorities to act accordingly.[7]
Laws that are made regarding the virtual data and information has to be regulated and restructured in such a way that it does not affect the basic fundamental rights and be more updated and applicable to the current trends of evolving technology. The laws relating to telephone tapping need to be more procedural and must lay down guidelines and circumstances under which the calls can be recorded.
Future expected solutions:
In 2018, a Srikrishna Committee was formed in order to release a draft of the personal data protection (PDP Bill). If the bill is enacted in its current form, individuals can seek proper due redressal for surveillance issues. The bill recognises any restrictions on actions due to the fear of surveillance and that are not reasonably expected as too harm for which individuals can seek judicial remedy.
The PDP Bill also enumerated provisions for establishing a data fiduciary who engages in internal assessment of the any undertaking of new technologies or usage of sensitive personal data.
The data fiduciary is defined in the bill which means any person which includes a state, company or juristic entity who determines the purpose and meaning of processing of personal data.
The laws of privacy are undergoing recurrent changes with changes in the arena of technology. Newer crimes and invasions are emerging as a result of this. The judiciary and law makers have a greater responsibility in keeping the laws in consistent with the existing issues.
General public and beneficiaries must be made aware of the measures taken by the government regarding the data protection and in no way must the government agencies take the power in their hand and exploit the data of the people.
Edited by Pragash Boopal
Approved & Published – Sakshi Raje
Reference
[1]AIR 1963 SC 1295.(Kharak Singh v. State of UttarPradesh)
[2] R.Rajagopal v. State of Tamil Nadu (AIR 1995 SC 264)
[3] https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx
[4] M.P.Jain,Indian Constitutional Law,7th edition
[5] AIR 2003 SC 2363
[6] Subs, by G.S.R. 193 (E), dated 1.3.2007 (w.e.f. 12.3.2007).
[7] LawTeacher. November 2013. The Legal Position of Telephone Tapping. [online]. Available from: https://www.lawteacher.net/free-law-essays/constitutional-law/the-legal-position-of-telephone-tapping-constitutional-law-essay.php?vref=1
