A K Agnihotri : PHONE TAPPING (part ii)

HISTORICAL PERSPECTIVE:

            PUCL filed a writ petition in the Supreme Court in 1991, challenging the constitutional validity of section 5(2), arguing that it infringed on the constitutional right to freedom of speech and expression, and to life and personal liberty. In December 1996, the Supreme Court delivered its judgement: “Unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers under the said Section. Public emergency would mean the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action. The expression ‘public safety’ means the state or condition of freedom from danger or risk for the people at large. When either of these two conditions are not in exercise, the Central Government or a State Government or the authorised officer cannot resort to telephone tapping even though there is satisfaction that it is necessary or expedient so to do in the interests of sovereignty and integrity of India, etc...” From this Supreme Court judgement, it is clear that most instances of tapping of the phones of politicians and journalists were illegal since the essential criteria of “Public Emergency” or “Public Safety” were not satisfied.

            But now, Section 69 of the Information Technology (Amendment) Act 2008, which was passed by Parliament in December 2008, drops all references to the essential criteria of “public emergency” or “public safety”, and has thereby circumvented the Supreme Court judgement. Even the Information Technology Act of 2000 only mentioned decryption; interception and monitoring were not mentioned at all there.

 Section 69 of the new IT Act of 2008 enhances the scope from the 2000 version of the IT Act to include interception and monitoring. Moreover, the Information Technology (Procedures and Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009, notified on October 27, 2009, allow far easier tapping than the safeguards formulated by the Supreme Court in 1996.

The contentious issue of telephone tapping has remained with us for a very long time, and has been the topic of a never-ending debate between law enforcement officials and civil liberties activists. Indian Courts have examined the ethical aspect of telephone tapping while attempting to evolve suitable guidelines in relation to the vexed question of admissibility of evidence obtained through this method. Though our legal system has been witness to a slew of telephone tapping cases, no clear trend has emerged so far. The issue resurfaced during the proceedings of the Parliament attack case but the High Court and the Supreme Court examined it from different standpoints. Telephone tapping in India has gained notoriety; thanks in part to numerous political scandals that have emerged over the past few decades-

       ADMISSIBILITY IN EVIDENCE

               The early common law position in relation to the admissibility of evidence highlighted the relevance of the evidence rather than how it was obtained. For example, In R v Leatham we find the oft-quoted statement of Crompton J., "It matters not how you get it; if you steal it even, it would be admissible". The State machinery is of the opinion that telephone tapping is a method of preventing crime while also serving as a means for obtaining vital information that can be used to further the interests of national security. Besides, phone taps have also proven successful in checking the organized crime syndicates and the drug mafia, since it aids in making preventive arrests and in taking necessary precautionary measures. Human rights activists on the other hand, state that it constitutes a blatant invasion of a person’s right to privacy and the right to live his life in a peaceful and humane manner. They further point out that telephone tapping has been used more to delve into the financial aspects and the intimate relationships of a certain individuals, than to unearth a crime ring or to prevent a terrorist attack.

The Indian Telegraph Act of 1885 was enacted to govern all aspects relating to the usage of telephones and the telegraph system in the Country. The definition of telegraph now includes telephony, facsimile, images and even data [as in computers]. Section 5 (2) of the Indian Telegraph Act of 1885 enables the Central Government or a State Govt. to intercept communications provided it is required in the interests of the security of the State and to prevent incitement to the commission of an offence. This was the result of a controversial amendment that was introduced by the legislature in 1971. The Act also provides for safeguards against illegal and unwarranted for interference in the telephone and telegraph mechanisms. Section 25 states that “any person intending to intercept or to acquaint himself with the contents of any message damages, remove, tampers, with or touches any battery, machinery, telegraph line, post or other thing whatever, being part of or used in the working thereof shall be punished with imprisonment for a term which may extend to three years or with a fine, or both”.

In the case of S. Pratap Singh v. State of Punjab , 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. In Yusufalli Esmail Nagree v. State of Maharashtra , a conversation that was recorded by means of a tape recorder placed in a room was admitted in evidence. The appellant Nagree had offered a bribe to a municipal clerk Munir Ahmed Sheikh. Sheikh informed the police who then laid a trap at his residence by concealing a voice recording apparatus in the room where the bribe amount was to be paid. This tape was then allowed as evidence by the Court to corroborate the Sheikh’s testimony. It was noted that if a photograph taken without the knowledge of the person being photographed becomes relevant and admissible, the same principle would apply to the case of a tape-record of a conversation that is unnoticed by the talkers. The Apex Court in delivering the judgment was heavily influenced by the decision of an English Court in the case of R v. Maqsud Ali . In that case two persons suspected of murder went voluntarily with the Police Officers into a room where, unknown to them, there was a microphone connected with a tape recorder in another room. When they were left alone, they had a conversation during which some incriminating remarks were made. The Court decided that the tape-recording of the incriminating evidence had to be admitted as evidence. In N. Sri Rama Reddy v. V.V.Giri , better known as the ‘Presidential Election case’, the petitioner alleged that a certain Jagat Narain had tried to dissuade him from contesting the election. Their tape-recorded telephone conversation was then produced in Court to disprove Narain’s claims the incident never took place. Here the Court utilised the conversation to show that a "witness might be contradicted when he denies any question tending to impeach his impartiality" [Section 153 of the Indian Evidence Act] and thus observed that the tape itself would become the primary and direct evidence of what has been said and recorded.

