Is Call Recording Legal in India?

Face-to-face conversations are becoming less common these days; most contact takes place over the phone. Even when doing business over the phone, people frequently record their conversations to have proof of the discussion and stop the other side from backtracking.

But some people use these phone recordings to threaten and coerce someone else, including bringing them before the court based only on the recordings. When someone listens in on the participants of a call, it becomes a subject of invasion of privacy.

India struggles with the issue of whether it is permissible or unlawful to record phone conversations without the agreement of the recipient, much like many other countries. The article seeks to examine the legal environment in India about this issue by examining relevant statutes, punishments, and court decisions.

The Legality of Call Recording In India

One-way consent and two-way consent for call recording are the two primary categories into which the phrase "consent" falls. One-way refers to a single consenting party for the call recording, as the terms themselves imply. When a call recording is two-way, both parties must approve it. The terms of permission make the validity of electronic call records clear. Therefore, it is essential to protect an individual's privacy. Even though it's still unclear if it's legal in India to record phone calls without permission, there are important ethics to think about. While recording a phone call in which one is involved without the other parties' agreement is not illegal, the recorders risk legal repercussions if the other party feels that their privacy has been violated.

Notwithstanding, Article 21 of the Indian Constitution forbids recording phone conversations in which the recorder is not a party, provided the recorder has prior authorization from the call participants. Without authorization, phone calls can be recorded, increasing the possibility of identity theft, privacy violations, and a decline in interpersonal trust. Furthermore, it can be deliberately employed for blackmail, defamation, or harassment. In addition, the possibility of misusing recorded talks emphasizes how crucial it is to have strong data security procedures in place and hold people accountable for any illegal disclosures.While it is not legally required, two-way consent is frequently recommended in professional and corporate environments to preserve ethical standards and foster transparent communication. Additionally, certain sectors or companies could have their own policies requiring two-way agreement before recording a discussion.

Legal Framework Related To Call Recording In India

There isn't a particular law in India that governs the use of call recordings. On the other hand, the legality of recording phone conversations is determined by many laws that are scattered over several statutes and judicial decisions. Some of them are:

Information Technology Act, 2000

Data security and electronic communication were given further legal protections under the Information Technology Act of 2000. A definition of an electronic record is given in Section 2 of the IT Act, and it includes sound that is sent, received, or stored electronically.

According to Section 2(1)(t), electronic evidence presented in court shall be accepted as admissible.

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Indian Telegraph Act, 1885

The regulation of telephone and telegraph services in India is the main focus of the Indian Telegraph Act of 1885. According to Section 5 of this Act, the government has the authority to seize a licensed telegraph and mandate message interception.

This Act restricts the recording of messages for the public interest, such as safety concerns, to the federal and state governments exclusively. If not, nobody would be able to record any communications from anybody.

Indian Evidence Act, 1872

The prerequisites for the admission of electronic evidence are outlined in Section 65B of the Indian Evidence Act of 1872. According to this, a certificate is required for the relevant admissibility. The certificate has to specify that the recording was made during regular business hours and that the electronic record was created using the same device. The certificate must include information on the device's model, serial number, maker, and other details.

In addition, the official record must confirm that no alterations or tampering was done to the recording. Regarding the legitimacy and alteration of recorded electronic evidence, Section 85B of the Indian Evidence Act addresses these issues. To sign the document, a digital signature has to be attached. This serves as a gauge for this electronic record's legitimacy and integrity.

Call Records as Evidence in Legal Case

These days, call recordings are a popular type of electronic evidence used in both criminal and civil trials. But whether the evidence is admissible is the more crucial question. Section 65B of the Indian Evidence Act of 1872 allows electronic recordings to be admitted.

Without the express permission of at least one speaker, a speech cannot be recorded and used in court. Consent to record should come from both parties in the same discussion. In any event, the primary legal basis for establishing the legitimacy of the concept of submitting a "digital" form of evidence to the court is its evidential value.

S. Pratap Singh v. the State of Punjab (1964)

The Supreme Court allowed a phone recording of a conversation between the parties and took into consideration whether taped talks might be used as evidence in this case. Only because the supplied evidence aided in the case's resolution was it accepted. The parties asserted that they had a chat that was later collected unlawfully and approved in this instance.

As a result, this case helps us learn more about the admissibility of recorded technological evidence. Conviction-supporting evidence was the only reason the court allowed unlawfully obtained taped discussions.

Ratan Tata v. The Union of India & Others (2014)

The Television Networks (Regulation) Act of 1995 and the Information Technology Act of 2000 were the two most significant legal issues in this case that resulted from the disclosure of recorded phone conversations between Nira Radia and other participants in the 2G spectrum allocation scam.

The Central Bureau of Investigation took over to evaluate the similarly significant nature of Nira Radia's recordings while the Delhi High Court was investigating if the contents of the phone calls were arguable or even extremely secret. The tape recordings were turned in and recognized as legitimate evidence by a court order since they had permission to be recorded.

Punishment for recording somebody's call without consent

In India, recording phone calls is punishable under the Indian Telegraph Act of 1885. This Act recognizes as an offense any attempt to tamper with, intercept, or reveal any part of the contents of a transmission without authority.

Under Section 25 of the Indian Telegraph Act of 1885, an individual may be imprisoned for up to three years, fined, or both if they damage, tamper with, or touch any battery, machinery, telegraph line, post, or anything else that is part of or used in or around any telegraph to prevent or obstruct the transmission or delivery of any message or to commit mischief.

Similar to this, Section 26 of the Act punishes any telegraph officer or other official who tampers with, alters, or unlawfully intercepts or discloses communications, or who divulges the purpose of signals. The punishment can be up to three years in prison or a fine.

Important judgment on call recording

Here we see some notable legal decisions regarding call recording:

Ram Singh V. Colonel Ram Singh (1986)

In this case, there was an allegation that the appellant was against the ending of voting in a certain area of the village. The admissibility of statements recorded at the toll booth was in question. Inadmissible was the tape recording, according to the court.

Because of this, the Supreme Court dismissed the appeal, finding inadequate tape recording evidence to support the appellant's claims. The recording did not instill public confidence of any kind, the Court further declared. Thus, call recordings, audio, and other digital evidence should be protected in the same way as other privacy-related devices.

Rayala M. Bhuvaneswari V. Nagaphamender Rayala (2008)

In this case, the petitioner asked for his wife's divorce on the basis of a hard drive that had audio of his wife's phone calls to her relatives. The woman denied some of the contents of the recordings, but the court ruled that the husband and wife had a pure connection and that the husband was violating his wife's right to privacy and personal liberty when he recorded her calls.

In this instance, the spouse used illegal methods to gather information for the divorce, making him a criminal in the eyes of the law. In addition, he recorded her calls without getting her permission, which is against the law and considered obscene behavior. The Court further decided that a husband and wife's marriage is pointless if they cannot trust one another.

Conclusion

In summary, it is unclear whether it is unlawful in India to record phone conversations. Existing laws and court rulings provide some guidance, even when no specific legislation specifically forbids such conduct. The legal environment related to recorded phone conversations is complex, with different jurisdictions and situations leading to various interpretations.

About The Author:

Adv. Akanksha Magon brings 14 years of robust experience in the New Delhi High Court and district courts. Specializing in family law, including divorce and child custody, as well as consumer protection, 138 NI Act cases, and other civil matters, she ensures clients receive astute counsel and representation. Her deep understanding of the legal landscape allows her to adeptly navigate diverse legal concerns, from contract disputes to property conflicts. At the core of her practice is a steadfast commitment to providing tailored, top-tier legal guidance for each individual she represents.