First published on LiveLaw at : https://www.livelaw.in/phone-tapping-and-recording-of-a-phone-conversation-by-a-private-party-issues-relating-to-legality-and-admissibility/

“Who are you? Why do you hide in the darkness and listen to my private thoughts?” 

William Shakespeare, Romeo and Juliet

Is Privacy history? The sheer number of court trials where a telephone recording is sought to be used by either party as evidence, suggest that private thoughts are not private anymore. Use of such recordings in court cases has risen enormously in the recent past. In this background, the Authors examine the very legality of the act of recording of a phone conversation by a private party to the conversation, without the knowledge of the other party. The Authors also examine as to whether such a phone conversation can be used as legally admissible evidence, and if yes, what is the evidentiary weight that is to be attached to it.  

LEGALITY:

At present, there is no specific statutory regime for data protection in India which would govern the clandestine recording of a phone call. In light of this rather gaping legislative void, the law applicable to situations such as recording of a phone call without knowledge is often not direct, or fully tested by judicial interpretation. This is particularly true in case of such recording being conducted by a private person as opposed to recording/tapping/interception by a governmental authority or agency of the State.  

The Indian Telegraph Act, 1885 – In absence of a specific law governing the issue, the law most frequently applied to such cases is a dinosaur of a law – The Indian Telegraph Act passed way back in1885 (hereinafter, “Telegraph Act”). Section 25 of the Telegraph Act criminalizes the offence of damaging or tampering with a telegraph.^[3] The offence includes the act of tampering a telegraph or the working of a telegraph with the intention of intercepting or acquainting oneself with the contents of any message^[4].  However, precedent reveals that this section has mostly been pressed into service only for the prosecution of third parties intercepting a call, and not the parties to the conversation. The tenor of the section also appears to suggest that criminality is attachable only to a third party, who somehow breaks into the conversation. The phrase ‘Interception’ / ‘Acquainting oneself with the contents of a message’ do not appear to cover a situation of a person recording their own telephone conversation with another. A person recording his/her own conversation with someone cannot be said to have ‘intercepted’ his own conversation, or damaged/tampered a device with a view ‘to acquaint himself with the contents of (his own) message/conversation’. Therefore, strictly speaking, an act of clandestinely recording one’s own conversation with someone does not appear to be culpable under this section.

This is further hammered-in by the principle of strict construction which mandates that a penal statute has to be construed strictly, and only if an act clearly and squarely falls within the definition of a penal section – should criminality be attracted. Therefore, on an overall analysis, it does not appear that a party recording its own conversation may fall within this section. Having said that, there is no direct judicial decision on this point, and this is a position of law that remains to be tested. It cannot be commented with certainty at this stage how the courts may interpret it. However, the courts are not likely to hold such an act criminal under the present legislative scheme of things.

The leading decision on Section 25 of the Telegraph Act is one rendered by the Supreme Court of India way back in 1972^[5], wherein the appellant had been convicted by the lower courts for corrupt practices, on the basis of evidence that included a telephone conversation recorded on tape. A challenge was made to the conviction inter alia on the ground that the police, by recording the telephone conversation, had contravened Section 25 of the Telegraph Act. The Supreme Court turned down this contention based on the fact that this was a case where a person who was allegedly being extorted over the telephone, had allowed the police to listen-in to the conversation and record the same. It was not a case of someone breaking into the conversation to acquaint themselves with the conversation. In the absence of any such fact, this was held not to be a criminal offence on the part of the policemen who tapped the conversation. Though the decision is old, and Section 25 is most often used for the prosecution of theft, or illegal utilization of telephonic lines, data circuits, etc., there have been cases in the recent past where the provision has been attracted in the context of criminal prosecution against non-consensual/unauthorized tapping of phone calls by third parties.^[6]There is hardly any prosecutions initiated under Section 25 against a party to a conversation for recording it clandestinely. The above prosecutions have been initiated with respect to a third party recording a conversation without knowledge/consent of the parties to the conversation.

