Is Call Recording Legal in India?

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 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.

In essence, phone tapping or wiretapping or call recording is the process of monitoring, recording or listening to telephone or mobile calls made by people without their knowledge or permission.

In India, phones can be tapped only with permission of the court or concerned department. Otherwise, authorities can take penal action against a person who taps phones illegally.

Admissibility of Call Recording in India

Call recordings are admissible as valid evidence in the court within the territory of India. These pieces of evidence are subjected to certain conditions-

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 without 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

1. 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.

2. Section 2(1)(t) of the Information Technology Act, 2000 defines electronic evidences as a valid defense under Indian law.

3. 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.

4. 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.

5. 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.

6. 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.