Table of Contents
Introduction
Call recording is the ability to record a voice chat over an audio source. Active calls or conference calls can be recorded and then stored as a digital file to be copied or listened to at a later stage. Call recording is also known as phone recording or voice recording.
Call recording works with the accumulation of hardware and software that taps into phone lines and records the chats. The digital file is stored for playback or to generate a copy. Legally, you cannot record a call without notifying applicants. The recording can be set to start automatically or will be initiated manually by the person. In most choices, your chosen interface will allow you to activate the recording feature. There are several call recording solutions available on the market and not all will be installed.
Right to Privacy
Article 21 in the Constitution of India, 1949 is the fundamental legal provision governing the right to privacy. The right to privacy of an individual is a dominant concept that cannot be ignored in the view of electronic evidence. Though, if an authority is legally authorized then these telephone chats are not private any longer, thus they can be collected or restored as judicial evidence.
When there is a matter of public emergency or in the interest of public safety, the right to privacy in the situation of recording calls is important.
In India, Legality of Call Recording
- INFORMATION TECHNOLOGY ACT, 2000
- INDIAN EVIDENCE ACT, 1872
- INDIAN TELEGRAPH ACT, 1885
INFORMATION TECHNOLOGY ACT, 2000
SECTION 2 (t) of IT ACT,2000 electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer-generated microfiche. SECTION 2 (ta)"electronic signature" means authentication of any electronic record by a subscriber by means of the electronic technique specified in the Second Schedule and includes digital signature; SECTION 2 (tb) "Electronic Signature Certificate" means an Electronic Signature Certificate issued under section 35 and includes Digital Signature Certificate
The electronic record means which includes sound stored received or sent in an electronic form.
INDIAN EVIDENCE ACT, 1872
SECTION 85B In any proceedings involving a secure electronic record, the Court shall presume unless the contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates. In any proceedings, involving secure [electronic signature], the Court shall presume unless the contrary is proved that— (a) the secure [electronic signature] is affixed by the subscriber with the intention of signing or approving the electronic record; (b) except in the case of a secure electronic record or a secure [electronic signature], nothing in this section shall create any presumption, relating to authenticity and integrity of the electronic record or any [electronic signature.]
It deals with the law regarding the alteration of recorded electronic evidence. The authenticity and integrity of this electronic record are measured by a digital signature. This signature must be affixed to sign the record.
INDIAN TELEGRAPH ACT, 1885
Section 5 Power for Government to take possession of licensed telegraphs and to order interception of messages.— (1) On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government, or any officer specially authorised in this behalf by the Central Government or a State Government, may, if satisfied that it is necessary or expedient so to do, take temporary possession (for so long as the public emergency exists or the interest of the public safety requires the taking of such action) of any telegraph established, maintained or worked by any person licensed under this Act.10[5. Power for Government to take possession of licensed telegraphs and to order interception of messages.—(1) On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government, or any officer specially authorised in this behalf by the Central Government or a State Government, may, if satisfied that it is necessary or expedient so to do, take temporary possession (for so long as the public emergency exists or the interest of the public safety requires the taking of such action) of any telegraph established, maintained or worked by any person licensed under this Act." (2) On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order: Provided that the press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section.]
Section 5 means the power for the Government to take possession of licensed telegraphs and to order interception of messages. it provides a right to the Central or the State government to obtain telegraphs in the interest of public safety. Hence, it can take hold of electronic messages given that there is a situation of public emergency.
Admissibility of call recordings in courts
Admissibility of call recordings in courts
In Section 65B of the Indian Evidence Act, all the laws regarding the electronic record and the admissibility of electronic records are shown as evidence in Courts in accordance with the provisions and guidelines given in section 65B.
Any information that is stored in an electronic record with the help of a computer can be considered acceptable if it satisfies all the conditions mentioned in the section which are as follows;
Time when the evidence is stored on the computer
it is important that the computer must be in regular use to store or process information. Moreover, the person showing the evidence by way of electronic media must have lawful control over the device.
Time period
During the specified period, electronic records or information from which it is included is fed to computers regularly
The computer was working properly or not
If the working of the computer was not proper then the chances of degrading the evidence in Courts may arise
Retrieved or received
The information contained in the electronic record is retrieved or received from such information feed created in the computer.
Important Law Cases
- Ram Singh v. Colonel Ram Singh (1986)
- R.M. Malkani v. the State of Maharashtra (1973)
R.M. Malkani v. the State of Maharashtra (1973)
Supreme Court of India definite that the most important legislation within the context of legal tape recordings is the Indian Telegraph Act. This case rotated around the question of using tape-recorded chats as a basis for criminal prosecution of a person.
The evidence under question was illegally obtained from tape recordings and so they were in breach of Section 25 of the Indian Telegraph Act. Hence, such evidence was inadmissible.
In this case, a doctor who was guilty of the post-operative death of a patient in a hospital tried to discharge his criminal prosecution over bribing. The council for the plaintiff challenged the admissibility of the tape recordings while recommending a gross violation of Articles 20 and 21 of the Indian Constitution. Though, the Court held that the tape recordings were admissible as evidence even in spite of the violation of the Telegraph Act.
Ram Singh v. Colonel Ram Singh (1986)
Where the plaintiff opposed the end of voting in some parts of a village. The matter was regarding the admissibility of statements that were recorded in the toll booth.
The Court declared the tape recording inadmissible.
Thus, the Supreme Court discharged the appeal on the ground that the tape recordings were not strong enough to support the evidence required to prove the matter raised by the plaintiff. The Court also stated that the recording did not promote any kind of declaration in the public. Hence, relating the right to privacy, the protection of call recordings, audio, and other forms of digital evidence should be the same as other gadgets.
There are some circumstances that must be fulfilled while using the voice recordings as evidence in Courts in India:
- It is important to duly recognize the voice of the speaker by the maker
- The verification of the voice must not be questioned in any situation
- In case the voice verification is questioned then it must be proved to be genuine
- No moderating or rising must be done with the chat. The complete conversation must be presented as evidence in court.
- Declarations given in the electronic record must be relevant.
- Recordings must be kept in official custody
- Voice recorded in the media must be clear without any disturbance.
Conclusion
All we conclude is that an authentic voice recording can be used as evidence in court if the order proceedings are authorized. As per the Indian Evidence Act if a crime is recorded through electronic media, then it will be considered a source of fact. it is important to prove its genuineness. In case evidence is not found to be genuine, it will not be admissible in the Court as evidence.
FAQ
- Can voice recording be used as evidence in court?
Numerous courts have given their consent to voice recording as admissible evidence
- Is Voice recording legal in India?
If you are recording audio chats of others without having their consent from all parties, then it will be a violation of privacy which is definite under Article 21 of the Constitution of India.
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