What can be gleaned from relevant judicial decisions on the issue, which are clearly few and far between, is that if a third party intercepts the telephonic conversation between two parties, then it is a violation of the right to privacy of the parties conversing on phone^[7]. However, there does not appear to be judicial consensus on the question of a party to the conversation recording the same without consent: While courts have held such a recording to be a violation of the other party’s right to privacy, and therefore, not admissible in evidence, a contrary view has also been taken^[8].  

The Information Technology Act, 2000 – The other statute that may be relevant to the present discussion is the Information Technology Act, 2000 (“the IT Act”). However, the applicability of this statute to the specific situation under discussion appears to be quite limited.

Section 43A of the IT Act^[9] provides for compensation by a body corporate to any person whose sensitive personal information or data such body corporate possesses, deals with or handles, in a computer resource that it owns, controls or operates, if, on account of the negligence of such body corporate, wrongful loss or gain is caused to any person. ‘Sensitive personal data or information’ has been defined in an executive notification passed under the said Section 43A^[10], and includes, inter alia, information in relation to a person’s finances, sexual orientation, biometrics, etc. 

Therefore, Section 43A of the IT Act may be applicable to the present situation in the very narrow factual context where hypothetically, a company intercepts a telephonic conversation taking place on a device which the company owns, and negligently allows unauthorized access or disclosure of a person’s sensitive personal information, and such negligence results in wrongful loss to that person or wrongful gain to another. 

Apart from Section 43A of the IT Act, the applicability of other provisions of the IT Act is as follows: Section 66^[11](to be read with Section 43^[12]) is applicable if a person, without permission of the owner of a telephonic device, gains access to such device or downloads data from it. However, merely recording a telephone conversation with someone with the help of a recording equipment/software at the recorder’s end of things might not qualify the test of this Section and may not be considered ‘culpable’. Further, Section 66E^[13] that punishes violation of privacy only applies to images and not voice recordings. In its remaining scheme, the IT Act only regulates interception of electronic records when made by governmental or government-authorized agencies or persons. It does not talk of such interception or storage when made by a private person.

Therefore, the Telegraph Act as well as the IT Act do not appear to criminalize the act of clandestine recording of telephone conversation by a party to the conversation.  

ACTION IN TORT/CIVIL ACTION 

Notwithstanding the above, a person aggrieved by such secretive recording of conversation may make a claim in tort for violation of her privacy. Tort law in India is uncodified, and therefore, a court would look to common law for guidance in case of such a legal action, if brought. In recent times, Courts, in at least two reported decisions, have held clandestine phone recordings to be a violation of right to privacy^[14]. Further, in view of the verdict in Justice K.S. Puttaswamy (Retd.) v. Union of India^[15] (hereinafter, “Puttaswamy”), it is now settled law that the right to privacy is a fundamental right emerging primarily from Article 21 of the Constitution of India. Freedom from unwarranted stimuli^[16] and freedom of thought^[17] appear to have been read as falling within the meaning of the fundamental right to privacy. Privacy itself was held to have a negative aspect (the right to be let alone) and a positive aspect (the right to self-development)^[18]. However, even in the cases aforementioned (at Note 14), the court stopped at holding clandestine phone recordings to be a violation of ‘privacy’ and no civil or criminal consequences followed.

In the context of sting operations by private persons, the Delhi High Court has observed that “a sting operation by a private person or agency is, by and large, unpalatable or unacceptable in a civilized society,’ and ‘normally, if a private person or agency unilaterally conducts a sting operation, it would be violating the privacy of another person and would make itself liable for action at law.”^[19] 

Nonetheless, in practice, courts have adopted an approach where they weigh public interest against the right to privacy, on a case to case basis. In Court on its Own Motion v. State^[20], it was held that: “Sting operations showing acts and facts as they are truly and actually happening may be necessary in public interest and as a tool for justice, but a hidden camera cannot be allowed to depict something which is not true, correct and is not happening but has happened because of inducement by entrapping a person.” It remains to be seen how future rulings in this context are affected by the decision in Puttaswamy.

There does not appear to be any precedent where damages have been awarded for clandestine phone recording by a party and consequent violation of right to privacy of the other party to the phone conversation. 

USE OF SUCH A CLANDESTINE PHONE RECORDING FOR THE PURPOSE OF INSTITUTING A COURT CASE, AND ITS ADMISSIBILITY IN EVIDENCE

There is no bar on institution of a suit/claim/complaint based on a phone conversation recorded by a party without the knowledge of the other party.

