Kevin Moses Paul
22 July 2021
According to the question you've asked, let me be very clear with you that 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. In general, 'phone tapping' means secretly listening or / recording a communication in telephone in order to get information about others activities. It is also known as ‘wire-tapping’ in some countries.
It can only be done in an authorized manner with permission from the department concerned.
However, if it is undertaken in an unauthorized manner then it is illegal and will result in prosecution of the person responsible for breach of privacy.
Therefore, only the Central and the State Governments have a right to tap phones under Section 5(2) of Indian Telegraphic Act, 1885. There are times when an investigating authority/agency needs to record the phone conversations of the person who is under suspicion. Moreover, such authorities are supposed to seek permission from the Home Ministry before going ahead with such an act.
Regardless of being a Government Authority the application sent to the Home Ministry shoul contain specific reasons for recording the phone calls, and the same could be further processed only when the need for phone tapping is proved as important.
But, there is legal provisions which I would like to bring into your attention as it is directly connected to the query you've asked. The provision is the Section 25 of the Indian Telegraph Act, 1885.
Section 25 of the Indian Telegraph Act, 1885 deals with - "Intentionally damaging or tampering with telegraphs".
It further states that —
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.
Therefore,. by unlawful means and without proper approval, transmission or recording of phone calls between two persons by a thrid party or third person as such is an illegal activity, for which the offender could be imprisoned for a period of upto 3 years or finer and even both depending upon the court's discretion.
Hope It Helps
Kevin M. Paul