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Is Call Recording Legal in India?

Introduction

We witnessed tremendous advancement in technology in the past few decades and the features of the call recording are one such invention. Call recording was initially introduced for businesses where companies collect audio conversations to drive better customer experiences, personnel training purposes, and intelligent decision-making strategies. As the feature of call recording became popular, mobile phone manufacturers start introducing call recording as an integrated feature in their mobile phones. Nowadays, call and voice recording technology is a common feature in smartphones and smartphone users can record their conversations for future reference. The technology of call recording is easily available for the users through their smartphones and notorious criminals in the wake of earning fast cash start exploiting the technology to deceive innocent people in society. In today’s article, we will examine the legality of call recording in India, the admissibility of call recording in courts, and other crucial aspects related to the concerned subject.

Call Recording and Conflict

Phone tapping means listening voice conversation of the other person secretly without their consent. Eavesdropping an individual’s conversation is in violation of the right to life privacy under Article 21 of the Indian Constitution and using that conversation against the same person violates Article 20 and Article 20(3) of the Indian Constitution[1] in consonance with the right to remain silent and violating the principle of self-incrimination. There is no statute for the regulating admissibility of call recording in a court of law and the admissibility of call recording as evidence in court is a violation of Fundamental Rights which is the basic structure of the Indian Constitution. The Supreme Court’s idea of the Basic Structure of the Indian Constitution was introduced in Kesavananda Bharati V. State of Kerala in 1973, upholding the 24th Constitutional Amendment Act, 1971 limiting the power of Parliament to amend Fundamental Rights. Therefore, it required a dedicated approach to deal with the issues related to phone tapping and the admissibility of call recording in the court.

Recording Personal Conversation

Recording Individual conversations without their consent is strictly forbidden by law in India. It violates an individual’s privacy which is a Fundamental Right under Article 21 of the Indian Constitution. The consent of both parties to the conversation is mandatory to authorize parties to the conversation or any third party to record their conversation legally. In case of one party to the conversation consented to a third party to record the conversation, it amounts to a violation on the part of the other party to the conversation who is not consented to any party to record the conversation. Such recordings are illegal due to a breach of privacy on the part of non-consenting parties. A recording of a personal conversation becomes legal on the grounds of general public interest and recording of such conversation required legal authority to be collected and stored as a piece of valid evidence in the court.

Legalizing Call Recording

Legalizing mobile call recording[2] without an individual’s consent shall amount to a violation of Fundamental Rights and result in legal damages to the individuals. Individuals possess mens rea to deceive other individuals by using their conversation against them to earn materialistic and monetary benefits. Law Enforcement agencies and the judiciary had failed to convict individuals who commit fraud and cheating using call recording because recording phone calls is not forbidden by law. Call recording or personal conversations are used to blackmail the victim, incite hatred against the victim, commit fraud and cheating to obtain monetary benefits and manipulate voice recording to take advantage in favor of the culprit.

Admissibility of Call Recording in India

Call recordings are admissible[3] as valid evidence in the court within the territory of India. These pieces of evidence are subjected to certain conditions, namely,

1) The conversation must be relevant to the case: The voice in the recording must be recognizable and the original recording shall be produced before the court with editing, deletion, or alteration. The authenticity of the recording shall be backed by solid proof by the presenter. The Audio in the recording must be audible with the least surrounding disturbance.

2) Reliability of evidence: The court is the sole authority to decide the degree of reliability of call recording produced before the court as evidence.

3) Corroborative evidence: Call recordings are used as corroborative evidence submitted in the court by either party to the conversation.

4) Accurate account: The court cited that before submitting the call recordings, the accuracy of time, place, and recording must be proved by competent witnesses and backed by relevant accounts related to the case. The call recordings must be kept sealed in custody and prevent them from being manipulated.

Laws Related to Call Recording

Telephonic call recording shall be produced before the court as a valid defense backed by several laws under various Acts. Section 2 of the Information Technology Act, 2000 defines electronic records, which include sound records, sent or received in electronic form. Section 2(1)(t) of the Information Technology Act, 2000 defines electronic evidences as a valid defense under Indian law. Section 5 of the Indian Telegraph Act, 1885 empowers the government to take possession of licensed telegraph and to order interception of messages. It provides powers to central and state governments to procure messages on the account of public interest such as safety concerns, invoking public emergencies, and issues related to the security of the nation. Section 65B of the Indian Evidence Act, 1872 deals with required conditions for the admissibility of electronic evidence. Section 85B of the Indian Evidence Act, 1872 deals with the authenticity and alternation of recorded electronic evidences.

