|
1. Introduction
Listening into telephone conversations by third parties is as old as
telephony itself. The contentious issue of telephone tapping has remained with
us for a very long time, and has been the topic of a never-ending debate between
law enforcement officials and civil liberties activists. Indian Courts have
examined the ethical aspect of telephone tapping while attempting to evolve
suitable guidelines in relation to the vexed question of admissibility of
evidence obtained through this method. Though our legal system has been witness
to a slew of telephone tapping cases, no clear trend has emerged so far. The
issue resurfaced during the proceedings of the Parliament attack case but the
High Court and the Supreme Court examined it from different standpoints.
Telephone tapping in India has gained notoriety; thanks in part to numerous
political scandals that have emerged over the past few decades- the latest being
the Ajit Jogi telephone tapping incident in December 2003, which attracted
tremendous media attention. All this also brings into focus the right to
privacy- a term that seems to hold very little meaning in our modern world of
hidden cameras, electronic bugging of homes, telephone-tapping and increased
surveillance of e-mail and the Internet.
The early common law position in relation to
the admissibility of evidence highlighted the relevance of the evidence rather
than how it was obtained. For example, In R v Leatham we find the oft-quoted
statement of Crompton J., "It matters not how you get it; if you steal it even,
it would be admissible". What is a matter of concern is that Courts in India and
elsewhere have chosen to apply this remark to a wide range of situations where
the right to a person’s liberty and privacy is at stake. The State machinery is
of the opinion that telephone tapping is a method of preventing crime while also
serving as a means for obtaining vital information that can be used to further
the interests of national security. Besides, phone taps have also proven
successful in checking the organized crime syndicates and the drug mafia, since
it aids the police in making preventive arrests and in taking necessary
precautionary measures. Human rights activists on the other hand, state that it
constitutes a blatant invasion of a person’s right to privacy and the right to
live his life in a peaceful and humane manner. They further point out that
telephone tapping has been used more to delve into the financial aspects and the
intimate relationships of a certain individuals, than to unearth a crime ring or
to prevent a terrorist attack. In India today, every second politician,
bureaucrat and journalist alleges that the Government taps his or her telephone.
Notwithstanding all of these concerns, I would like to examine the legal object
behind telephone tapping and the usefulness of the information gleaned from it
in Courts. Another aspect that needs to be examined is- how do we determine
where the line is to be drawn between improperly obtained evidence that is
admissible and that which is deemed to inadmissible?
2. Early Indian Case Law Under The Telegraph Act
The Indian Telegraph Act of 1885 was enacted to govern all aspects relating to
the usage of telephones and the telegraph system in the Country. The definition
of telegraph now includes telephony, facsimile, images and even data [as in
computers]. Section 5 (2) of the Indian Telegraph Act of 1885 enables the
Central Government or a State Govt. to intercept communications provided it is
required in the interests of the security of the State and to prevent incitement
to the commission of an offence. This was the result of a controversial
amendment that was introduced by the legislature in 1971. The Act also provides
for safeguards against illegal and unwarranted for interference in the telephone
and telegraph mechanisms. Section 25 states that “ any person intending to
intercept or to acquaint himself with the contents of any message damages,
remove, tampers, with or touches any battery, machinery, telegraph line, post or
other thing whatever, being part of or used in the working thereof shall be
punished with imprisonment for a term which may extend to three years or with a
fine, or both”.
In the case of S.
Pratap Singh v. State of Punjab , the Supreme Court allowed the tape
record of a telephonic conversation between the Chief Minister’s wife and a
doctor to be admitted in evidence to corroborate the evidence of witnesses who
had stated that such a conversation had taken place. In Yusufalli Esmail Nagree
v. State of Maharashtra , a conversation that was recorded by means of a tape
recorder placed in a room was admitted in evidence. The appellant Nagree had
offered a bribe to a municipal clerk Munir Ahmed Sheikh. Sheikh informed the
police who then laid a trap at his residence by concealing a voice recording
apparatus in the room where the bribe amount was to be paid. This tape was then
allowed as evidence by the Court to corroborate the Sheikh’s testimony. It was
noted that if a photograph taken without the knowledge of the person being
photographed becomes relevant and admissible, the same principle would apply to
the case of a tape-record of a conversation that is unnoticed by the talkers.
