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Exploring the Legality of Wiretapping in India: Understanding the Laws and Implications

Although there are many opinions on the subject of wiretapping, which can be used for good or bad purposes depending on your intentions, let's avoid discussing its moral or ethical implications for the time being and stick to the legal aspects.

Wiretapping and phone tapping are strongly related to Article 21 that is "Right to Privacy".

The act of secretly attaching a particular gadget to someone's phone in order to covertly listen to their phone calls is known as telephone tapping or wiretapping. Only a few special authorities, such as the government, are allowed to tap phones or other electronic devices in India, and only under very specific circumstances that ensure the security of the country or state and the maintenance of public order and safety in the event of threats like lynchings, etc. According to government laws, private persons or organizations are not permitted to listen in on private conversations or tap phones because there wouldn't be any individual privacy if this were allowed.

There are fundamentally two different types of wiretapping:
  1. Passive wiretapping, which is legitimate wiretapping carried out by the authorities.
  2. Active wiretapping is illegal and is unauthorized device to gain every single access to data for instance by generating false messages or controlling signals.

The History Of Wiretapping

The rights of individuals have always been difficult to reconcile with state and law enforcement considerations when it comes to wiretapping regulations. Although wiretapping has been used since the invention of the telegraph, the first instance of it being used by law enforcement was in New York City in the 1890s. The New York State Department discovered that without a warrant, officers had wiretapped entire hotels in the 1910s.

Given that the Fourth Amendment primarily protects verbal communications, such as mail, and that inserting taps constituted trespassing, the department argued that it did not violate any Fourth Amendment rights. For the purpose of providing wiretap warrants in matters involving national security, the Foreign Intelligence Surveillance Act (FISA) was established in 1978.

Importance And Statutes Regarding Wirepapping

In Entry 31 of the Union List, communication tools like telephones and telegraphs are mentioned. Under the terms of the Telegraph Act of 1885, both the Central and State Governments reserve the right to wiretap or intercept telephone calls. In addition, Section 25 of Telegraph Act stipulates that action must be done in the event of illegal phone tapping and information extraction.

The inspecting authority may occasionally feel the necessity to record the phone calls made by the person whose credibility is in question. Before putting on such a show, the experts should seek permission from the Home Ministry.

There must be some motivations that are presented. The need for phone tapping should also be explained. At that point, the Ministry evaluates the request's justification and urgency before granting authorization. Before placing a phone under investigation, every agency issues an authorization slip. The State Home Secretary is given the power to impose sanctions with reference to States.

Legislators' phones cannot be formally bugged. It must be made clear on the slip that the person being reviewed is not a politician, but what is necessary is that there are occasionally emergencies that should be anticipated, and authorities should be excused from the requirement to obtain permission from ministries before tapping a phone in order to avoid some uncertain consequences. If I also talk about the politician point, we should also bug the phones of politicians because we all know how corrupt or subject to other unjustified pressure Indian politicians are.

In fact, there are certain conditions under which telephone can be tapped, lets know about them:
  1. Security of state:
    The most frequent justification for tapping phones or other electronic devices is to ensure the safety of the state or country. No state or government would take this risk unless their state was in danger or otherwise threatened.
  2. Public Order:
    The term "public order" refers to the normalcy and security that a society requires and that the government should work to maintain so that citizens can exercise their constitutional rights and the society as a whole can advance.
  3. Friendly connections with foreign states:
    Maintaining good relations with foreign states is essential for the growth or harmony of international relations. In the context of wiretapping, this can imply coordinating the use of various countries' wiretapping regulations.
  4. Individual privacy:
    For example, there wouldn't be any individual privacy if wiretapping were made legal or if anyone had access to wiretap devices.

Laws Relating To Wiretapping

The Indian Telegraph Act, 1885:
Wiretapping is permitted under Section 5(2) of the Act under certain conditions, including an emergency, national security, and the maintenance of law and order.

The order may be issued if authorities determine that doing so is required for maintaining public order, protecting the "sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public safety".

Punishment For Wiretapping

In cases of illegal wiretapping by any person, group, or government agency that uses wiretapping unlawfully to invade a person's privacy by listening to their phone communications, the aggrieved person or victim may file a court application. According to Indian Telegraphic Act's Article 26(b), anyone detained for unauthorised interception is subject to a 3-year prison sentence. Additionally, it would be a violation of Article 21's right to privacy.

Cases Relating To Wiretapping

  1. Mr. Mukesh Kumar Kaushik v/s Delhi State Industrial
    In this case, there was a disclosure of assests of Public Servants by the Public authorities on regular basis by using of special devices, and this case came under light when plaintiff loged a complaint. The judgement of the case was given by Delhi High Court in which this case was considered as the case of wiretapping.
  2. Dharambir v/s Central Bureau of Investigation
    This is the case in which the CBI has detailed the process arriving at the list of calls relevant to each of the cases. But a lot of information have been collected during the process by tapping the phone conversations in the hard disc and transferred into CD's and given to accused. Since there was mention of hard discs its came within the meaning of Section 3 EA read with Section 173(5)(a) and 207(v) CrPC.

No authority or person is permitted to tap the phone of any person without a valid reason, as per the Telegraph Act of 1885's required regulations. However, in my opinion, there should be some exceptions or regulations that allow for the tapping of phones in certain circumstances without first obtaining authorization from the authorities, such as when it is necessary or in an emergency.

As it takes some time to determine whether the phone can be tapped or not, it is possible that the information we want to learn by tapping the phone could be lost or misplaced. The Indian Constitution's Article 21 guarantees personal liberty, which includes the right to privacy. A person has the right to protect his or her privacy. In some circumstances, the government or the authorities are forced to invade someone's privacy in order to protect the security of the state or country.

One of them is telephone interception. This is a significant move on the part of the government, and there should be justification for intercepting a person's phone because it involves their privacy. According to section 5(2) of the Telegraph Act, the right to privacy is only not violated when telephones are intercepted or tapped in the public interest or during an emergency. Except in the two cases indicated above, wiretapping telephones is prohibited.

Any evidence obtained by telephone interception is also regarded to be admissible evidence and does not violate the right to privacy. Even if permission was obtained from the government, the interception of a phone or wiretapping of a person's conversations would still require permission from the relevant authorities or governments and constitute a privacy violation because it could reveal information about financial transactions or a person's health that they would prefer to keep private.

The rights granted to the government and authorities are not unrestricted; rather, there are some limitations, and prior consent must have been obtained before tapping a person's phone. A person's telephone cannot be recorded unless and until there are sufficient justifications provided for doing so since no one has the right to be deprived of their personal freedom. So long as it's done in the public good or in an emergency, recording phone conversations is not against the law.

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