Breach of Privacy: Recording Calls Without Consent is a Violation of Article 21 of the Indian Constitution

Posted On - 13 June, 2023 • By - King Stubb & Kasiva

Introduction

The right to privacy is a fundamental right guaranteed to every individual and is protected by the Indian Constitution. It is enshrined in Article 21, which states that “no person shall be deprived of his life or personal liberty except according to the procedure established by law.”[1]The right to privacy encompasses the protection of personal information, communications, and the autonomy of an individual. In today’s digital age, where communication occurs predominantly through telephonic conversations, the issue of tapping phone lines or recording calls without consent has become a matter of concern.

The High Court of Delhi recently addressed this issue in the case of Sanjay Pandey vs. Directorate of Enforcement,[2] emphasizing that such activities are a breach of privacy and violate the constitutional rights of individuals.

This article examines the case details, analyses the legal provisions, presents the arguments of both parties, delves into the court’s observations, and highlights the significance of the judgment in upholding the right to privacy through the conclusion.

Case Details: Sanjay Pandey vs. Directorate of Enforcement

In the case of Sanjay Pandey vs. Directorate of Enforcement, the High Court of Delhi rendered a judgment on December 8, 2022. The case involved allegations of illegal interception and recording of phone calls by ISEC Services Private Limited (ISEC) at the National Stock Exchange (NSE) between 2009 and 2017. It was claimed that ISEC recorded calls made by various NSE officials without their knowledge or consent.

Facts of the Case

ISEC Services Private Limited (ISEC) had a contract with the National Stock Exchange (NSE) to analyse data and identify cyber vulnerabilities. As part of their role, ISEC received a hard drive containing pre-recorded call data from NSE on a weekly basis. They were responsible for identifying suspicious calls related to data and information security. The call recording was initially conducted using a system installed by M/s Comtel from 2009 to 2012. Subsequently, a set-up installed by NEXSUS Techno Solutions Pvt. Ltd. was used.

A complaint was lodged with CBI alleging that ISEC, in collaboration with others, illegally intercepted Mahanagar Telephone Nigam Limited (MTNL) lines at NSE between 2009 and 2017 and recorded calls without the consent of various NSE officials.

Based on the complaint, FIR was registered, leading to the arrest of Mr. Sanjay Pandey under various sections of the Indian Penal Code, the Information Technology Act, the Indian Telegraph Act, the Indian Wireless Telegraphy Act, the Prevention of Corruption Act, and the Prevention of Money Laundering Act for the involvement in the activities of ISEC during the mentioned period.[3]Further, based on the above registered FIR, Enforcement Directorate (ED) also registered a case under the Prevention of Money Laundering Act, 2002 (PMLA) against Mr. Sanjay Pandey[4]

Mr. Sanjay Pandey, who allegedly played an active role in ISEC during the stated period, was arrested by the ED. He subsequently filed a bail application with the High Court of Delhi.

The case involved the interpretation of several laws, including the Indian Penal Code, 1860,[5]Information Technology Act, 2000,[6] Indian Telegraph Act, 1885,[7] Indian Wireless Telegraphy Act, 1933,[8] Prevention of Corruption Act, 1988,[9] and the Prevention of Money Laundering Act, 2002. The ED argued that the tapping and recording of phone calls by ISEC without the consent of the individuals concerned amounted to a breach of privacy and violated various sections of the Telegraph Act and Indian Wireless Telegraphy Act. Additionally, the ED contended that the revenue generated by ISEC for providing such services constituted the “proceeds of crime” under the PMLA.[10]

ISEC, on the other hand, maintained that NSE had been monitoring calls from the landlines installed in its premises since 1997. According to ISEC, the proposal involved providing NSE with a hard drive containing pre-recorded call data, which ISEC would analyse and submit reports based on its findings. ISEC argued that their work required flagging suspicious calls based on content and identifying system vulnerabilities, all with the knowledge and consent of NSE.

Observations of the High Court of Delhi

During the bail proceedings, the High Court of Delhi made significant observations regarding the violation of the right to privacy through the tapping of phone lines or recording of calls without consent. The court held that such activities amounted to a breach of privacy, violating the fundamental right enshrined under Article 21 of the Constitution. The court emphasized that phone calls should not be recorded unless there is consent from the individuals involved.