The Apex Court in delivering the judgment was heavily influenced by the decision
of an English Court in the case of R v. Maqsud Ali . In that case two persons
suspected of murder went voluntarily with the Police Officers into a room where,
unknown to them, there was a microphone connected with a tape recorder in
another room. When they were left alone, they had a conversation during which
some incriminating remarks were made. The Court decided that the tape-recording
of the incriminating evidence had to be admitted as evidence. In
N. Sri Rama
Reddy v. V.V.Giri , better known as the ‘Presidential Election case’, the
petitioner alleged that a certain Jagat Narain had tried to dissuade him from
contesting the election. Their tape-recorded telephone conversation was then
produced in Court to disprove Narain’s claims the incident never took place.
Here the Court utilised the conversation to show that a "witness might be
contradicted when he denies any question tending to impeach his impartiality" [Section 153 of the Indian Evidence Act] and thus observed that the
tape itself would become the primary and direct evidence of what has been said
and recorded.
3. The Controversial
Judgment In The Malkani Case
The case of R.M. Malkani v. State of Maharashtra revolved around the question of
whether criminal prosecution could be initiated against a person on the basis of
certain incriminating portions of a telephone conversation that he had with
another individual, the conversation having been recorded by the police. The
appellant was the Coroner of Mumbai and was trying to obtain illegal
gratification to the tune of Rs. 15,000 from an honest doctor, whom he planned
to implicate in a case involving the negligent death of a patient. The doctor
was not interested in paying the bribe and instead contacted the Anti-Corruption
Bureau of the Police. On the directions of the police officials, he proceeded to
have a phone conversation with the appellant where they discussed the amount of
money to be paid, the place of delivery, etc. The conversation was recorded
without the knowledge of Malkani and charges were filed against him on the basis
of the incriminating statements that he had made.
The Supreme Court said that held that having another person listening in on a
conversation was a mechanical process” and that there was no element of
compulsion or coercion involved which would have other wise violated the Act.
As regards the admissibility issue, on the one hand the Court appreciates the
method, terming it a mechanical eavesdropping device”. But then perhaps realising that it was wrong, hastily added-it should be used sparingly, under
proper direction and with circumspection. The tape-recorded evidence was
compared with a photograph of a relevant incident, and going on this
assumption it was decided that Sections 7 and 8 of the Evidence Act [1872] would
not hit the admission of improperly obtained evidence. What the Apex Court did
was to hold that illegally obtained evidence would be admitted in Court since
the eavesdropper neither subjects the person to duress nor interferes with his
privacy. Ray, J. while giving the verdict, was influenced by American case law
on the subject. He relied on the judgment of the US Supreme Court in the case of
Roy Olmstead v. United States of America , which had by then been overruled, by
the Berger and Katz cases. The doctrine adopted in the Olmstead case was that
surveillance without trespass and without the seizure of any material fell
outside the constitutional ambit. Thus Ray, J. was of the opinion that the tape
recording of the conversation would not be repugnant to Articles 20(3) and 21 of
the Indian Constitution and this opinion was grounded in the judgment of an
overruled American case.