In order to examine the possible use of a phone conversation as evidence, the statutory regime relating to admissibility of electronic evidence may briefly be alluded to. 

The legal regime in this regard becomes apparent from a conjoint reading of the IT Act and the Indian Evidence Act, 1872 (“Evidence Act”). A voice recording would fall within the definition of “electronic record” provided in the IT Act.^[21]

The output of an electronic record (which in this case is a phone conversation, which may be saved in the form of an audio file, and then the output produced on a CD/DVD, or any other medium) is deemed to be documentary evidence, provided the conditions relating to admissibility of electronic evidence are satisfied. 

Section 65A of the Evidence Act provides that the contents of electronic records may be proved in accordance with the provisions of Section 65B of the Evidence Act^[22]. 

Section 65B^[23], in turn, lays down the requirements for admissibility of electronic evidence. The Supreme Court of India has laid down that in order for an electronic evidence (including a voice recording) to be admissible, the certificate provided for under Section 65B(4) of the Evidence Act is mandatory.^[24] Therefore, as long as the certificate fulfilling the requirements of Section 65B(4) is filed with a court, a voice recording is admissible. The entire idea behind the certificate is to ensure the integrity of data and computer system; the manner of production of output of electronic record, identity and particulars of device used (including the original device). The court needs the certificate to be assured of the integrity of source and authenticity of data, so as to place reliance on it. This is insisted upon since electronic data is more prone to tampering and alteration. However, admissibility is not the be all and end all. It is not that once the electronic evidence (recorded phone conversation, in this case) is held admissible in evidence, it would necessarily be relied upon by the judge for a decision in the case. Even after admissibility, a judge would still have to consider its logical relevance to the matter at hand, its probative worth, reliability and credibility. 

Applying the above principle, the output of the phone recording can be led in evidence in a civil or criminal case in order to establish facts. For the output on CD/DVD or any other medium, to be admissible, it has to be accompanied by the above certificate certifying the integrity of information, computer/mobile and the process of production of the output. If, however, the computer resource/medium on which a voice recording is stored (a flash drive, compact disk, etc.) is directlytendered into evidence, there would be no requirement of a certificate under Section 65B. This is because the voice recording, being a deemed document, is itself being produced for the inspection of the Court, and thus becomes primary evidence. The certificate under Section 65B would only be necessary in case, for instance, an output of such computer resource is being sought to be tendered into evidence, since in that case, the same would become secondary evidence. This is the law laid down by the Supreme Court of India.^[25]

ADMISSIBILITY OF EVIDENCE OBTAINED THROUGH ILLEGAL PHONE TAPPING  

The doctrine of ‘fruits of the poisonous tree’^[26] has largely been held to be not applicable in the Indian context. In American jurisprudence, illegally collected evidence, which is best described as fruit of the poisonous tree, is frowned upon by the American courts. In India, the 94^th Law Commission Report suggested to the Parliament to bring in similar provisions into our legal system, which was not accepted by the Parliament. The Supreme Court has discussed the 94^thLaw Commission Report, distinguished therefrom and has categorically held that the evidence collected illegally or in violation of the procedural law will not become inadmissible unless serious prejudice is caused to the accused.^[27]   

Indian courts have taken the view that there is no law in force that excludes relevant evidence on the ground that it was obtained under an illegal search or seizure, or was otherwise illegally obtained.^[28] The Indian Courts have had no problem in accepting a fruit, no matter how poisonous, tainted or rotten the tree may be. This attitude of looking the other way, or of prioritizing pragmatism and expedience over legal principle, has left the police with no incentive to improve the quality of their investigations, or comply with the letter of the law concerning search and seizure. Be that as it may, the Courts continue to accept tainted evidence.   