The case of R.M. Malkani v. State of Maharashtra revolved around the question of whether criminal prosecution could be initiated against a person on the basis of certain incriminating portions of a telephone conversation that he had with another individual, the conversation having been recorded by the police. The appellant was the Coroner of Mumbai and was trying to obtain illegal gratification to the tune of Rs. 15,000 from an honest doctor, whom he planned to implicate in a case involving the negligent death of a patient. The doctor was not interested in paying the bribe and instead contacted the Anti-Corruption Bureau of the Police. On the directions of the police officials, he proceeded to have a phone conversation with the appellant where they discussed the amount of money to be paid, the place of delivery, etc. The conversation was recorded without the knowledge of Malkani and charges were filed against him on the basis of the incriminating statements that he had made.

The Supreme Court said that 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. As regards the admissibility issue, on the one hand the Court appreciates the method, terming it a mechanical eavesdropping device”. But then perhaps realising that it was wrong, hastily added-it should be used sparingly, under proper direction and with circumspection. The tape-recorded evidence was compared with a photograph of a relevant incident, and going on this assumption it was decided that Sections 7 and 8 of the Evidence Act [1872] would not hit the admission of improperly obtained evidence. What the Apex Court did was to hold that illegally obtained evidence would be admitted in Court since the eavesdropper neither subjects the person to duress nor interferes with his privacy. Justice Ray, while giving the verdict, was influenced by American case law on the subject. He relied on the judgment of the US Supreme Court in the case of Roy Olmstead v. United States of America , which had by then been overruled, by the Berger and Katz cases. The doctrine adopted in the Olmstead case was that surveillance without trespass and without the seizure of any material fell outside the constitutional ambit. Thus Justice Ray, was of the opinion that the tape recording of the conversation would not be repugnant to Articles 20(3) and 21 of the Indian Constitution and this opinion was grounded in the judgment of an overruled American case. Sadly, the safeguards suggested were wholly inadequate and could not compensate for the fact that mechanical eavesdropping had been freed from all constitutional restraint. This development is especially important when one takes into account the amendment of 1971 that granted the Government the license to tap any phone conversation it wished without being made accountable or answerable to anybody. Guidelines were only framed two decades later when a voluntary organisation took the initiative and approached the Supreme Court for assistance.

The Constitution of 1950 does not expressly recognize the right to privacy. However, several judicial interpretations including that of the Supreme Court in the Rajagopalan case recognised that there is a right of privacy implicit in the Constitution under Article 21, which states, "No person shall be deprived of his life or personal liberty except according to procedure established by law.” By the 1990’s scandal after scandal erupted in India, and several had to do with what people perceived as the illegal tapping of their phones. 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. The petitioner’s primary contention was that sufficient procedural safeguards to rule out the arbitrary exercise of power under the Act should be read in to s 5(2). Although s 7(2)(b) of the Act empowers the Government to prescribe rules providing for ‘the precautions to be taken for preventing the improper interception or disclosure of messages’, no such rules had been framed by the Government. The petitioner NGO also alleged that the amendment made to Section 5(2) of the Telegraph Act in 1971 was devastating, since it permitted phone tapping not just for public emergencies, public safety, the sovereignty and integrity of India and public order, but also the incitement of offences.

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 enshrined under Article 21 of the Constitution. It can also be traced to Article 17 of the International Covenant of Civil and Political Rights [ICCPR] to which India is a signatory. However, the right is only available and enforceable against the state and not against action by private entities. A person talking on the telephone is exercising his or her right to freedom of speech and expression. 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 Supreme 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. The guidelines define who can tap phones and under what circumstances. Only the Union Home Secretary, or his counterpart in the states, can issue an order for a tap. The government is also required to show that the information sought cannot to be obtained through any other means. The Court mandated the development of a high-level committee to review the legality of each wiretap. 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, shabby and an insult to the protection of privacy and civil liberties. 

                                                                                                                                                To be continued