Case Laws on Phone Call Recording

The advancement in technology leads to the amendments in Indian law to corroborate electronic evidences in criminal and civil matters. There are numerous cases where the right to privacy prioritizes over the recorded electronic evidences. Similarly, there are cases where electronic evidences backed by valid provisions prevail over privacy.

In Vinit Kumar V. Central Board of Investigation and others (2019)[4], the Supreme Court of India marked the degree of permissibility of recorded conversations as judicial evidences. The apex court also highlights that the interception order of calls should not violate Rule 419A of the Indian Telegraph Rules, 1951. It authorized the union or State Home Secretary to issue orders for call interception under Section 5 of the Indian Telegraph Act, 1885. In the landmark judgment of K. S. Puttuswamy V. Union of India (2018), the Supreme Court of India laid down the “principles of proportionality and legitimacy” to determine the legality of call recording orders issued by the government. It was also noted that the orders of call interception should be issued by the government on the grounds of public safety. In case there is no risk to the public, such orders amount to a violation of the Right to Privacy[5].

In S. Pratap Singh V. State of Punjab (1964), the Supreme Court held that the recorded telephonic conversation was submitted and accepted by the court because it assisted the court in resolving the case. The court accept the recorded conversation obtained either legally or illegally to complete the conviction process.

In R.M. Malkani V. State of Maharashtra (1973), the Supreme Court of India held that the most important legislation regarding tape recording is the Indian Telegraph Act. The court also held that the right to privacy protects innocent people only. The Fundamental Right should not act as a shield for criminals who are guilty of immoral acts to vandalize police and escape from prosecution.

Is Call Recording Legal in India?

Now coming to the question is call recording legal in India, as we are acquainted with the facts, laws, judgments, and case laws related to call recording, it is high time to address the most crucial question of today’s article “is call recording legal in India?”. As of now, there is no law or statute to voice and call recording of an individual’s conversation which strictly prohibits such activities in India unless both parties to the conversation have consented to the call recording. It is not a penal offense to record a conversation where the party who records the conversation is a participant in the conversation. Therefore, parties in a conversation can record their conversation without seeking the consent of the other participants. But, parties are required to be cautious while using the recorded conversation.

Indian Evidence Act, 1872 allows recorded conversation as admissible evidence acceptable in the Indian Constitution. There are objections to overriding Article 21 of the Indian Constitution, but the Fundamental Rights are subjected to reasonable restrictions. Section 5(2) of the Indian Telegraph Act authorizes the Government of India to intercept phone calls on the grounds of public security. As per the government guidelines, private companies and individuals are not allowed to record the conversation. There is an exception where Individuals and authorities can record the conversation on the grounds of public interest.

Conclusion

There are several instances where the government issues orders for the interception of calls. The recent incident of call interception was witnessed in Jammu and Kashmir before scrapping its special status under Article 370 of the Indian Constitution in 2019. Right to Privacy is always in conflict with electronic evidences like recorded telephonic conversations or video clips. It is interesting to note that electronic evidences are admissible in a court of law but it is not yet legal to use the technology. In other words, the court does not authorize individuals to record the telephonic conversation because it leads to not only a violation of the Right to Privacy under Article 21 of the Indian Constitution but also increases the chances of committing crimes using the recorded conversation. The court explicitly mentioned that the recorded conversation was used as valid evidence because it helped in resolving the case and completing the criminal prosecution. At the time of writing this article, there are various initiatives taken by the authorities to protect citizens’ privacy. As we have observed that if either of the parties attempted to record the conversation, telecom companies offer a caveat for call recording before connecting the parties in a phone conversation. It will surely help individuals to ensure the confidentiality of the conversation and individuals object to telephonic recording.

[1] Constitution of India, 1950

[2] Recording of phone calls without informing the participant legal in India?, Rising Kashmir, 10 August 2022, Recording of phone calls without informing the participant legal in India? | Rising Kashmir

[3] Moblie call recording: is it legal in India, Kalinga University, 11 August 2022, Mobile Call Recording: Is It Legal In India – Kalinga Plus (kalingauniversity.ac.in)

[4] Vinit Kumar V. Central Board of Investigation and others, Hindustan Times, 11 August 2022, Phones can be tapped only in public emergency: Bombay high court | Latest News India – Hindustan Times

[5] Right to Privacy, Drishti IAS, 10 August 2022, Right to Privacy (drishtiias.com)

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Prashant Sharma

Prashant Sharma is a law student at Government Law College, Mumbai. He secured AIR 46 in MHCET 2021. He used to write content based on legal issues, social issues, economic aspects, current issues, maritime industries, technology and other related topics.


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