What is disheartening is the fact that the Court is endorsed such unnecessary
short cuts as a means to obtain conviction, and the problem is that while this
may represent the easy way out for the police, they imperil the liberties of the
citizens. No respect has been attached to the means by which the end could be
achieved. We are thus creating a law enforcement machinery and a judicial
organisation devoid of any morals whatsoever, and thus tilting the balance in
any Court case inextricably in favour of the prosecution. Sadly, the safeguards
suggested were wholly inadequate and could not compensate for the fact that
mechanical eavesdropping had been freed from all constitutional restraint. This
development is especially important when one takes into account the amendment of
1971 that granted the Government the license to tap any phone conversation it
wished without being made accountable or answerable to anybody. Guidelines were
only framed two decades later when a voluntary organisation took the initiative
and approached the Supreme Court for assistance.
4. Human Rights Groups
Seek A Clarification
The Constitution of 1950 does not expressly recognize the right to privacy.
However, several judicial interpretations including that of the Supreme Court in
the Rajagopalan case recognised that there is a
right of privacy implicit in the Constitution under Article 21, which states,
"No person shall be deprived of his life or personal liberty except according to
procedure established by law.” By the 1990’s scandal after scandal erupted in
India, and several had to do with what people perceived as the illegal tapping
of their phones. Opposition parties had alleged that their phones were tapped by
Government machinery at the behest of the ruling party. All this resulted in the
Peoples Union for Civil Liberties [PUCL] appealing to the Supreme Court to
clarify the law regarding electronic tapping in India . The petitioner’s primary
contention was that sufficient procedural safeguards to rule out the arbitrary
exercise of power under the Act should be read in to s 5(2). Although s 7(2)(b)
of the Act empowers the Government to prescribe rules providing for ‘the
precautions to be taken for preventing the improper interception or disclosure
of messages’, no such rules had been framed by the Government. The petitioner
NGO also alleged that the amendment made to Section 5(2) of the Telegraph Act in
1971 was devastating, since it permitted phone tapping not just for public
emergencies, public safety, the sovereignty and integrity of India and public
order, but also the incitement of offences.
In this high profile case, the highest court
in the land ruled that wiretaps constituted a "serious invasion of an
individual's privacy". The Supreme Court recognized the fact that the right of
privacy is an integral part of the fundamental right to life enshrined under
Article 21 of the Constitution. It can also be traced to Article 17 of the
International Covenant of Civil and Political Rights [ICCPR] to which India is a
signatory. However, the right is only available and enforceable against the
state and not against action by private entities. A person talking on the
telephone is exercising his or her right to freedom of speech and expression.
Hence, telephone tapping would also infringe Art 19(1)(a) unless it came within
the restrictions on this right set out in Art 19(2). Significantly, the Supreme
Court, while not wanting to strike down the system of phone tapping altogether,
softened the harshness of the law by introducing guidelines that were to be
followed by the government. The guidelines define who can tap phones and under
what circumstances. Only the Union Home Secretary, or his counterpart in the
states, can issue an order for a tap. The government is also required to show
that the information sought cannot to be obtained through any other means. The
Court mandated the development of a high-level committee to review the legality
of each wiretap. The major criticism of the decision was the system of ‘review’
that was set up. Prominent lawyers dismissed it as “enabling those who authorise
taps to review their own orders with a conclave of colleagues…being arbitrary,
secretive, shabby and an insult to the protection of privacy and civil
liberties. Overall, it appears the Court has done a decent job and has at least
laid the groundwork for a regulatory system. Every arbitrary and seemingly
intrusive law can be effectively softened with a foolproof mechanism to ensure
its proper and legal implementation. However, given the fact that Indian laws
suffer from the problem of a significant implementation deficit, only time will
tell whether these guidelines are honoured or not.