In fact, specifically in the context of telephone recordings, the Supreme Court of India has held^[29] that even if a document or tape recording is illegally obtained, it would still be admissible as evidence, provided it fulfills certain criteria of genuineness and relevance. The said criteria with respect to admissibility of voice recordings were thereafter crystallized in another decision of the Supreme Court of India.^[30] Though this was a decision delivered in the context of recordings made on tape by a government official, it is still an authority for the general conditions under which a voice recording may be admitted into evidence. It laid down the following conditions for admissibility of a tape-recorded statement:

1. The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker, it will require very strict proof to determine whether or not it was really the voice of the speaker.
2. The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence — direct or circumstantial.
3. Every possibility of tampering with or erasure of a part of a tape-recorded statement must be ruled out, otherwise it may render the said statement out of context and, therefore, inadmissible.
4. The statement must be relevant according to the rules of the Evidence Act.
5. The recorded cassette must be carefully sealed and kept in safe or official custody.^[31]
6. The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.

The requirements of admissibility were also imported from American jurisprudence, which requires, as a condition of reception into evidence:

1. a showing that the recording device was capable of taking testimony;
2. a showing that the operator of the device was competent;
3. establishment of the authenticity and correctness of the recording;
4. a showing that changes, additions, or deletions have not been made;
5. a showing of the manner of the preservation of the recording;
6. identification of the speakers;
7. a showing that the testimony elicited was voluntarily made without any kind of inducement.

• Therefore, if the above criteria are met, even the product of an illegal phone tapping would be admissible in evidence.

WAY FORWARD: THE NEW DATA PROTECTION LEGISLATION

The Draft Personal Data Protection Bill, 2018 (hereinafter, “DPP Bill”) which has been keenly anticipated by all for its repercussions on data privacy, has been introduced. The decision in Puttaswamy laid much of the groundwork for privacy legislation in India. India’s push to build a sturdy data privacy regime is at a critical juncture now with the coming of the DPP Bill.

The DPP Bill changes the paradigm of the relationship between service providers and users. This law which brings in constitutional precepts, viz the constitutional right to privacy, raises this relationship to a fiduciary level which is premised upon the fundamental expectation of trust. The terminology has been revisited to mitigate the inequality in bargaining power. The individual whose data is being collected as the “data subject” is now the “data principal”^[32], and the entity that collects the data as the “data controller” is the “data fiduciary”^[33].

Coming back to the issue at hand, the tenor of the DPP Bill (in its present shape) does not make it clear as to whether it would cover the clandestine recording of phone conversation by one party, without the knowledge of the other. It is not clear as to whether the dynamics of ‘data fiduciary’ and ‘data principal’ were intended to apply to private conversations between two parties, which are at arm’s length. Be that as it may,  even if parties to such a conversation were to fall within the definitions of ‘data fiduciary’ and ‘data principal’, the exemption of ‘Processing for the purpose of legal proceedings’ envisaged under Section 44^[34] of the DPP Bill may squarely apply to it, and permit the recording and use of phone conversations in legal proceedings, as evidence. 

It is hoped that future modifications to the DPP Bill would bring in clarity on the legality / criminality associated with recording of telephone calls. A possible guideline could be the ‘one party consent’ rule followed by the federal law of the Unites States, which permits recording of a phone conversation if one party to the conversation (including the recording party) consents.^[35]

CONCLUSION

Whether or not recording of a phone conversation by a party to the conversation without knowledge of the opposite party is an offence, is not very clear, and has not been judicially decided. There does not appear to be any reported prosecutions initiated against a party to the conversation for having committed an offence under the Telegraph Act. The language of Section 25 of the Telegraph Act and the relevant provisions of the IT Act also do not appear to suggest that simpliciter recording of phone conversation by one of the parties (without knowledge of other party) attracts any criminality. 

However, there have been cases of criminal prosecutions against third parties intercepting and tapping calls unauthorizedly. Therefore, the better judicial opinion is that it may not be a criminal offence for one party to a conversation to record the conversation without the knowledge of the opposite party.

However, the same may be construed as a violation of right to privacy – presently, a tortuous wrong, though such civil actions appear to be extremely rare. We are not aware of any case where compensation/damages have been awarded for violation of privacy caused by clandestine recording of phone conversation by one party, without the knowledge of the other.

Phone conversation inter se parties are extremely commonplace, and frequently relied upon by courts in India to decide facts and issues. As per the Supreme Court, even an illegally recorded conversation can be admissible in evidence subject to production of a certificate under Section 65B of the Evidence Act, and a satisfaction of conditions relating to genuineness and relevance as listed above. 

