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Rights to Privacy, Life Violated By Recording A Phonecall Without Consent, Chhattisgarh HC Observes

The High Court was hearing a challenge against Chhattisgarh’s Mahasamund Family Court’s October 2021 order allowing a husband to admit a non-consensual recording of a phone call with his wife into evidence.

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Recording a phone conversation with a person without their knowledge violates their rights to privacy and life, the Chhattisgarh High Court recently held, while setting aside a family court’s order which permitted using a similar phone call as evidence. LiveLaw first reported on the issue.

The High Court was hearing a challenge against Chhattisgarh’s Mahasamund Family Court’s October 2021 order allowing a husband to admit a non-consensual recording of a phone call with his wife into evidence. The husband claimed the recording could be used to cross-examine and prove allegations against his wife in their ongoing maintenance case.

Challenging the order before the Chhattisgarh High Court, the wife claimed that she did not know the call was being recorded, that it violated her privacy rights, and that the court had erred in permitting the husband’s request. The husband’s lawyers rebutted that the Family Court’s decision was sound and that he had the right to use the recorded conversation.

“…[The recorded conversation] Amounts to violation of her right to privacy and also the right of the petitioner guaranteed under Article 21 of the Constitution of India,” Justice Rakesh Mohan Pandey of the Chhattisgarh High Court observed on October 5th. “Further, the Right of Privacy is an essential component of right to life envisaged by Article 21 of the Constitution…The learned Family Court has committed an error of law in allowing the application under Section 311 of the CrPC [powers to summon material witnesses or examine persons present] along with the certificate issued under Section 65 of the Indian Evidence Act [cases where secondary evidence may be given]. Accordingly, the order passed by the learned Family Court on 21.10.2021 in Case No. F118/2019 is hereby set-aside.”

Cases cited by the Chhattisgarh High Court in its ruling: The High Court surveyed multiple cases on phone tapping and privacy violations before ruling in favour of the petitioner, in this instance. For example, in RM Malkani (1972), the Supreme Court held that:

“…The telephonic conversation of an innocent citizen will be protected by Courts against wrongful or high handed interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. It must not be understood that the Courts will tolerate safeguards for the protection of the citizen to be imperiled by permitting the police to proceed by unlawful or irregular methods…”

In 1997, the Supreme Court held that personal telephone conversations can be protected under the right to privacy:

“…But the right to hold a telephone conversation in the privacy of ones home or office without interference can certainly be claimed as “right to privacy”. Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is a part of modern man’s life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of a man’s private life. Right to privacy would certainly include telephone-conversation in the privacy of ones home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India [the right to life and liberty] unless it is permitted under the procedure established by law…”

In 1998, the top court separately held that the right to privacy is integral to the right to life, held under Article 21:

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“…Disclosure of even true private facts has the tendency to disturb a persons tranquility. It may generate many complexes in him and may even lead to psychological problems. He may, thereafter, have a disturbed life all through. In the face of these potentialities, and as already held by this Court in its various decisions referred to above, the Right of Privacy is an essential component of right to life envisaged by Article 21. The right, however, is not absolute and may be lawfully restricted for the prevention of crime, disorder of protection of health or morals or protection of rights and freedom of others…”

Finally, in 2015, in a case similar to the one before the Chhattisgarh High Court, the Madhya Pradesh High Court held:

“…On considering the above submissions and the impugned order, I find that the sole question that arises in consideration is whether the tapes produced by the husband are admissible evidence? Admittedly, the conversation was recorded without he knowledge of the wife, behind her back, and is definitely an infringement of her right to privacy. Besides, it is violative of article 11 & 21 of the Constitution of India and has rightly pointed out by the Counsel for the petitioner/wife, that interception in the recording conversation is permitted only under the circumstances. Besides, there is also penalty under section 72 of the Information Technology Act and it could not be used as instrument to create evidence of such nature [Section 72 penalises any person, who in pursuance of powers conferred to them by the Act, secures access to and discloses electronic records without the consent of the person involved]…The tapes…cannot be admitted in evidence but it may be kept on record…”


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