CALL RECORDING v. RIGHT TO PRIVACY: AMBIGUITY IN MATRIMONIAL CASES

Abstract

This research paper explores the difficult relationship between call recording and the right to privacy within the context of matrimonial cases in India. The use of call recordings as evidence in legal proceedings has become increasingly prevalent, especially in disputes related to marriages. However, this practice raises critical concerns about the potential infringement on an individual’s right to privacy. The paper aims to analyze the legal, ethical, and societal dimensions of this issue within the framework of the Indian legal system, providing insights into existing laws, judicial precedents, and potential reforms. In the paper constitutional provision on the right to privacy as given in article 21 of the constitution is discussed in brief along with the legality of call recording with its provisions are provided and its admissibility in a court of law and what criteria the judiciary takes in account while finding the reliability of the evidence in the form of call recording whether legal or illegal. Also dealing with the ethical consideration in this delicate matter where there is a fine line between individual rights that is the privacy of the individual and societal interests as the party involved shall be given a chance of fair trial and prove his or her innocence even if the call was recorded without the consent of the party. Various judgments of the high courts have been provided which are for and against the right to privacy and call recording in matrimonial disputes and the need for the Supreme Court’s intervention in interpreting this ambiguous matter.

Keywords

Matrimonial disputes, Privacy, Admissibility, judicial judgments, Legality of call recording.

Introduction

In a recent ruling, Asha Lata Soni v. Durgesh Soni (2023) the Chhattisgarh High Court held that a call recording between a husband and wife cannot be used as evidence in court. Since different high courts have given conflicting rulings on this matter, there has been widespread uncertainty over whether phone recordings can be used as evidence in a court of law or not. For instance, in Asha Lata v. Durgesh Soni, the Chhattisgarh High Court gave more importance to privacy over call recording. It opposed the ruling of the Delhi High Court in Deepti Kapur v. Kunal Julka (2020), which ruled in favor of call recording as a piece of valid evidence.

The research paper aims to examine different judgments and opinions on this issue in the hope of coming up with a solution.

Constitutional Provisions on the Right to Privacy

The right to privacy derives its constitutional basis primarily from Article 21 of the Constitution, which guarantees the right to life and personal liberty, the judiciary has consistently interpreted Article 21 to encompass the right to privacy as an integral facet of personal liberty.

The fundamental case of Kharak Singh v. State of U.P. & Others laid the groundwork by acknowledging the right to be left alone and protected from unwarranted state interventions. Subsequent judicial verdicts, notably R. Rajagopal v. State of T.N., further clarified the right to privacy in controlling personal information’s propagation. The watershed moment, however, came with the K.S. Puttaswamy v. Union of India case, where the Supreme Court explicitly recognized the right to privacy as a fundamental right. The judgment delineated various dimensions of privacy, encompassing informational, bodily, and communicational aspects.

Despite this recognition, this right is not absolute, allowing for reasonable restrictions imposed by the state in the interests of national security, public order, and other legitimate concerns. The court’s acknowledgment of privacy as a fundamental right has influenced subsequent legal developments, including the drafting of the Personal Data Protection Bill, emphasizing the need for a comprehensive framework to safeguard individual privacy. 

Is call recording legal in India?

The laws in India are not clear when it comes to recording phone calls. The recording of conversations or phone calls in which you participate does not violate Indian law if everyone involved gives their consent beforehand. If recorded without consent, criminal charges would be upheld. On the other hand, private rights violations may give rise to civil lawsuits and demands for damages.

The laws listed below can be used as a reference when determining the legal ramifications of phone recording:

  • According to Section 3 of the Indian Evidence Act of 1872, electronic records produced for court inspection are considered documentary evidence.
  • Section 85b of the Indian Evidence Act of 1872 deals with the law regarding the alteration of recorded electronic evidence.
  • Section 2 of the Information Technology Act of 2000 defines an electronic record, which includes sound stored, received, or sent in an electronic form.