The present legal regime appears to be insufficient to deal with recording of telephone conversations, and the issue remains unregulated. It is hoped that the new DPP Bill may be tweaked with a view to regulate these situations. 

***

Post script: After the writing of the above piece two developments have taken place which may be material:

First is a Bombay High Court decision which makes in-roads into the principle of ‘it is admissible, even if you steal it’. In a case of interception of calls without due process, the Bom HC not only directed that such conversations be ignored but also destroyed. The Court seems to have indicated that unconstitutionally obtained evidence is a graver issue than mere illegally obtained evidence, especially after right to privacy has been exalted as a fundamental right.

Second is a recent Delhi High Court decision that upholds the principle ‘even if it’s stolen, it is still admissible’ in matrimonial case, notwithstanding the right to privacy implications.

PS : Since the writing of this article, an interesting development in the debate regarding the admissibility of illegally obtained evidence is the recent judgement of the Delhi High Court,  where it has beenheld that even if the evidence is collected in breach of privacy of a party, Section 14 of the Family Court Act (“FCA”) empowers the Family Court to receive the same for a case before it (Deepti Kapur vs Kunal Julka[CM(M) 40/2019 and CM APPL.No.1226/2019])

This was a case where the husband had filed a petition before the Family Court for dissolution of his marriage on the ground of cruelty. During the divorce proceedings, he filed a Compact Disc (CD) purporting to contain an audio-video recording of the wife supposedly speaking to her friend on the phone about the husband and his family in an allegedly derogatory, defamatory manner which constituted cruelty to him. 

The wife opposed the taking on record of the CD claiming, firstly, that the contents of the CD were tampered; and secondly, the contents of the CD were not admissible in evidence since they were a recording of a ‘private’ conversation which had been clandestinely recorded by the husband, without the knowledge or consent of the wife, and in breach of her fundamental right to privacy. The Family Court directed that the contents of the CD be examined by the Forensic Science Laboratory (FSL) and the wife appealed to the High Court against this order. 

The wife argued that the evidence was collected in breach of her fundamental right to privacy and hence, is not admissible in a court of law as the recording is per se illegal. She also contended that, in terms of the K.S. Puttaswamy v. Union of India judgment, she had the fundamental right to privacy which was available to a person not only against the State but also against private individuals. The husband argued that Right to Privacy is not absolute but is subject to exceptions and the wife’s right to privacy must give way to his right to bring evidence to prove his case.

Arguments were also made on the scope of Section 14 of the FCA, which permits reception and admission of evidence that may otherwise not be relevant or admissible under the Indian Evidence Act, 1872. Here, the wife argued that this section did not permit evidence which is inadmissible “as per the Constitution”, drawing a contrast between constitutionally obtained evidence and illegally obtained evidence. The wife contended that the husband’s action of surreptitiously and clandestinely recording the wife’s telephonic conversation with her friend would amount to an offence under section 354-D of the Indian Penal Code 1860, whereby the very act of recording such conversation is a criminal offence, punishable in law; and accordingly, evidence collected by committing a penal offence must per se be inadmissible in a court of law for any purpose and under any statute. 

The court while relying on the judgments passed by the Supreme Court on the issue, and the decision in Pooran Mal vs. The Director of Inspection (Investigation), New Delhi & Ors, said that the law in India concerning ‘admissibility’ of evidence was “crisp, clear and consistent“. The Court recorded that unless there was an express or necessarily implied prohibition in the Constitution or other law, evidence obtained through illegal means was not liable to be shut out: 

“although today, privacy is recognised as a fundamental right, that alone would not make evidence collected in breach of that right, inadmissible… while the right to privacy is essentially a personal right, the right to a fair trial has wider ramifications and impacts public justice, which is a larger cause.”

Here, the court while focusing on the right to a fair trial seems to ignore that relying on evidence taken in breach of one’s right to privacy, and presenting that in court would also be violative of the right to a fair trial of the aggrieved party. 