5. Pota And Its Implications On The Tapping Discourse
If human rights activists were uncomfortable
with the qualified endorsement that the Supreme Court had given to telephone
tapping in the PUCL case, they would have got the shock of their life when the
Government introduced the Prevention of Terrorism Act [POTA] in 2002. The
Government insists that the new law is essential to combat the scourge of
terrorism, but it must be said that several of its provisions appear draconian,
and in a nation like ours, will be prone to much misuse. One significant feature
of POTA is that it gives quite a lot of freedom to law enforcement officials to
tap telephonic conversations. Section 38 refers to the application for
authorization interception of wire, electronic or oral communication. According
to the section, A police officer not below the rank of Superintendent of Police
supervising the investigation of any terrorist act under this Act may submit an
application in writing to the Competent Authority for an order authorizing or
approving the interception of wire, electronic or oral communication by the
investigating officer when he believes that such interception may provide, or
has provided evidence of any offence involving a terrorist act. Section 39
deals with the factors affecting the decision by the Competent Authority on
application for interception, while Section 43 provides guidelines for the
interception of communication in emergency. In emergencies the Additional
Inspector General of Police, apprehending death or physical injury to any
person, or to prevent conspiracy or conspiratorial activities can authorise the
investigation officer to intercept and later obtain approval. Most importantly,
Section 45 proclaims, Notwithstanding anything in the Code or in any other law
for the time being in force, the evidence collected through the interception of
wire, electronic or oral communication under this Chapter shall be admissible as
evidence against the accused in the Court during the trial of a case.” This
means that all the ‘illegally’ obtained evidence under the new telephone tapping
provisions would be allowed as evidence in law courts. No further questions
would be raised as to the methods used to obtain the evidence.
Recently, the might of the Indian legal
machinery was directed towards achieving the conviction of four people S.A.R. Geelani, Shaukat Hussain Guru, Mohammad Afzal and Navjot Sandhu alias Afsan Guru
-accused of conspiring with the terrorists who attacked Parliament on December
13, 2001. The designated Court found all four guilty and sentenced them to
death. While the case was pending in the designated Magistrates Court, the
lawyers for the four accused filed an appeal before the Delhi High Court asking
for the telephonic conversations not be admitted as evidence. The Delhi police
had claimed that Shaukat was in constant touch with Geelani, but the Court
maintained that the fact of the conversation taking place just a day before the
attack was a mere coincidence. Besides the procedures specified under POTA for
phone tapping had not been followed. As far as Afsan Guru was concerned, the
police alleged that she had spoken to her husband some days after the attack.
This was said to be a 49 second conversation. However, an auditory and voice
spectrograph analysis of the taped conversation revealed that it was actually a
two and a half minute call. It was thus obvious that an interested party was
responsible for tampering with the phone-tap recordings and this discrepancy
weakened the case of the prosecution.
The High Court ruled that intercepted
telephone calls could not be used as evidence to prove charges under the
Prevention of Terrorism Act (POTA), if the interception procedure laid out by
the Act was not followed and that due "care and circumspection" would have to be
exercised before admitting the intercepts. The Court observed, "It will be open
to the accused to raise objections against the legality and admissibility of the
evidence." The Supreme Court then set aside the Delhi High court order and
accepted the Delhi police's argument that since the calls were intercepted
before the anti-terrorism law was invoked against the accused, the evidence was
admissible under POTA. Geelani and Afsan Guru were convicted mainly on the
strength of this unreliable phone tap evidence. Fortunately for them, on appeal
to the High Court, they were discharged for want of evidence though the other
two had their death sentences upheld. POTA’s reign however, did not last long,
and like TADA, it too was repealed when a new political party assumed power at
the Centre. However, whether the new Government in Delhi will remedy what some
consider to be the flaws in the law governing telephone tapping remains to be
seen.