Is a call recording admissible in court?

According to the Indian Evidence Act’s Sections 65A and 65B, electronic records are allowed. Call recordings are admissible in court because of the following regulations:

Under sections 4 and 7 of the IT Act, the Honorable Supreme Court has established specific standards for the admissibility of call records in a court of law, including relevancy, legitimacy, and reliability concerning call details.

Growing reliance on call recordings in legal proceedings

There has been a noticeable and growing reliance on call recordings as crucial evidence in various legal proceedings. This trend is primarily driven by the widespread accessibility of smartphones and digital recording devices, empowering individuals to easily capture and document conversations. Call recordings are increasingly considered potent pieces of evidence due to their ability to provide a precise account of discussions, enhancing authenticity and clarity in legal disputes.

Matrimonial cases frequently leverage call recordings to address disputes over agreements or allegations, offering an objective record of conversations. Similarly, in criminal investigations, law enforcement agencies increasingly turn to call recordings to capture impeaching statements and strengthen their cases. The legal community has witnessed a shift in practices, with lawyers recognizing the importance of call recordings in challenging or substantiating statements made by involved parties. However, the surge in reliance on call recordings also raises privacy concerns, emphasizing the need for a delicate balance between evidentiary values and safeguarding individual privacy rights.

Applicability of Right to Privacy in Matrimonial Cases: Balancing individual rights and societal interests

The applicability of the right to privacy in matrimonial cases within the Indian context involves a delicate balance between individual rights and societal interests. While the right to privacy is constitutionally recognized and considered a fundamental right, its application in the realm of matrimonial disputes is subject to certain limitations. The judiciary acknowledges the need to protect the privacy of individuals involved in such cases, particularly in matters related to personal relationships, spousal communication, and intimate aspects of married life. However, this right is not absolute, and courts must weigh individual privacy against societal interests, such as the resolution of disputes, the welfare of children, and the maintenance of public order. Striking this balance involves careful consideration of the specific circumstances of each case, ensuring that the right to privacy is respected while addressing the broader societal implications and the need for a fair and just resolution of matrimonial disputes.

Judicial Stand 

Favoring the Right to Privacy over call recording

  • In Asha Lata v. Durgesh Soni, the Chhattisgarh High Court ruled that recording a discussion without permission violates the right to privacy, which includes the right to private over-the-phone conversations. This ruling is based on Article 21 of the Constitution. This case signifies that the right to privacy cannot be violated since it’s a fundamental right to humans under the constitution of India even if call recording proves to good evidence in the matter.
  • In Neha v. Vibhor Garg (2021), the Punjab and Haryana High Court emphasized the protection of privacy rights in this particular case. The case also underlines the fine balance that must be struck between the rights to privacy, the admissibility of call recording as a piece of evidence, and the particular regulations that govern family court procedures.
  • In the decision of K.S. Puttaswamy v. Union of India, the Supreme Court established, the principles of proportionality and legitimacy to decide whether call recording orders that the government issues are legitimate. It was decided that the government lacked the right to authorize telephone tapping if there was no risk to the public.
  • In People’s Union of Civil Liberties v. Union of India, the Supreme Court declared that a man’s private life includes significant phone conversations. A phone discussion in the comfort of one’s own home or place of business would undoubtedly fall under one’s right to privacy. Thus, unless it is approved under the process outlined in Article 21 of the Indian Constitution, phone tapping would be illegal.