While commenting on the scope of Section 14 of the FCA, the court said that “If section 14 is held not to apply in its full expanse to evidence that impinges on a person’s right to privacy, then section 14 may as well be effaced from the statute.” However, here the court also lists down certain safeguards, that are required to be considered while exercising the power to receive evidence under Section 14 and also holds that: 

 “Merely because rules of evidence favour a liberal approach for admitting evidence in court in aid of dispensation of justice, this should not be taken as approval for everyone to adopt any illegal means to collect evidence, especially in relationships of confidence such as marriage…while law must trump sentiment, a salutary rule of evidence or a beneficent statutory provision, must not be taken as a license for illegal collection of evidence.”

Though these safeguards are a good measure to ensure that the rights of a person are not totally set at naught, however, the approach of the court in this case, of not disregarding the evidence makes it unclear as to, practically speaking, whether these safeguards would prove as an effective measure against illegally obtained evidence in such cases or not.  

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^[1] Authored by Bharat Chugh (Partner L&L Partners), and Vibhor Jain (Associate Project 39-A). The views of the authors are personal.The authors also wish to thank Ms.Taahaa Khan & Ms. Arshdeep Kaur for their valuable assistance.

^[2]William Shakespeare, Romeo and Juliet

^[3] Section 25. – Intentionally damaging or tampering with telegraphs If any person, intending–

(a) to prevent or obstruct the transmission or delivery of any message, or

(b) to intercept or to acquaint himself with the contents of any message, or

(c) to commit mischief,

damages, removes, tampers with or touches any battery, machinery, telegraph lines, post or other thing whatever, being part of or used in or about any telegraph or in the working thereof,

he shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both.”

^[4] NOTE also, the definition of “message” under the Telegraph Act, provided in Section 3(3) as follows:

“Section 3 – Definitions (…)

(3) “message” means any communication sent by telegraph, or given to a telegraph officer to be sent by telegraph or to be delivered”;

^[5]R. M. Malkani v. State of Maharashtra, (1973) 1 SCC  471. See paragraphs 15-20 of the SCC report.

^[6]Anurag Singh v. State (Through NCT of Delhi), 2006 SCC OnLine Del 427, a decision delivered by the High Court of Delhi.

^[7]R. M. Malkani (Supra Note 5); See also: Smt. Rayala M. Bhuvaneswari v. Nagaphanender Rayala, 2007 SCC OnLine AP 892, a decision delivered by the High Court of Judicature for the State of Andhra Pradesh. This was a case for a decree of divorce, in which the husband wished to introduce into evidence a hard disk containing voice recordings of his wife. The Court held that a husband listening in to conversations of his wife with a third party was a violation of the wife’s right to privacy under Article 21 of the Constitution of India, which guarantees a fundamental ‘right to life and liberty’ to all persons.

^[8] Vishal Kaushik v. Family Court & Anr., 2015 SCC OnLine Raj 7851 – Paragraphs 13, 21-27, which was a decision delivered by the High Court of Rajasthan at Jaipur in the context of a husband clandestinely recording his wife’s telephonic conversation with him, and seeking to use such recording against the wife in divorce proceedings between the two. The decision in Rayala M. Bhuvaneswari(supra Note 7) was squarely relied on, and the husband’s request disallowed. However, See also: The decision of the Bombay High Court in Havovi Kersi Sethna v. Kersi Gustad Sethna, 2011 SCC OnLine Bom 120, in which, in a similar factual scenario, an opposite conclusion was reached by allowing expert/forensic voice testing of the spouse, without any observations being made about violation of privacy or inadmissibility. This decision has been discussed in Vishal Kaushik (supra). The Delhi High Court, in a decision in 2020 has held that the strict rules of admissibility do not apply in cases of proceedings under the Family Courts Act.

^[9] “Section  43A – Compensation for failure to protect data . Where a body corporate, possessing, dealing or handling any sensitive personal data or information in a computer resource which it owns, controls or operates, is negligent in implementing and maintaining reasonable security practices and procedures and thereby causes wrongful loss or wrongful gain to any person, such body corporate shall be liable to pay damages by way of compensation to the person so affected.