The court also analysed the allegations under various laws. With respect to the offenses under the Indian Penal Code, the court noted that the prosecution had not established the identity of the victim who had suffered a wrongful loss. The complaint lacked specific details regarding the customers who were allegedly deceived or cheated. The court highlighted the absence of any complaints or witnesses from these alleged customers.

Regarding the offenses under the Prevention of Corruption Act, the court concluded that since NSE is a private entity, the provisions of the PC Act were not applicable in the contractual dealings between ISEC and NSE. The court stated that no offenses under Section 13 of the PC Act could be established in the absence of any allegations related to the giving or receiving of bribes or illegal gratification.

Furthermore, the court noted that the offenses under the Telegraph Act and Indian Wireless Telegraphy Act, which penalize the tapping and recording of phone calls without consent, were not scheduled offenses. The court emphasized that the offense under Section 72 of the IT Act, which deals with breach of confidentiality and privacy, was also not established in this case.

Based on these observations, the court held that no scheduled offense was prima facie established in the present case. Therefore, the court concluded that no proceeds of crime had been generated, as there was no criminal activity related to a scheduled offense. The court referred to the dicta of the Supreme Court in the case of Vijay Madanlal Chaudhary &Ors. vs. Union of India &Ors.[11] and granted bail to Mr. Sanjay Pandey.

Conclusion

The judgment in the case of Sanjay Pandey vs. Directorate of Enforcement highlights the paramount importance of privacy protection and the right to privacy enshrined in Article 21 of the Constitution of India. The court’s observations establish a clear stance on tapping phone lines or recording calls without consent as a breach of privacy and a violation of the fundamental right guaranteed under Article 21 of the Constitution. The judgment emphasizes the importance of consent and proper authorization when engaging in activities that infringe upon an individual’s privacy.

In the digital era, where personal communication often occurs through telephonic conversations, the protection of privacy is crucial. The High Court of Delhi’s observations, in this case, provides clarity and guidance regarding the legal provisions surrounding such activities.

The judgment sets a strong precedent in upholding the right to privacy and reinforces the need for a robust framework to protect individuals from unwarranted intrusion into their personal communications. It sends a clear message that any violation of privacy through the tapping of phone lines or recording of calls without consent will not be tolerated and will be considered a breach of the constitutional rights of individuals.

FAQs

What is the significance of Article 21 of the Indian Constitution in relation to the right to privacy?

Article 21 of the Indian Constitution guarantees the right to life and personal liberty. It has been interpreted by the courts to include the right to privacy as a fundamental right. This means that individuals have the right to privacy and protection of their personal information, including their communications.

What constitutes a violation of the right to privacy in the context of phone call tapping or recording?

In the case discussed the High Court of Delhi held that tapping phone lines or recording calls without the consent of the individuals involved amounts to a breach of privacy. Such activities are considered a violation of the fundamental right to privacy enshrined in Article 21 of the Indian Constitution.

Are there any specific laws in India that regulate the tapping of phone lines or the recording of calls?

Yes, the Indian Telegraph Act, of 1885, and the Indian Wireless Telegraphy Act, of1933, contain provisions related to the interception and monitoring of telecommunications. These laws require proper authorization and consent for tapping phone lines or recording calls.

[1] The Constitution of India, 1950

[2]BAIL APPLN. 2409/2022 & CRL.M.(BAIL) 957/2022

[3]FIR/RC No. RC 2212022E0030 dated 07.07.2022 at PS – EO-III, CBI, Delhi

[4]ECIR/DLZO-I/28/2022 

[5]Indian Penal Code, 1860 [Act no 45 of 1860], Sections 120-B read with 409 and 420.

[6]The Information Technology Act, 2000,[Act no 21 of 2000],Sections 69B, 72, 72A.

[7]The Indian Telegraph Act, 1885 [Act no 13 of 1885], Sections 20, 21, 24 & 26

[8]The Indian Wireless Telegraphy Act, [Act no 17 of 1933], Sections 3 & 6.

[9]The Prevention of Corruption Act, 1988 [Act no. 49 of 1988], Section 13(2) r/w Section 13(1)(d).

[10]Prevention of Money Laundering Act, 2002, [Act 15 of 2003], Section 4

[11]2022 SCC OnLine SC 929

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