6. The British
Perspective
English law has evolved considerably since the blanket endorsement of any and
all methods to obtain evidence-a method propounded in the Leatham case, though
one might be inclined to disbelieve this statement in the light of an
observation in R v Sang , where it was stated that there was "no discretion to
refuse to admit relevant admissible evidence on the ground that it was obtained
by improper or unfair means. The court is not concerned with how it was
obtained. For the moment, this statement must be placed in the background, in
order be state that as the law stands now it is not illegal for the police to
bug someone's phone but it is forbidden to use the information gleaned in a
court of law. However, changes in the law have been mooted and the many feel
that phone taps would be a useful tool against organised criminals as well as
terrorists. In Britain, evidence from wall bugs and other covert devices is
admissible but not from phone taps. Section 78 of the Police and Criminal
Evidence Act 1984 (PACE) judicial discretion can be quoted in relation to the
admissibility of evidence. The section provides, the court may refuse to allow
evidence on which the prosecution proposes to rely to be given....". In relation
to this paper and the basis for the evidence being deemed inadmissible, the
section provides that the court should reach its decision, "having regard to all
the circumstances, including the circumstances in which the evidence was
obtained..."; and the usage of the evidence "would have such an adverse effect
on the fairness of the proceedings....", that its exclusion is justified.
As compared to India, the law concerning admissibility of stolen evidence in
England is a lot more flexible. A notable factor of significance in determining
where tapping may be appropriate is the seriousness of the offence being
investigated. What is relevant is, the value of the evidence obtained alongside
the extent to which the code was breached. With a serious crime committed,
significant breach of the code may not render evidence obtained inadmissible. In
R v Khan evidence was deemed admissible, with the court acknowledging that the
seriousness of the crime being investigated was of importance and was seen to
outweigh the improper conduct of the police. In this case breach of privacy,
trespass to property and also damage to such; along with the usage of listening
devices in private premises were found in the conduct of the police. The value
of evidence that the police anticipate discovering through improper conduct may
be of significance in justifying a decision to so act. As shown in the decision
of the Court in the case of R v. Latif , where a crime is of a serious nature
the courts have tended to be reluctant to exclude evidence. It would appear that
the decision to admit the ‘stolen’ or improperly obtained evidence would be
taken based on the attendant facts and circumstances of each case. While
weighing up the severity of a crime with the investigative methods adopted by
the police, the Courts in England have considered the number of breaches of
investigative procedure that occur, and allow these two to be the influencing
factors when considering admissibility. An English Judge, Lord Steyn
acknowledged that while no court will approve readily "of trickery and deception
being used, there are some circumstances in which one has to recognise, living
in the real world, that this is the only way in which some people are ever going
to be brought to trial. There is no consensus as to what should be admissible
in evidence and what should not, though as recent cases reveal, there seems to
be a growing tendency to move away from the exclusionary principle, in favour of
admitting tape-recorded evidence in a court of law.
Prior to the Regulation of Investigatory
Powers Act [RIP] 2000, interception of communications in the UK was governed by
the Interception of Communications Act 1985 (IOCA). The IOCA put in place a
statutory framework for interception of communications in order to meet the
criticisms levelled at the UK in 1984 by the European Court of Human Rights in
the case Malone v UK. In this case the European Court of Human Rights noted that
in the absence of a proper legislative framework in the UK, the practice of
telephonic interception was insufficiently grounded in law to allow it to be
justified under Article 8(2) of the European Convention on Human Rights.
The RIP Act of 2000 repeals the prior
legislation in this area (the Interception of Communications Act 1985) and also
widens considerably the organisations covered by legislation Section 2(2) of the
RIP Act 2000, dealt with the intercepting of a communication in the course of
its transmission by a telecommunication system. There is control exerted by the
Home Secretary over the granting of telephone intercept warrants to the Director
General of Intelligence and Security. Such authorisation is provided under an
Interception Warrant. This must name or describe either one person as the
Interception Subject, or a single set of premises where the interception is to
take place. It is a procedure that was put in on a statutory basis. The warrant
process involves the Home Secretary, permanent under Secretary and a handful of
civil servants. Police can only use what they learn as "intelligence" and are
duty-bound to destroy their tapes once they are no longer required. It must be
noted that RIP Act establishes a Tribunal, which can investigate whether there
was a warrant and, if so, whether it was properly issued. Where it is found that
an Interception Warrant has been improperly issued, the Tribunal has power to
order compensation and the destruction of the recorded material. If the
interception took place without a warrant, then the only sanction is a criminal
prosecution - to which the Director of Public Prosecutions must consent. Thus,
in the UK it is now an offence for any person intentionally, and without lawful
authority, to intercept any communication in the course of its transmission
through a public telecommunication system and - except in specified
circumstances - through a private telecommunication system. Though private
telephone tapping is an offence, it can be stated that the English law is now on
par with the law in India (POTA) and that in the USA (PATRIOT Act).
