Privacy on Trial: Phone Tapping and WhatsApp Messages as Digital Evidence

 

Privacy on Trial: Phone Tapping and WhatsApp Messages as Digital Evidence

 

Sidhant Malik

Advocate

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INTRODUCTION

The jurisprudence on privacy in India is a study in contradictions. The Nine-judge bench in Justice K.S. Puttaswamy v. Union of India (2017) elevated privacy to the status of a fundamental right under Article 21, recognising it as the very essence of dignity and liberty. Yet, in practice, this constitutional promise is continually diluted by judicial balancing in favour of State interests.

Courts have sanctioned phone tapping under the Telegraph Act, admitted WhatsApp chats and electronic records as evidence, and permitted expansive surveillance through Aadhaar and CCTV monitoring, provided it meets the tests of “legality, necessity and proportionality.” Yet, real-world controversies, from the Pegasus spyware revelations to forced disclosure of Aadhaar for basic services, underscore the fragile state of informational autonomy in India. Thus, while privacy has been judicially recognised as a right, its contours remain precariously subject to competing claims of security, governance, and public order.

EVOLUTION OF PRIVACY RIGHTS IN INDIA

The Indian Constitution did not originally mention the right to privacy. Courts initially rejected privacy as a fundamental right, but later cases gradually recognized its importance.

Kharak Singh v. State of UP (1963) AIR 1963 SC 1295

Facts: Police conducted surveillance on Kharak Singh, including night visits at his house.
Issue: Was surveillance violating personal liberty under Article 21?
Judgment: Majority held that there was no fundamental right to privacy. Minority opinion (Justice Subba Rao) dissented, arguing that privacy is part of liberty.

Gobind v. State of MP (1975) (1975) 2 SCC 148

Facts: Police surveillance on a man suspected of dacoity.
Judgment: Supreme Court hinted that privacy could be a fundamental right in future cases.
Seeds of privacy rights were planted.

Puttaswamy v. Union of India (2017) (2017) 10 SCC 1

Facts: Retired Judge K.S. Puttaswamy challenged the Aadhaar scheme, where the Government collected citizens' fingerprints and iris scans.
Issue: Does the Constitution guarantee a Right to Privacy?
Judgment: A nine-judge bench of the Supreme Court held that privacy is a fundamental right under Article 21. It includes physical privacy (body searches, surveillance) and informational privacy (data protection).
Analysis: Any law violating privacy must pass tests of legality, necessity, and proportionality.

IMPORTANT PROVISIONS

Section 69 of the Information Technology Act, 2000, gives authorities the power to intercept, monitor, or decrypt digital information. 

Under sub-clause (3) of Section 69, intermediaries, service providers, or anyone in charge of a computer resource must assist the authorities. They must provide access or decrypt the required data.
Non-compliance may lead to imprisonment for up to seven years and a fine.
While the law lists clear grounds for interception, experts raise concerns.

The major issue is the lack of judicial oversight. This gap gives the executive wide powers with minimal checks.
Authorities can issue orders under Section 69 on specific grounds:

v Sovereignty and integrity of India

v Defence and security of the state

v Friendly relations with foreign states

v Public order

v Prevention of incitement to commit cognizable offences

v Investigation of any offence

Section 5(2) of the Indian Telegraph Act, 1885 allows government to tap phones in cases of public safety, national security, or preventing crime. Approval from the Home Ministry is mandatory.

DATA PROTECTION LAW (2023)

The Digital Personal Data Protection Act, 2023 regulates how companies like WhatsApp, Facebook, and Google handle personal data. It grants rights to users: Right to Consent, Right to Correction, and Right to Erasure. For laypersons, this means India now has a privacy law similar to GDPR in Europe.

PHONE TAPPING AND SURVEILLANCE

People’s Union for Civil Liberties (PUCL) v. Union of India
(1997) 1 SCC 301 : AIR 1997 SC 568

Facts: Challenge to widespread government phone tapping.
Judgment: Supreme Court upheld the power but set safeguards only with Home Secretary’s approval, limited duration, and judicial oversight.

WHY IT IS IN NEWS?

The Madras high court, recently held that phone tapping, even to detect a crime, amounts to the violation of an individual’s fundamental right to privacy, unless it is strictly justified under a procedure established by law.

The court said that the existing provisions of the Telegraph Act and Telegraph Rules do not permit covert interception of phone calls or messages of an individual merely to detect the commission of a crime. Such surveillance, is permissible only in cases of public emergency or in the interest of public safety.