Favoring Call recording over the right to privacy

  • The Delhi High Court held in Deepti Kapur v. Kunal Julka, that evidence is admissible regardless of how it was gathered as long as it is significant. The Family Court Act’s Section 14 confers authority upon the family court to receive the same in any case that comes before it. This case signifies that call recording is valid evidence and can be used in a court of law irrespective of how the recording is gathered, it gives more importance to evidence to prove the case over privacy right to the party in this matter.
  • The Supreme Court acknowledged a telephone recording of a discussion between two parties in S. Pratap Singh vs. The State of Punjab after considering the tape recording’s evidentiary value; nonetheless, the recording was only admitted because it contributed to the resolution of the case.
  • In R.M. Malkani v. The State of Maharashtra, the Honorable Supreme Court declared that just as the photograph is relevant evidence, so too is call recording, which is electronic evidence admissible in court, provided there is no use of coercion.
  • In Anvar P.V. v. P.K. Basheer, the Supreme Court ruled that the phone used for recording could be used as primary evidence in court under Section 62. Alternatively, turn the tape to a CD and present it in court with a certificate under the Indian Evidence Act Section 65b (4).

Criteria for admissibility and challenges faced by the judiciary

The judicial treatment of call recordings in matrimonial disputes involves careful consideration of admissibility criteria as call recordings are often presented as evidence in matrimonial cases to support or challenge claims made by either party. The key criteria for the admissibility of these recordings include ensuring compliance with consent requirements, relevance to the issues at hand, and authenticity. Courts may scrutinize the circumstances under which the recordings were made, ensuring that they were not obtained through coercion or manipulation.

Challenges faced by the judiciary in dealing with call recordings in matrimonial disputes include assessing the voluntariness of the recordings, determining their authenticity, and weighing their probative value against the potential for misuse or misrepresentation. The court must strike a delicate balance between allowing relevant evidence and safeguarding against the potential invasion of privacy or manipulation of recorded conversations. Additionally, judges often face the task of interpreting the evolving legal landscape surrounding technology and privacy rights, adapting precedents to suit the complexities of matrimonial disputes in the digital age.

Assessing the influence of call recordings on judicial decisions 

The impact of call recordings on legal outcomes is significant, as these recordings often serve as crucial pieces of evidence in judicial decisions. Call recordings can influence legal outcomes by providing a precise account of conversations, and offering insights into the intentions, agreements, or disputes between parties involved. The assessment of the impact involves considering the authenticity, relevance, and admissibility of the recordings.

Call recordings are frequently used in various legal proceedings, including matrimonial disputes, criminal cases, and contractual disagreements. In matrimonial cases, for instance, they can shed light on issues such as spousal communication, agreements, or disagreements, influencing decisions related to alimony, child custody, or property division. Similarly, call recordings may provide evidence of intent, collaboration, or illegal activities in criminal cases, impacting the verdict.

However, the impact of call recordings on legal outcomes is not uniform, and courts carefully assess the context, voluntariness of the recordings, and adherence to legal standards for admissibility. While call recordings can be important, their influence depends on their alignment with the broader legal framework, including consent requirements and protection against potential misuse or manipulation.

When should a breach of privacy be permitted?

In this day and age of advanced technology, phones contain more information about their users than users know about themselves. Take a dating site for instance, as an example. Recently, the site released generic information of thousands of its app user base, including body types and sexual preferences considering how social media sites have precise private information of their users then, it should be OK to violate an individual’s privacy, for in marriage disputes. However, there must be a fair trial; otherwise, how can the aggrieved party prove their innocence when it comes to their partner’s extramarital affair or adultery or any other wrongdoings, which can serve as a solid foundation for divorce or to resolve the case.

Although privacy is now acknowledged as a fundamental right, evidence gathered in violation of that right would still be admissible. While the right to privacy is a personal one, the right to a fair trial affects public justice and has broader implications, making it a larger cause.

The other side of the coin:

While emphasizing the right to a fair trial, the Delhi High Court in this case (Deepti Kapur v. Kunal Julka) appears to be ignoring the fact that using evidence obtained in violation of one’s right to privacy and presenting it in court would likewise violate the aggrieved party’s right to a fair trial.

The court stated that if section 14 is held not to apply to 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, in response to questions regarding the Family Court Act’s (FCA) Section 14.