7. The View From The United States Of America
The United States of America has tended to favour the exclusionary rule of
evidence, but more attention has been given to the right to privacy enshrined in
the American Constitution, citizens in that nation being paranoid about State
intervention in their lives and civil liberties. Telephone tapping is not
illegal provided prior Court sanction has been granted. The "exclusionary rule"
that applies, subject to exceptions, in American law: that evidence obtained by
the Government in violation of a defendant's constitutional rights may not be
used by the prosecution in a criminal trial. The principle is based on the
theory that it is a central function of the courts to encourage lawful action by
the State. Every State in the USA has its own laws that lay down procedures
relating to telephone tapping. At the Federal level the Crime Control and Safe
Streets Act of 1968, prohibits the willful interception of telephone
communication by means of any electronic, mechanical, or other device without an
applicable exemption. Federal statutes do not enjoy superiority over State laws
unless the call or the tap crosses state lines and this has meant that every
State has enacted guidelines with respect to telephone tapping. While the U.S.
federal law only requires one-party consent, many states have accepted different
laws. In some states all parties must give their consent or at least be notified
that the call is about to be recorded. Thus 38 States in the USA have adopted
the one-party notification system while the remaining 12 insist on the two-party
notification method. Any recording, if made in violation of either Federal or
State law, the recordings will almost certainly be inadmissible. Even if
lawfully recorded, the tapes will be exempt from the hearsay rule.
In the Olmstead case, the majority judgment
was in favour of looking at the issue of telephone tapping outside of the right
to privacy and the Fourth Amendment. This was not a satisfactory verdict and led
to an alarming increase in incidents of wire-tapping. The judgment is notable
because of the famous dissent expressed by Justice Brandeis who observed, "the
right to be let alone- the most comprehensive of rights and the right most
valued by civilized men. To protect that right, every unjustifiable intrusion by
the government upon the privacy of the individual, whatever the means employed,
must be deemed a violation of the Fourth Amendment. The famous phrase the
right to be let alone was quoted approvingly in 1967 when the Supreme Court in
the Katz case declared that the protection of the Fourth Amendment would be
extended to all recording of oral statements overheard without any technical
trespass under property law, i.e. by methods such as telephone tapping. In
overturning the Olmstead judgment the court held that recording by police of
conversation in public telephone booth was a violation of the Fourth Amendment,
because the speaker had a reasonable expectation of privacy in the booth. In the
next two decades, as many as 32 judgments that expressed consenting and
dissenting opinions with Katz, dealt with this constitutional issue of the right
to privacy. Recent case law in the USA confirms the fact that "A recorded
conversation is generally admissible unless the unintelligible portions are so
substantial that the recording as a whole is untrustworthy." Courts have relied
on the exclusionary rule and have maintained that it promotes the respect for
constitutional guarantee by removing the incentive to disregard it. However,
there is a controversy as regards the admissibility of tape-recorded
conversations made in a foreign language. Though English law appears to have
accepted this as evidence- in the R v. Maqsud case [where the conversation
recorded was in the Punjabi dialect], Courts in the US have appeared more
reluctant to do the same. The attacks of September 11, 2001 and the events that
followed necessitated the passing of a new law- the PATRIOT Act. This Act, like
POTA in India, had liberalised the telephone tapping procedures and was clearly
aimed at making wire tapping an easier and less procedure-ridden operation. It
extended the authority of the Federal Bureau of Investigation [FBI] to spy on
Americans for "intelligence" purposes, as opposed to investigating criminal
activity. The most crucial aspect was the fact that under Section 218, the FBI
could secretly conduct a physical search or wiretap primarily to obtain evidence
of crime without proving probable cause of crime. This provision goes against
the spirit of the Fourth Amendment to the Constitution that requires the
Government to prove to a judicial officer that it has probable cause of crime
before it conducts an invasive search [like telephone tapping], to find evidence
of crime.