Justice N Anand Venkatesh, accordingly, quashed an authorisation issued by the Union ministry of home affairs (MHA) in 2011 for tapping the phone of a Chennai resident involved in an alleged case of bribery and for making the results of such interception available to the Central Bureau of Investigation (CBI).

The judge emphasised that corruption cases must be investigated lawfully, and constitutional protections cannot be bypassed even in serious crimes.

Justice Venkatesh said that a citizen’s “right to privacy is a fundamental right protected under Article 21 of the Constitution, as well as part of the broader freedoms guaranteed by Part III of the Constitution”.

Citing the Supreme Court’s judgments in cases such as Gobind vs the State of Madhya Pradesh, PUCL vs Union of India, and the landmark Puttaswamy judgement, the high court emphasised that privacy is an inherent and essential part of personal liberty, though it remains subject to reasonable restrictions under the Constitution and There can be no doubt that telephone tapping would infringe Article 21 unless such infringement has the sanction of a procedure established by law.

Justice Venkatesh also cited the observations made by former Supreme Court judge justice SK Kaul’s concurring remarks in the Puttaswamy judgment and said the same underscored the need to recognize and adapt to evolving constitutional values, “replacing outdated interpretations with a modern understanding of individual rights”.

The court quashed the phone tapping order against the petitioner, P Kishore, after noting that though the MHA had granted such permission saying it was for “preventing incitement to the commission of an offence”, any law enforcement agency was not empowered to “resort to covert surveillance by tapping the mobile phones to obtain information regarding the commission of an alleged crime”.

The MHA, in its affidavit filed before the court, had claimed that it had passed the phone tapping order “in strict compliance” with section 5(2) of the Telegraph Act and rule 419-A of the Telegraph Rules which grant the Centre or state governments the power to intercept or detain messages during a public emergency or in the interest of public safety.

Since the petitioner was having a conversation about committing an offence, it was intercepted in the interest of public safety preventing further incitement to the commission of an offence, MHA had said.

Justice Venkatesh however, noted that in previous judgments, the Supreme Court clarified that the occurrence of public emergency or the interest of public safety could never be a secretive condition or situation.

“Either of the situations would be apparent to a reasonable person. Covert surveillance of the type conducted in this case definitely cannot fall within the aforesaid two situations contemplated under section 5(2) of the Act,” Justice Venkatesh said.

[P. Kishore Vs Secretary to Government 2025 SCC Online Mad 3053]

WHATSAPP MESSAGES/CHATS AS EVIDENCE

In the contemporary digital age, WhatsApp chats have emerged as a pivotal form of electronic evidence in judicial proceedings. The Indian Evidence Act, 1872, read with the Information Technology Act, 2000, accords recognition to electronic records, thereby placing WhatsApp conversations within the ambit of admissible evidence. However, the admissibility of such chats is not automatic; it is contingent upon strict compliance with Section 65B of the Evidence Act [Now 63[4] of BSA, 2023], which mandates a certificate to authenticate electronic records.

The Supreme Court in Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473 laid down the principle that secondary electronic evidence, such as printouts or screenshots of WhatsApp messages, is inadmissible without a valid Section 65B certificate. This position was further crystallized in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1, wherein the Court reiterated that electronic records without proper certification cannot be relied upon as evidence. Moreover, in Ambalal Sarabhai Enterprises Ltd. v. K.S. Infraspace LLP (2020) 15 SCC 585, the Supreme Court observed that WhatsApp messages, although admissible, carry limited evidentiary value unless corroborated by other evidence.

Thus, in today’s digital era, WhatsApp chats are judicially recognized as potential evidence, but their probative value depends on compliance with statutory requirements of authenticity and reliability, ensuring that the sanctity of digital justice is preserved.

WHATSAPP MESSAGES IN MATRIMONIAL DISPUTES

Re: [Vibhor Garg Versus Neha, 2025,] An appeal filed before Hon’ble Supreme Court of India, against the judgment passed by the Punjab and Haryana High Court, where the High Court had ruled that recorded conversations between a husband and wife could not be the basis for deciding a petition under Section 13 of the Hindu Marriage Act, 1955 the Division Bench of BV Nagarathna and Satish Chandra Sharma, JJ. held that the founding rationale for Section 122 of the Evidence Act, 1872, [which talks about confidential/privileged communications] as acknowledged by the Law Commission and various High Courts, was to protect the sanctity of marriage rather than focusing on the right to privacy of the individuals involved.

Consequently, the Court stated that the right to privacy is not a relevant consideration in situations where the privilege under Section 122 is not granted, such as in proceedings between spouses (an exception recognized in Section 122 itself).