On the other hand, the court notes here a few precautions that must be taken into account while using Section 14’s authority to receive evidence, and it further holds that: Just because the rules of evidence support a liberal approach to evidence admission in court to aid in the administration of justice does not mean that everyone should embrace any illegal tactics of gathering evidence, particularly in relationships of confidence like marriage. Though sentiment must yield to the law, a helpful statutory provision or a beneficial rule of evidence should not be interpreted as authorizing the unlawful gathering of evidence.

Although these safeguards are a good way to make sure that someone’s rights are not completely nullified, the court’s decision in this case to consider the evidence raises questions about whether or not these safeguards would be effective in stopping illegally obtained evidence in such cases or not.

Ethical Implications of Recording Conversations without Explicit Consent 

The ethical implications of recording conversations without explicit consent revolve around the principles of consent and informed decision-making. Ethical standards dictate that individuals have the right to control their personal information, including the conversations they engage in. Recording conversations without the knowledge and explicit consent of all parties involved raises concerns about privacy and autonomy.

In many jurisdictions, the legal requirement for consent to record conversations is aligned with ethical principles. Failing to obtain explicit consent can be seen as a violation of an individual’s right to privacy. Ethical considerations emphasize the importance of transparent and informed decision-making, ensuring that individuals are aware that their conversations are being recorded and have the opportunity to express their consent or objection.

Recording conversations without consent raises ethical questions about respecting the autonomy and agency of individuals. It may lead to a breach of trust and impact the quality of interpersonal relationships. The potential for misuse or manipulation of recorded conversations further underscores the need for ethical conduct in this regard.

Hence emphasizing the importance of respecting individual privacy, promoting transparency, and upholding the principles of informed decision-making. Adhering to these ethical standards is essential to maintain trust, protect privacy rights, and ensure fair and respectful communication practices.

Summary

Since, the courts have allowed the call recording to be admitted as evidence in the proceedings given that it adheres to certain conditions of identification, relevancy, etc. provided in the declarations themselves, as mentioned above, irrespective of whether they were obtained without consent or not. However, specifically in respect of the matrimonial cases, there is no definite ruling, and the high court appears to have a divided opinion on this matter, as on the one hand, the high court has denied admitting call recordings obtained or recorded without the spouse’s consent. The high court seems to have a contrary view that the call recording should be admitted, but the spouse producing the call recording without the other party’s consent should be proceeded against in court for violation of privacy. The opinion of the Delhi High Court with respect seems to be more in line with the decision of the Hon’ble Supreme Court on the point of admitting the recorded conversations.

Comment / Suggestion

The implication of allowing call recording in matrimonial matters as evidence can have a social impact on the individuals who are married or are in a relationship, since we are living in the social media age where trust is fragile among each other, allowing call recording can fuel trust issues in the institution called marriage, and hence this will give chance to any partner to suspect on their partner over any little or trivial things which they say or do outside of home.

But again as said before, if call recording is helping the individual to prove his or her innocence in an already broken and lack of trustful marriage, where one is cheating on another and playing with their partner’s faith and the value of the institution called marriage then it’s better to set one free as in the name of a fair trial.

The main issue regarding this matter in matrimonial cases is that different High Courts have dealt with this matter differently and there needs an urgent interpretation of the law by the Supreme Court of India. Call recording should be allowed or not, should be decided on a case-to-case basis since the right to privacy is a fundamental right and impinging it every now and then in the name of a fair trial would be in itself unfair. But again I think of allowing call recording in certain situations where the court feels the need to allow it so the innocent party gets the justice that it deserves from the partner who has done him or her wrong in the matrimonial disputes.

Supreme Court’s interpretation on this matter is need of an hour since it’s at the top of the hierarchy of the judicial system and its decision on this matter will be referred by every court in the country while dealing with other similar kinds of cases on the same topic and will be taken as the guidelines on how to deal with it in case any similar situation arises in legal fraternity in the future.

AJAY CHAVAN

GOVERNMENT LAW COLLEGE, MUMBAI