8. Conclusion
The vast strides that have been made in the field of technology in the recent
past have brought people closer like never before. As long as criminals and
terrorists seek to misuse technology in pursuance of their evil motives,
Governments the world over will continue to use technology to invade our private
spaces, which incidentally, are rapidly shrinking. This brings us to the
question; does it take a thief to catch a thief? Should States imperil the
liberty and the right to privacy of entire populations in order to apprehend a
miniscule number of dangerous deviants? Human Rights activists and liberal
intellectuals believe that Privacy is too important a right to surrender to the
State without a fight. The decision of the Supreme Court in the Malkani case was
disappointing because it left the police free to steal evidence and the Court to
admit the stolen evidence. Jurists have criticised Ray, J’s opinion by noting
that he had refused to attach the respect due to the means by which the end
could be achieved this makes the judiciary system and the police system partners
in crime. It is useful to note that Justice Holmes suggested in 1928 in his
dissent in the Olmstead case, it is a less evil that some criminals should
escape than that the Government should play an ignoble part. The nod for
telephone tapping in the Malkani case was given without taking into
consideration a regulatory mechanism that could serve the purpose of preventing
the excesses that one normally associates with laws in our Country that give the
Government wide powers. More recently, the shoddy manner in which the Delhi
police conducted the investigation in the Parliament attack case has raised many
eyebrows. This case serves as an illustration to show how the police not only
misused their powers to tap telephones, but also tampered with the evidence
obtained from such illegal taps.
There is also a growing body of opinion both in India and abroad that supports
telephone tapping and describes it as a necessary evil. The emergence of
terrorism on a global scale has made most nations enact tough anti-terror
legislations like the PATRIOT Act in the USA and the Indian POTA. These laws
curtail civil liberties greatly and their most important provisions deal with
telephone tapping. Governments feel that this is the most effective method to
combat the menace of terrorism- by pre-empting any terrorist strikes by making
proper use of the information obtained by the electronic eavesdropping
procedures. Citizens are asked to forego some of their liberties and to suffer
minor inconvenience in the interest of the greater well being of the nation. A
fact remains that everyone condemns telephone tapping but none refrains from
using it when needed. This is particularly true in cases of politicians like
Richard Nixon in the USA and Indian leaders like Chandra Shekhar, and Rajiv
Gandhi who at some point or the other have been either the victims or the
beneficiaries of telephone tapping. The UK Government in particular has put
across a strong case for telephone tapping and has made it clear that this was
the primary method used to catch drug peddlers, arms smugglers and terrorists.
This view was brought out by Lord Nolan, who, while delivering the judgment in
the Sultan Khan case in 1996 had this to say- it would be a strange reflection
on our law if a man who admitted his participation in the illegal importation of
a large quantity of heroin should have his conviction set aside on the ground
that his privacy had been invaded.
Both sides to the argument have valid reasons for clinging on to their views on
the subject. No one view has been accepted as the ‘correct’ one but the fact of
the matter is that electronic eavesdropping is here to stay. The best that can
be done is to evolve comprehensive regulatory mechanisms to soften the impact of
the State’s intrusion into our private spaces. There is also an urgent need,
especially in India, to come up with guidelines focusing on the admissibility of
different types of evidence in courts of law. Ultimately, telephone tapping,
like the poor, will always remain with us. |
The
author can be reached at: rohan_menon@legalserviceindia.com /