Explanation.– For the purposes of this section,–

(i) “body corporate” means any company and includes a firm, sole proprietorship or other association of individuals engaged in commercial or professional activities;

(ii) “reasonable security practices and procedures” means security practices and procedures designed to protect such information from unauthorised access, damage, use, modification, disclosure or impairment, as may be specified in an agreement between the parties or as may be specified in any law for the time being in force and in the absence of such agreement or any law, such reasonable security practices and procedures, as may be prescribed by the Central Government in consultation with such professional bodies or associations as it may deem fit;

(iii) “sensitive personal data or information” means such personal information as may be prescribed by the Central Government in consultation with such professional bodies or associations as it may deem fit.”

^[10] The Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011, available at: http://www.wipo.int/edocs/lexdocs/laws/en/in/in098en.pdf

^[11] “Section  66 – Computer related offences. If any person, dishonestly or fraudulently, does any act referred to in section 43, he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both.

Explanation.– For the purposes of this section,–

(a) the word “dishonestly” shall have the meaning assigned to it in section 24 of the Indian Penal Code (45 of 1860).

(b) the word “fraudulently” shall have the meaning assigned to it in section 25 of the Indian Penal Code (45 of 1860).”

^[12]“Section  43 – Penalty and compensation  for damage to computer, computer system, etc. If any person without permission of the owner or any other person who is in charge, of a computer, computer system or computer network,—

(a) accesses or secures access to such computer, computer system or computer network; or computer resource

(b) downloads, copies or extracts any data, computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium;

(c) introduces or causes to be introduced any computer contaminant or computer virus into any computer, computer system or computer network;

(d) damages or causes to be damaged any computer, computer system or computer network, data, computer data base or any other programmes residing in such computer, computer system or computer network;

(e) disrupts or causes disruption of any computer, computer system or computer network;

(f) denies or causes the denial of access to any person authorised to access any computer, computer system or computer network by any means;

(g) provides any assistance to any person to facilitate access to a computer, computer system or computer network in contravention of the provisions of this Act, rules or regulations made thereunder;

(h) charges the services availed of by a person to the account of another person by tampering with or manipulating any computer, computer system, or computer network,

(i) destroys, deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means,

(j) steal, conceal, destroys or alters or causes any person to steal, conceal, destroy or alter any computer source code used for a computer resource with an intention to cause damage;

he shall be liable to pay damages by way of compensation to the person so affected

Explanation.—For the purposes of this section,—

(i) “computer contaminant” means any set of computer instructions that are designed—

(a) to modify, destroy, record, transmit data or programme residing within a computer, computer system or computer network; or

(b) by any means to usurp the normal operation of the computer, computer system, or computer network;

(ii) “computer database” means a representation of information, knowledge, facts, concepts or instructions in text, image, audio, video that are being prepared or have been prepared in a formalised manner or have been produced by a computer, computer system or computer network and are intended for use in a computer, computer system or computer network;

(iii) “computer virus” means any computer instruction, information, data or programme that destroys, damages, degrades or adversely affects the performance of a computer resource or attaches itself to another computer resource and operates when a programme, data or instruction is executed or some other event takes place in that computer resource;

(iv) “damage” means to destroy, alter, delete, add, modify or rearrange any computer resource by any means.

(v) “computer source code” means the listing of programme, computer commands, design and lay out and programme analysis of computer resource in any form.”

^[13] “Section  66E – Punishment for violation of privacy. Whoever, intentionally or knowingly captures, publishes or transmits the image of a private area of any person without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment which may extend to three years or with fine not exceeding two lakh rupees, or with both.

Explanation.- For the purposes of this section-

(a) “transmit” means to electronically send a visual image with the intent that it be viewed by a person or persons;

(b) “capture”, with respect to an image, means to videotape, photograph, film or record by any means;

(c) “private area” means the naked or undergarment clad genitals, public area, buttocks or female breast:

(d) “publishes” means reproduction in the printed or electronic form and making it available for public;

(e) “under circumstances violating privacy” means circumstances in which a person can have a reasonable expectation that-

(i) he or she could disrobe in privacy, without being concerned that an image of his private area was being captured; or

(ii) any part of his or her private area would not be visible to the public, regardless of whether that person is in a public or private place.”

