Is it illegal to Publish a Private Conversation in India?
There are many types of conversations between individuals and the publishing of any normal day-to-day private conversation would rarely have an impact but, a conversation where one of the parties is getting incriminated or if it violates his or her privacy can be questioned in the court of law.
Introduction
There are many types of conversations between individuals and the publishing of any normal day-to-day private conversation would rarely have an impact but, a conversation where one of the parties is getting incriminated or if it violates his or her privacy can be questioned in the court of law. The extent to which such types of publications have been dealt with is the subject matter of this article.
Constitutional Safeguards with Regards to Privacy
The constitutional protection guaranteed to an individual’s right to privacy has been upheld by the courts. There have been recent debates regarding the supposed ‘right to information and an individual’s ‘right to privacy. The era of ‘informational activism where the demands of transparency have risen with awareness and somewhere the line between right to privacy and right to information is getting blurred.
Right to information and the right to communicate the information via media or publishing the same is guaranteed under Article 19(1) of the Constitution of India. In-State of Uttar Pradesh v. Raj Narain[1] the Supreme Court of India held that Article 19(1)(a) in addition to guaranteeing freedom of speech and expression also guarantees the right to receive information on matters concerning public interest. However, more recently concerns over balancing the right to information with the right to privacy have been raised.
One such event that brought the issue into the limelight was Radia Tapes wherein, the telephonic conversations between Niira Radia and senior journalists, politicians, and corporate houses were tapped by the Income Tax department and somehow leaked and published by some media outlet and was telecasted by television channels.
Ratan Tata filed a writ petition before the Supreme Court of India alleging that the unauthorized publication of his private conversations with Niira Radia was in violation of his right to privacy and challenged the publication of the private conversations that took place between the industrialist and Niira Radia by the media[2].
Right to Privacy in India
The Supreme Court of India held in a 9-judge bench held that the right to privacy is a Fundamental Right and it is protected under Article 21 of the Constitution of India. The Puttaswamy case[3] judgment bench overruled the judgments in MP Sharma[4] and Kharak Singh[5] cases which held that the right to privacy is not a fundamental right.
The right to privacy was granted protection as an intrinsic part of the right to life and liberty. These rights were held to be inseparable from a dignified human existence. The dignity of the individual, equality between human beings, and the quest for liberty were held to be the foundational pillars of the Indian Constitution.
In the historic Puttaswamy case, it was held that life and personal liberty are not creations of the Constitution but rather are rights recognized by the Constitution as inherent in each individual, intrinsic and inseparable. Privacy is a constitutionally protected right that emerges primarily from the guarantee of life and personal liberty in Article 21 of the Constitution.
“Privacy is the constitutional core of human dignity. Privacy has both a normative and descriptive function. At a normative level, privacy sub-serves those eternal values upon which the guarantees of life, liberty, and freedom are founded. At a descriptive level, privacy postulates a bundle of entitlements and interests which lie at the foundation of ordered liberty[6].”
It was acknowledged that personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognizes the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place[7].
Technology and Right to Privacy
Technological change has given rise to concerns that were not present seven decades ago and the rapid growth of technology may render obsolescent many notions of the present. The interpretation of the Constitution must be resilient and flexible to allow future generations to adapt its content bearing in mind its basic or essential features of privacy.
Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of information can originate not only from the state but from non-state actors as well. The infringement of privacy has been done in a lot many ways and technology has somewhat facilitated it and made it easy for people to divulge information at a click.
The methods or means how private conversations can be published are: by recording personal conversation and publishing of the same either by the party who is engaging in the conversation or a third party intercepting the line; the publishing of messages or email between two persons; can also include sting operation by media.
Relevancy of such publications under the Indian Evidence Law
The act of recording one’s own conversation with someone Is not criminalized under Section 25 of the Indian Telegraph Act, 1885 but, it criminalizes the act of interception done by a third party. 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.[8]
The judiciary has so far maintained 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 the phone[9]. Therefore, not admissible in evidence.
Section 66[10] to be read with Section 43[11]) 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 recording equipment/software at the recorder’s end of things might not qualify for the test of this Section and may not be considered ‘culpable’. 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.
There is no bar as such on the institution of a suit or claim or complaint based on a phone conversation recorded by a party without the knowledge of the other party. Section 65B of the Indian Evidence Act lays down the requirements for the admissibility of electronic evidence as the court needs the certificate to be assured of the integrity of the source and authenticity of data as it is also stressed that electronic data is more prone to tampering.
The Supreme Court of India has held in this context that even if a document or tape recording is illegally obtained it would still be admissible as evidence provided it fulfils certain criteria of genuineness and relevance.[12]
Conclusion
It, therefore, seems that there is no law established currently with regard to criminalization by the publication of such private conversations. An infringement on the right to privacy would depend on the facts and circumstances of a case.
Originally Published On: Feb 7, 2022
[1] 1975 AIR 865, 1975 SCR (3) 333.
[2] Privacy & Media Law — The Centre for Internet and Society (cis-india.org)
[3] Writ Petition (Civil) No. 494 of 2012, (2017) 10 SCC 1
[4] 1954 AIR 300
[5] AIR 1963 SC 1295
[6] Justice DY Chandrachud [For CJI Khehar, Justices RK Agrawal, Abdul Nazeer] in Justice KS Puttaswamy v. Union of India, (2017) 10 SCC 1
[7] K.S. Puttaswamy v. Union of India (Privacy-9 J.), (2017) 10 SCC
[8] Vishal Kaushik v. Family Court & Anr. 2015 SCC OnLine Raj 7851
[9] R.M. Malkani v. State of Maharashtra 1973 1 SCC 471
[10] Section 66 of the Information Technology Act, 2000.
[11] Section 43 of the Information Technology Act, 2000.
[12] R.M. Malkani v. State of Maharashtra 1973 1 SCC 471
