ARTICLES RELATED TO WIRETAPPING - Lexera Publication

• Written by: Khushi Mahesh Dewani

• College: SNDT Women’s University, Mumbai

• Course: B.B.A., LL.B (3rd Year)(5th Semester)

Introduction

The process of secretly listening to someone’s phone conversation by fitting a special device totheir phone without being noticed is known as wiretapping. Wiretapping is cell phonetracking/tracing where someone’s whole data is accessed by using different software. Sometimesit leads to a breach of some fundamental rights.

Indian Perspective On Wiretapping

Wiretapping refers to clandestinely listening or recording a phone call of another person toextract information. In India wiretapping is also known as phone tapping. This can be doneofficially with permission from the concerned department. If this procedure is undertakenunofficially and unlawfully then it is considered illegal and as a result, the person is responsiblefor a breach of privacy. Under the Indian Telegraph Act 1885, the Central Government and theState Government both have the power to intercept telephones under some conditions.

The act of wiretapping affects some fundamental rights given under the Constitution of India.Article 21 of the Constitution, says that “No person shall be deprived of his life or personalliberty except according to procedure established by law.” 1The Privacy of an individual shouldbe protected.

Kinds

• Passive wiretapping: This type of wiretapping can only be done by the government byfollowing the proper course of action and it is authorized and legal.

• Active wiretapping: It is also known as an illegal interception. In this type of wiretapping the attachment is made to an unauthorized device to gain access to data. In such cases section 25 of the Telegraph Act, 1885 2states 3 years of imprisonment.

Procedure

• Police have this power at the state level. And,

• National Investigation Agency, Directorate of Signal Intelligence, Directorate of Revenue,Central Bureau of Investigation (CBI), etc. have this power in Central Level.

Legislations related to wiretappingIndian telegraph act 1885:

1 Constitution of India 1950, art 21

2 The Indian Telegraph Act 1885, sec 25

• According to this Act, wiretapping can be done by the central government and stategovernment only in extreme conditions which are threatening to public safety and for theprevention of incitement of an offence. Reasons should be mentioned for tapping by thecompetent authority.3

• Under Section 25 of this Act, punishment for up to 3 years must be sentenced for illegal wiretapping and extracting information.4

Information Technology Rules, 2009:

• It defines the term interceptions as the means of collecting information through aninterception device to misuse such information by monitoring the data, viewing thecontents of data, and diverting any data from its intended destination to anotherdestination.5

Indian Telegraph (Amendment) Rules, 2007:

• Wiretapping can be done only if the order is issued by competent authority authorised byGovernment.

• A committee constituted monitor and reviews all wiretapping as per law or not.6

Information technology Act 2000:

• Information Technology Act, 2000 provides legal recognition to the transaction donethrough the electronic exchange of information or electronic commerce transactions.7

Authorization:

• Wiretapping should be authorized by Rules of the Indian Telegraph (Amendment) Rules,2007.

1. The competent authorities of the Government of India can issue an order in the case of thecentral government.

3 Indian telegraph act 1885, sec 5(2)

4 Indian telegraph act 1885, sec 25

5 Information Technology Rules 2009, sec 2

6 Indian Telegraph (Amendment) Rules 2007, rule 419A

7 The Information Technology Act 2000, sec 4

2. The competent authorities of the Government of India can issue an order in the case of thestate government.

• In case of emergency,

1. An officer so designated can issue an order in such a situation.

2. In remote areas for operational reasons, prior approval must have obtained by the superiorauthorities at the central level and the state order level.

3. An order must be communicated whether approved or not within seven workingdays by the superior authority.

➢ Interception shall cease if the confirmation is not received within seven days from thecompetent authority.

• In 2021, the Indian Telegraph Right Way (Amendment) Rules, 2021 were notified by thecentral government.8

Prevention of misuse

• Wiretapping must be offered only in the case when there is no other way to collect theinformation.

• The interception renewal order should not exceed a total of 180 days.

• Any order issued for wiretapping by the superior authority must havereasons, and a copy of the same must be sent to a review committee within the stipulated seven days. At both thecenter level and the state level.

