Is Call Recording Legal Or Not In India?
Introduction
Nowadays telephone conversation is a most important part of human life because they share important conversations by mobile phone such as family, business, meetings, location, etc. by conversation. The technology of call recording is available on every smartphone. Still, many people use call recording as a weapon for earning and giving threats to innocent people in society. In this article, we shall discuss the legality of call recording with legal provisions or judgment given by the court.
What Is Call Recording and Conflict
Phone tapping or call recording means when a person or public official records the voice conversation of other person secretly without their consent. According to Article 21 of the Indian constitution if any call is recorded without the consent of the party it will violate of Right to Privacy.
In a landmark case, People’s Union Of Civil Liberties vs Union Of India & Anr on 13 March 2003 in this case the Supreme Court of India held that if any conversation is recorded secretly without the consent of the party is a grave violation of the right to privacy of an individual. This case challenged the constitutional validity of section 5(2) of the Indian Telegraph Act, 1885. This section gives power to the state or central to record those telephone conversations that are purely against the sovereignty and security of the nation. the court also gives detailed guidelines to check for arbitrariness when a telephone is tapping.
1. The orders for call recording must be issued by the home secretary of the central government and state government only.
2. Proper records need to be maintained by the government concerning the number of people to which the call recordings were disclosed.
3. How many numbers of copies were made, the extent of transmission of the data, etc. when the purpose of call recording will complete the intercepted data must be deleted immediately without any further delay.
4. Nevertheless the two main conditions i.e. public emergency and interest of public safety need to be satisfied before intercepting telephone conversations.
Recording Personal Conversations of Individual
Recording individual conversations without his/her consent is strictly forbidden by law in India because it violates an individual fundamental right guaranteed under Article 21 of the Indian Constitution right to privacy. The consent of both parties is necessary to record a conversation. If any party secretly records the conversation of another it will be a violation of the right to privacy. But a recording of personal conversations for general public interest it will be valid or will work as a piece of valid evidence in a court of law.
Recently the honorable Chattisgarh High Cout held that recording conversation without person’s knowledge or consent amounts to violation or right to privacy under Article 21 of the Indian Constitution. Title: Aasha lata soni v Durgesh Soni
The Legality of Call Recording In India
Definition of an electronic record, section 2(1)(t) of the Information Technology Act, 2000 Provides the meaning of “electronic record” which means data, record, or data generated, picture or sound stored, received or sent in an electronic form. Legalizing call recording if any call is recorded without individual consent will amount to a violation of a fundamental right guaranteed under Article 21 of the Indian constitution’s right to privacy. Law enforcement authorities and the judiciary also failed to convict a person who commits cheating, threats, or fraud using call recording because call recording in India is not forbidden by law except ill intention. All over the world, many people face the problem recording of personal conversations without his/her consent. imagine you and I are talking to each other I secretly record your personal messages and you don’t know your call is recorded after that I use your personal conversation for any benefits you can imagine how will you feel.
Admissibility of Call Recording in Court
In the modern era electronic recording is used as evidence in both case civil and criminal matters, what’s very important is its admissibility factor. section 65B of the Indian Evidence Act, 1872 provides the admissibility of electronic records.
Condition:
1. The recorded conversation must be relevant to the case.
2. Reliability of evidence: the court has full power to decide the degree of reliability of call recording produced before the court if the court finds an alteration, editing, or cutting in call recording therefore court will not accept that type of recording as a piece of evidence.
3. Corroborative evidence: we can use call recording as corroborative evidence submitted in court by either party of the conversation.
4. Accurate account: the court says that before submitting the call recordings, the accuracy of time, place, and recording must be proved by competent witnesses and must be related to the matter. The call recording must be kept sealed in the custody of a competent authority and prevent them from being manipulated by others.
Important case laws:
S. Pratap Singh v the State of Punjab (1964)
In this case, the Supreme Court accepted a telephone recording of a conversation between two parties after an examination of the evidentiary value of a tape-recorded conversation between two parties. The parties claimed the recording was obtained illegally but in this case, the court accepted a telephone recording and said that it helped in the conviction process.
K.S. Puttuswamy v. Union of India (2018)
In this case, the Supreme Court of India laid down the principles of proportionality and legitimacy to determine the legality of the call recording order issued by the government and also noted that the order of call interception of any individual should be issued by a government official on the grounds of public safety. In case there is no risk to the public, such an order issued by a government official amount to a violation of the right to privacy.
Laws Regarding Call Recording in India
There are many laws available in India for call recording when a person produces any call recording before the court it will be valid evidence. Section 2 of the Information Technology Act, 2000 defines the meaning of electronic records, which includes sound records, sent or received in electronic form. Section 2(1)(t) of the Information Technology Act, 2000 clearly says if any electronic evidence is produced before any court as evidence it will be valid evidence. Section 5 of the Indian Telegraph Act, 1885 gives the power to the government to take possession of licensed telegraph and to order interception of messages. This Act allows only the central government and state government to record the messages for public interest such as safety concerns. Otherwise, no one can record any messages of someone. Section 65B of the Indian Evidence Act, 1872 deals with the essential conditions for the admissibility of electronic evidence. Section 85B of the Indian Evidence Act,1872 deals with the authenticity and alternation of recorded electronic evidence.
One-Way and Two-way Consent
The term consent is divided into two main parts i.e. one-way consent and two-way consent for call recording. As the names themselves suggest one way means when a person agrees to the call recording. Two-way refers to both parties agreeing to call recording. the authenticity of electronic call recording is based on consent. There are many countries where two-way consent is necessary for recording calls such as California, Massachusetts, and Washington. Alabama, Hawaii, Texas, and West Virginia are a few states that require only one-way consent. Overall consent is necessary when you record calls.
Conclusion
In this modern era, the growth of technology so fast, and the technological sector has made it both beneficial as well as risky our personal affairs over telecom services. Both the central and the state governments have full power to record calls under section 5(2) of the Indian Telegraph Act, 1885. Section 65B of the Indian Evidence Act, 1872 provides admissibility of electronic records. Moreover, we have discussed one-way and two-way consent of parties also important judgments.