^[14] Supra Note 7 and Note 8

^[15] Reported as K.S. Puttaswamy v. Union of India (Privacy-9 J.), (2017) 10 SCC 1

^[16] Per Chelameswar, J. in Puttaswamy (Supra Note 16) at Paragraph 371

^[17] Per Kaul, J. in Puttaswamy (Supra Note 16) at Paragraph 619

^[18] Per Chandrachud, J. in Puttaswamy (Supra Note 16) at Paragraph 250

^[19] Court on its Own Motion v. State & Ors., 2008 SCC OnLine Del 865

^[20] 2007 SCC OnLine Del 1662

^[21] “Section 2(1)(t). – “electronic record” means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche”

^[22] “Section  65A – Special provisions as to evidence relating to electronic record. The contents of electronic records may be proved in accordance with the provisions of section 65B.”

^[23]“Section 65B – Admissibility of electronic records. (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely: –

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in me electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) ‘throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether–

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,

all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in the section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,–

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,

and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a mailer to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,-

(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation.-For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.” (emphasis supplied)

^[24]Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473

^[25]Anvar P.V. (Supra Note 24). See paragraph 24 of the SCC report.

^[26] ‘Fruit of the poisonous tree’ is a legal metaphor in the United States used to describe evidence that is obtained illegally.

^[27]State of M.P. v. Paltan Mallah, (2005) 3 SCC 169 – Paragraph 32

^[28] Shyni Varghese v. State (Govt. of NCT of Delhi), (2008) 147 DLT 691 (Del); M.P. Sharma v. Satish Chandra, AIR 1954 SC 300; State of M.P. v. Ramesh C. Sharma, (2005) 12 SCC 628; R.M. Malkani (Supra Note 5); State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600

^[29] R. M. Malkani (Supra Note 5). Note: However, this is to be contrasted with Rayala M. Bhuvaneswari (Supra Note 7) and Vishal Kaushik (Supra Note 8), where two High Courts have held telephone conversations recorded without knowledge to be violation of the right to privacy and therefore, inadmissible. These decisions appear to go against the grain of the Supreme Court decision in R. M. Malkani, even though R. M. Malkani was noticed in both these decisions. However, both these decisions were in the context of a telephone recording in a matrimonial case. This may have prevailed upon the Court in holding these conversations to be inadmissible. We are not aware of any commercial litigation where the Court has eschewed telephone conversation(s) from consideration on the basis of it being without knowledge/consent. 

^[30]Ram Singh v. Col. Ram Singh, 1985 Supp SCC 611. See paragraphs 32-33 of the SCC report. 

^[31] An exception to this appears to have been carved out by the Bombay High Court in Havovi Kersi Sethna (Supra Note 8), wherein it has been held that in a civil lis the defendant himself has recorded the phone conversation with the plaintiff, as a party in a civil suit who is required to keep custody of its own documents, there is no question of requirement of sealing.

^[32] “Data principal” means the natural person to whom the personal data referred to in sub clause (28) relates; 

“Personal data” means data about or relating to a natural person who is directly or indirectly identifiable, having regard to any characteristic, trait, attribute or any other feature of the identity of such natural person, or any combination of such features, or any combination of such features with any other information;

^[33] 3(13) “Data fiduciary” means any person, including the State, a company, any juristic entity or any individual who alone or in conjunction with others determines the purpose and means of processing of personal data

^[34] 44. Processing for the purpose of legal proceedings.— 

(1) Where disclosure of personal data is necessary for enforcing any legal right or claim, seeking any relief, defending any charge, opposing any claim, or obtaining any legal advice from an advocate in any impending legal proceeding such processing shall be exempted from the following provisions of this Act— 

(a) Chapter II, except section 4; 

(b) Chapter III; 

(c) Chapter IV; 

(d) Chapter V; 

(e) Chapter VI; and 

(f) Chapter VII, except section 31. 

(2) Where processing of personal data by any Court or Tribunal in India is necessary for the exercise of any judicial function, such processing shall be exempted from the following provisions of this Act— 

(a) Chapter II, except section 4; 

(b) Chapter III; 

(c) Chapter IV; 

(d) Chapter V; 

(e) Chapter VI; and 

(f) Chapter VII, except section 31. 

^[35] See 18 U.S.C. 2511(2)(d) available here: https://www.law.cornell.edu/uscode/text/18/2511