Authored by Omkar Upadhyay, 3rd Year Student of Maharashtra National Law University, Nagpur.
Communication via telephone has become the new normal and obliterated other obsolete forms of communication. Such conversations are essentially are a matter of private concern. However, the call recording software has effectively invaded this private sphere of individuals and the Courts, by placing more value on its admissibility as evidence has kept privacy, a constitutionally recognized and protected fundamental right, at bay. This article thus examines the tussle of call recording applications and the privacy of those whose call is so being recorded without his/their consent.
Call recording and telephone-tapping: Similarities and differences
The recording of a conversation by automatic call recording application leads to whatever the parties to the call speak being stored and then accessible for further uses. This practice thus shows certain semblance to the practice of telephone-tapping which is defined by the Cambridge dictionary as meaning “the activity of secretly fitting a special device to someone's phone in order to listen to their phone conversations without being noticed.” However, in the case of the call recording applications, instead of a device it is software. Telephone tapping as a practice has hitherto been employed by the State to ensure surveillance over its subjects and check for potential security threats. Often telephone tapping is regulated by certain laws and certain legal systems like those of the USA and Canada require that at least one party knows that their call is being recorded.
Thus, both, recording individually via software and intercepting via the device, outwardly looks quite similar, where at least one party does not know that their call is being recorded. However, the difference rests in the fact that while tapping would be initiated by the government, as the general practice shows, and thus procedurally regulated, the use of software involves a private individual just pressing one button, and the ole conversation, right from the dial tone to the end beep gets recorded. Thus, there exists no procedure or law to regulate the individual act of recording the conversations he has with other individuals.
A breach of privacy?
It has been unequivocally held that telephone tapping results in grave violation of the privacy of an individual. The earliest instance wherein the questions as to the legality of tapping vis-à-vis privacy rights were raised was in Olmstead v. the United States. But the US Supreme Court there answered in negative that it does amount to a breach of privacy as privacy and its protection is, in view of the Court, limited only to the tangible world. However, a different approach was witnessed in Katz v. the United States, where the Court, while developing the famous ‘Katz’ test, held that the citizens have a “reasonable expectance of privacy” and thus intercepting conversations is effective stands in contradiction with the natural right of privacy. In the PUCL verdict, as has been discussed above, it was aptly put that, “the right to hold a telephone conversation in the privacy of one's home or office without interference can certainly be claimed as the right to privacy”. Moreover, after privacy has been elevated to a Constitutional status of the protected fundamental right, the issue becomes more serious and worthy of attention. In the post-Puttaswamy era too, a similar stance has been taken as regards the interrelationship of telephone tapping and privacy highlighted by the pronouncement of Bombay High Court in the case of Vinit Kumar v. Central Bureau of Investigation.
Now, addressing the issues of call recording applications, the general practice entails that the user, who has the application installed, either being the caller or receiver, is able to record the whole conversation. However, there is no concern here for the other party’s consent. His privacy is thus compromised on the will of the individual with whom he interacts without even knowing about it. Debacle further worsens when there exists no legal mechanism in place to put check on this practice by an individual as a writ to enforce the Fundamental Right of privacy cannot be issued against an individual.
Admissibility as Evidence: Privacy at Peril
The Indian Courts have denied illegal evidence but have accepted evidence secured by illegal means such as that of telephone tapping and even though they have been collected in contravention of procedure laid down by the law, they would be admissible. Similar has been the view of the Court when questioned about the validity of and admissibility of call recordings. The recordings have been held to be admissible as electronic evidence falling under the meaning of the Indian Evidence Act. The Courts have nevertheless attached several caveats on the admissibility such as; The voice of the speaker is properly recognizable, the said recording is authentic in nature and un-doctored and the statements uttered are relevant to the case.
Therefore, though the recordings may constitute a violation of privacy, they are nevertheless valid in the eyes of law and would be admissible before the Court. This is further corroborated by the recent ruling by the Delhi High Court which held that evidence obtained in breach of privacy won’t affect is admissibility.
Where does the remedy lie? The horizontality of Fundamental Rights
Fundamental rights, from inception, have been seen as negative obligations on the State, certain caveats which the State is required to observe and not break. Thus, the right-duty status exists between the private individuals and the State, against whom the individuals can effectively enforce their fundamental rights. This is evident from the fact that Chapter III of our Constitution, our Magna Carta of fundamental rights, starts with what the ‘State’ means and includes.
