Is Phone Tapping Legal In India?


Phone tapping is also referred to as ‘wire-tapping’ in some countries (primarily in the USA). It can only be wiped out a licensed manner with permission from the department concerned. However, if it has undertaken in an unauthorised manner, then it is illegal and can end in the prosecution of the author for breach of privacy.

The expression ‘personal liberty’ means ‘right to privacy’. It is a right of the citizen to safeguard his privacy, plus, that of his family, education, marriage, motherhood, childbearing, and procreation, among other matters.


Both the Central and State government have the power for tapping phone in India under 1Section 5(2) in The Indian Telegraph Act, 1885

This section states that the Central Government or a government or any officer who has been authorised by the Central Government or by the state government may take action for tapping phone if he/she is satisfied that it’s necessary or expedient so to try to within the interests of the sovereignty and integrity of India, the safety of the State, friendly relation with foreign states or public order or for preventing any quite urging to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of message to or from a person or persons or concerning any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted or shall be intercepted or detained or shall be disclosed to the govt making the order or a politician thereof mentioned within the order.

Before placing the phone under surveillance, the agency has to fill the registration slip. The State home Secretary sign it for the State.” Politician telephone can not be tapped officially” a qualifier on the slip says the surveyed person is not an elected representative. Today, every cellular service provider has a mediation server to intercept phones. There are two sorts of interception facilities available today-Integrated Services Digital Network (ISDN) and therefore the leased line. ISDN facility is a mediation server that intercepts a call after that it transmits through a PRI, i.e., Primary Rate Interface line to the office of an agency. Also, the police can hear the phone on their PRI line and store the recording to attached computers. A sound file of the intercepted call was additionally recorded and stored within the mediation server, simultaneously.


Unlawful interception infringes the proper to privacy, and therefore the aggrieved person can file a complaint within the Human Rights Commission.

An FIR is often lodged within the nearest police headquarters when illegal phone interception comes into the knowledge of the person.

Furthermore, the resentful person can approach the Court against the person doing the Act in unauthorised action under Section 26 (b) of the Indian Telegraphic Act which provides for the imprisonment of three years for persons held for an unlawful interception.


As amended within the recent Supreme Court judgment, the right to privacy is an integral part of the right to life, which enshrined under Article 21 of the Indian Constitution. Intercepting a telephone of a private with none intimation infringes right to privacy of an individual. Nevertheless, an equivalent is often done by the govt if any unique situation arises—the facility conferred to the govt under section 5(2) of the Telegraph Act. The supply laid down under section 5(2) gives power to the government to intercept a telephone in the interest of public or during a case of emergency. The facility conferred under section 5(2) to the govt is not absolute because it may be a matter of privacy of a private. Nobody can intercept a telephone of an individual without taking permission from the govt. The government can exercise its rights to block an individual’s phone only to a particular extent, by showing reasonable grounds to try to so. The government can exercise its right but outside a specific ambit because a single feature a right to privacy, and he also features a right to safeguard his right to privacy


In R.M. Malkani case, the State of Maharashtra revolved around the question of whether prosecution initiated against an individual on the idea of certain incriminating portions of a conversation that he had with another individual. within the case, the Appellant was the Coroner of Mumbai and was trying to get2 illegal gratification of Rs. 15,000 from an honest doctor from whom he planned to implicate during a case involving the negligent death of a patient. This doctor was not curious about paying the bribe and instead contacted the Anti-Corruption Bureau of the Police. Then the direction of the police officials the doctor is required to proceed to possess a phone call with the Appellant where they discuss the cash to pay, and also the place of delivery. The conversation recorded without the knowledge of Malkani and charges filed against him on the idea of denouncing statements.

The Supreme Court said that having another person listening in on a conversation was a mechanical process which there was no element of compulsion or coercion involved, which might have violated the Act. The Court appreciated the tactic, terming it a mechanical eavesdropping device”. However, then perhaps realising that it had been wrong, it hastily added that -it should be used sparingly, under the proper direction. The recorded evidence was compared with a photograph of a relevant incident and supported this assumption it had decided that Sections 7 and eight of the Evidence Act [1872] would not bar the admission of improperly obtained evidence. Hence, what the Apex Court did was to carry all illegal evidence that would be admitted in Court since the hearer neither subjects the person to duress nor interferes together with his privacy. While giving the decision, Ray, J., was influenced by the American case law on the topic. Reliance placed on the judgment of the U.S. Supreme Court within the case of Roy Olmstead v. us of America, which had by then been overruled by the Berger and Katz cases. Hence, Ray, J. believed that the tape of the conversation would not be opposed to Article 20(3), 21 of the Indian Constitution.


The vast gain ground achieved in the field of technology within the recent past has brought people closer like never before. So, as long as criminals and terrorists seek to misuse technology in pursuance of their evil motives, Governments everywhere, the planet will still use technology to invade our private spaces. Hence, this brings us to a very crucial question: does it take a thief to catch a thief? Then, should States imperil the freedom and therefore the right to privacy of entire populations to apprehend a minuscule number of dangerous deviants? Human Rights activists and liberal intellectuals believe that privacy is just too important a right to surrender to the State without a fight. The choice of the Supreme Court within the Malkani case was disappointing because it left the police liberal to steal evidence and therefore, the Court to admit the seized evidence. It is useful to notice that Justice Holmes suggested in 1928 in his dissent within the Olmstead case, that it is less evil that some criminals should escape than that the govt should play an ignoble part.


1 Jai, Vipul. “Phone Tapping Laws – A Comparative Analysis.” SSRN Electronic Journal, 2011, doi:10.2139/ssrn.2035462.

2 Raghavi. “Law On Phone-Tapping In India.” Academike, 4 Feb. 2015,

This article is authored by Sheetal Maan, Fourth-Year, B.A. LL.B (Hons.) student at Fairfield Institute of Management and Technology, Guru Gobind Singh Indraprastha University.

Also Read – Right to Privacy in India: Evolution and Legal Analytical Study

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