In the recent times, there has been a lot of advancement in the field of technology. While the advantages of technology cannot be denied, everything has a negative side to it also. The world has shrunk a lot due to the advancement in technology. We can connect to people sitting a thousand miles away with just sending them a mail or calling or texting them. With this, the issue of security also comes in. There has been a rise in cases where the government has started tapping phone calls, texts, and emails of people in the name of national security. The question that arises here is that is this not a violation of the right to privacy of a person. In India, telephone tapping has to be approved by a designated authority. It is illegal otherwise.
Article 21 of our Constitution lays down that no person shall be deprived of his life and personal liberty except according to the procedure which has been laid down by the law. The phrase personal liberty also includes within its ambit the right to privacy. Although this is not mentioned expressly, but the right to privacy is an implied right guaranteed by the Constitution of India. The Judiciary has also recognized this proposition. Right to privacy is also enshrined in Article 17(7) of the International Covenant on Civil and Political Rights (ICCPR), to which India is a party. When a person is making a telephonic call and communicating with the other party, the person is also exercising his right to freedom of speech and expression under Article 19 (1) (a). Thus, tapping of the call would violate this provision, until and unless it falls under reasonable restriction provided under Article 19 (2).
Coming to the issue of phone-tapping, it can be defined as a scheme of things where telephonic activities are secretly recorded or are listened to, for the purpose of gaining information about the activities of the person who are communicating through the call. Under entry 31 of the Union List of the Constitution and Entry 7 of the Federal List of the Government of India Act, 1935, telephonic along with other communication devices is mentioned. Both the State Government and the Central Government has the right to tap phones of people under Section 5 (2) of the Indian Telegraphic Act, 1885.
The Telegraph Act do provide some substantive safeguard also. Section 25 of the Act states that if any person intends to intercept or make himself acquainted with any message and tampers with any deceive with that motive in mind shall be punished with an imprisonment which may extend up to three years or fine or both.
There are times when the investigation requires that the authority or agency record the conversation of a person who is under suspicion. Such authorities must seek permission from the Home Ministry before they can tap the calls of the person.
The Indian Telegraph Act 1885 (hereinafter the Act) is the primary legislation concerned with controlling and regulating communication channels in India. Section 5 of the Act lays down grounds for issuance of an interception order which includes the occurrence of a public emergency, interest of public safety, the sovereignty of India, security of the State, friendly relations with the foreign States, public order and preventing any incitement to the commission of an offence. The Act recognizes the Central Government as the agency which has the sole prerogative to issue an order u/s 5 of the Act and it makes it clear beyond an iota of doubt that powers u/s 5 are the sole domain of the Executive immune from any kind of intervention. In the application to the Ministry, the agency or authority has to mention reasons and the needs for tapping the phone calls. In the case of State, the permission has to be taken from State Home secretary. A telephonic conversation of political leaders cannot be tapped officially.
Rule 419A of the Indian Telegraph Rules, 1951, which lays down the procedural requirements which must be followed for telephone tapping to be legal. There is a provision for a review committee to supervise the order of interception. Section 69 of the Information Technology Act, 2000, which deals with the power to issue directions for interception or monitoring or decryption of any information through any computer resource; Information Technology (Directions for Interception or Monitoring or Decryption of Information) Rules, 2009.Both, the Central and the State Governments have a right to tap phones under section 5 of Indian Telegraphic Act, 1885.
India doesnt have a constitutionally sound phone tapping law. The colonial phone tapping laws of India must be repealed and new and constitutionally sound phone tapping laws in India must be formulated. There is urgent need to provide protection to people against misuse for mobile phones.