Therefore, when a fundamental right of an individual is infringed by the State via its actions, orders or certain legislations, an individual has the constitutional remedy to approach the Court and secure writs in his favor to uphold his rights. However, the concern arises when the violator is also a private individual. There comes the question of the ‘Horizontal’ application of fundamental rights. The horizontal approach of rights entails that enforceability of fundamental rights lies against the private actors too, while the ‘Vertical’ application is limited to the traditional individual-State relationship.
Though of foreign inception, the concept of horizontality of rights has been crafted and molded by the Indian Supreme Court too in setting constitutional liability of private actors. Certain articles in Part III of the Constitution, such as article 17, which prohibits untouchability or provisions prohibiting human trafficking and forced labor and employment of children in the factory, are inherently applicable against private individuals. Nonetheless, the Court has always been of the opinion that fundamental rights can only be enforced against the State. Subsequently, however, the Court, adopting activist magnitude has sought to apply the rights fundamentally against private actors too, the prominent instance being, Vishaka v. State of Rajasthan wherein the Court declared that sexual harassment of women at the workplace, either public or private, is against the constitutionally guaranteed fundamental rights. Also, in IMA v. Union of India, the Court went into the ambit of article 15(2) insofar it prohibits private discrimination and direly applied horizontality against private entities.
Addressing the issue at hand, the act of call recording and subsequent violation of privacy essentially involves private entities, both the victim and the violator. Privacy is an intrinsic component of the right to life and personal liberty as has been guaranteed under Article 21. In the case of Consumer Education and Research Centre (CERC) v. Union of India where the Court was riddled with the right to health of employees, it held that such a right is enforceable not only against the State but private employers too and aptly opined that, “be it the State or its undertaking or private employer, the Court would give appropriate directions to make right to life meaningful.” Thus here too, the victim, whose privacy is being violated can, following the precedent of CERC, can approach the court for remedy.
Absence of Due Process
Following the Maneka Gandhi verdict, the ‘due process clause’ was judicially imported in Art. 21 of the Constitution and thus any act infringing on life and personal liberty must satisfy the test of reasonability and the procedure must be free from arbitrariness and unreasonableness. Privacy, being an inseparable component of life and personal liberty, must be thus treated the same way and any act taking away privacy must be in accordance with due process of law. As regards telephone tapping, the Supreme Court in the PUCL verdict opined that, “The substantive law as laid down in Section 5(2) of the Act must have procedural backing so that the exercise of power is fair and reasonable. The said procedure itself must be just, fair and reasonable.” Subsequently, the government also laid down an expansive process with respect to intercepting telephonic conversations in form of Rule 419A of the Indian Telegraph (Amendment) Rules, 2007. Privacy is not an absolute right. It could be done away with if it is in accordance with the law. The laying of such a procedure by the government read along with the PUCL guidelines effectively makes telephone tapping by the government legalized. However, in the case of private recording of conversations by software, there exist no such guidelines and given the legislative void in the area of personal data protection, an individual is exposed to unmatched arbitrariness and blatant breach of his private sphere. Even the proposed data protection legislation, in defining what amounts to personal data, has left telephonic conversations out of its purview. The position is such that apart from the absence of due process, there doesn’t even exist a due law from which such due process can emanate. The legality which has been ascribed to telephone tapping by the government is because of the presence of legal backing and the court has struck down recording orders where it has found that such orders did not comply with the procedure of law. But no such procedure or law backs the case of private recording of telephonic conversation. Thus, an individual is left without any remedy. The ancient Telegraphs Act too lays no emphasis on private conversations. Therefore, the horizontal application of fundamental rights, given the absence of a specific regulatory regime, seems to be the only remedy available to the aggrieved.
Privacy is a matter of serious concern. Not only the States but the private individuals too are obligated to respect and protect others right to be left alone. In this regard, the analysis has shown that the call recording apps though seemingly harmless, in closer inquiry is a blatant violation of the privacy rights of an individual and thus horizontality of fundamental rights can be a shield towards these violations. Seemingly this void can effectively be filled with a robust and compose data protection regime which incorporates various aspects of privacy.