• Records pertaining to such directions should be destroyed in six months unless these arerequired further. Service providers are required to destroy these records within twomonths of discontinuance of interception.

• Directions for interceptions should contain the name and designation authorities. Thisprocedure is done to maintain transparency.

Related Case laws:

• PUCL v. UOI (1997)9: The PUCL, a civil rights NGO, challenged the validity of the 1951act and brought a case arguing that the fundamental right is violated by theRepresentation of People Act of 1951. This case was argued because it recognized theright to not vote, but it did not properly protect secrecy. They argued that the politicalcandidates were not bound to disclose any information not required under the law. The

8 Indian Telegraph (Amendment) Rules 2007, rule 419A(1)

9 People’S Union Of Civil Liberties vs Union Of India and Anr. 1996, AIR 1997 SC 568, JT 1997 (1) SC 288, 1996

(9) SCALE 318, (1997) 1 SCC 301, 1996 Supp 10 SCR 321, 1997 (1) UJ 187 SC

Apex Court held that wiretapping intrudes one’s privacy. The court observed that votershave the right to vote after evaluating each candidate and then make a decision on whomto vote for, as protected by the Constitution of India.

• Rayala M. Bhuvaneshwari vs. Nagaphanender Rayala (2007)10: In this case, thehusband was seeking a divorce based on the call recording. The High Court observed thattapping the phone of his wife was not permitted in the eye of law, it infringed the right ofprivacy of the wife. The evidence collected by such unlawful method must not bepermissible.

• K.S Puttaswamy v. Union of India: This case is the landmark judgment. This caseoverruled the all previous judgments. The court observed that wiretapping infringes thefundamental rights provided by the Constitution of India. This judgment was of this caserelied on Article 17 of the International Covenant on Civil and Political Rights, whichstates that the protection of privacy must be an interpretative tool for construing theprovisions of the constitution.

Conclusion

As long as criminals and terrorist will misuse technology for their evil motives, Governments allover the world will use technology to invade our Privacy. Wiretapping infringes the rightsprovided by the Indian Constitution. In India, telephonic conversations are protected by thecourts of innocent citizens not guilty citizens. To make sure that no misuse of power takes placecourt has described fair procedures to protect rights of citizens. The Indian POTA ( Prevention ofTerrorism Act), 2002 is the anti-terror legislation to curtail civil liberties and the most importantprovision of this law deals with wiretapping.

10 Rayala M. Bhuvaneswari vs Nagaphanender Rayala 200, AIR 2008 AP 98, 2008 (2) ALD 311, 2008 (1) ALT 613

Synopsis

The act of surreptitiously listening to or recording a phone call without the participants’ knowledge is known as wiretapping. It is a hotly debated issue; some contend that it is a breach of privacy while others contend that it is a crucial tool for law enforcement to investigate crimes and prevent terrorism.

Wiretapping is permitted in India under specific circumstances. The Indian Telegraph Act of 1885 grants the federal and state governments the authority to eavesdrop on telephone calls for the purpose of ensuring public safety or preventing criminal activity. However, a responsible authority must approve wiretapping, and the grounds for the interception must be documented.

In India, there are two different forms of wiretapping: passive and active. The monitoring of phone calls without recording them is known as passive wiretapping. Call recordings are a kind of active wiretapping. Passive wiretapping can only be done by the government. Although active wiretapping is prohibited, it is occasionally carried out by private persons or organisations.

A few Indian wiretapping case laws are also discussed in the article. The Supreme Court ruled that eavesdropping constituted a breach of privacy in the case of PUCL v. UOI (1997). The High Court ruled that evidence gathered by unauthorised eavesdropping is not admissible in court in the case of Rayala M. Bhuvaneshwari vs. Nagaphanender Rayala (2008). Additionally, the Supreme Court ruled in the 2017 case of K.S. Puttaswamy v. Union of India that privacy is a fundamental right protected by the Indian Constitution.

The article’s conclusion claims that wiretapping is a complicated topic with both advantages and disadvantages. When considering whether or not to permit wiretapping, it is critical to balance its advantages with the right to privacy.

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