The Court emphasised that spousal communications were deemed privileged under Section 122 for the purpose of protecting the sanctity of the marital relationship, and not for safeguarding individual privacy rights.

The Issue  before the Hon’ble Supreme Court was that Whether the High Court was justified in setting aside the order of the Family Court and thereby declining permission to the husband to corroborate his evidence in the form of what has been recorded on his mobile phone and by means of a compact disc (CD) and transcription of the same containing the communication made by the wife to the husband to prove his case for seeking divorce?

The scope of Section 122 of the Indian Evidence Act, which provides a rule of privilege protecting the disclosure of communications made between spouses during a valid marriage, subject to limited exceptions. Unlike Section 120, which concerns the competency of spouses to testify against each other, Section 122 focused on the admissibility of privileged communications. The Court noted that Section 122 contains two distinct parts—one addressing compellability and the other permissibility, separated by a semi-colon and meant to be read disjunctively.

The first part, on compellability, imposed a blanket bar on compelling a spouse to disclose any communication received from the other spouse during a valid marriage. This protected the right to marital privacy unconditionally.

The second part, on permissibility, imposed an even stricter standard. Even if a spouse voluntarily wished to disclose such communication, the court could not admit it unless the other spouse (who made the communication) or their legal representative gave explicit consent.

In effect, consent had to come from the communicator, not the recipient or the court. This prohibition was subject to two exceptions: Proceedings between the spouses themselves. Criminal proceedings involving a crime committed by one spouse against the other. The Court clarified that this privilege: Applied only to legally wedded spouses and not to live-in or other relationships. Attached at the time of communication, not when evidence was later offered in court. Survived even after the dissolution of marriage if the communication occurred during the subsistence of the marriage. Barred only the spouse who received the communication, not the one who made it. Did not bar third parties from testifying about communications they overheard or also received.

Further, the Court emphasised that the term “any communication” was broad, covering oral, written, or non-verbal (e.g., sign language) communications and not limited to confidential or private exchanges. However, the term “made to him/her” indicated that it must be a message conveyed by one spouse to the other, not a general dialogue or mutual conversation.

The Court clarified that the bar under Section 122 applied specifically to the disclosure of a “communication” by a spouse, and not to the communication itself. A spouse could neither be compelled nor permitted to enter the witness box to disclose such communications. However, the communication could still be brought before the court through other lawful means, as long as those means were not barred by Section 122 or other provisions of the Evidence Act.

For instance, if a husband wrote a letter to his wife confessing to a murder, the wife would be barred under Section 122 from disclosing the content of that letter in court. However, if the letter was recovered by the police during investigation and produced in evidence, then Section 122 would not apply, and the letter could be admitted as evidence. Furthermore, the Court clarified that the bar did not extend to acts witnessed or experienced by a spouse.

Whether a secretly recorded conversation can be permitted to be given in evidence? The Court noted that it had previously addressed the issue of collecting evidence through illegal or morally questionable means, such as unauthorized recordings or phone tapping, often without the knowledge or consent of the person being recorded. Accused persons frequently argued that such evidence was inadmissible due to the investigative authorities not following proper legal procedures. However, the Court held that the mere fact that evidence was obtained unlawfully did not automatically render it inadmissible. Instead, the admissibility of such evidence depended on its relevance, reliability, and accuracy.

The Court reiterated that Section 122 of the Evidence Act comprises two parts: compellability and permissibility. In the present case, the issue revolved around the second part, i.e., the permissibility of disclosing privileged communication in court.

The Court held that under normal circumstances, the husband would be barred from disclosing any communication made to him by his wife during the subsistence of the marriage. However, in this case, the bar was lifted by the express exception provided under Section 122, since the communication was being disclosed in a proceeding between the spouses, a divorce petition filed under Section 13 of the Hindu Marriage Act, 1955. Therefore, the wife’s objection based on Section 122 was held to be unacceptable.

The Court also addressed Section 14 of the Family Courts Act, 1984, which allows Family Courts to accept evidence beyond the strict rules of the Evidence Act. However, it noted that this extraordinary power need not be invoked here, as the Evidence Act itself permitted the admission of such communication under its exception clause.

The Court highlighted that the law of evidence is designed to aid judges in arriving at a just decision by relying not only on direct evidence but also on circumstantial evidence, presumptions, and adverse inferences. It stated that, in the digital age, technology enables the accurate recording and preservation of past events, and excluding such reliable material on the grounds of a privacy violation would defeat the purpose of the Evidence Act.

 The Court further noted that this was precisely why Parliament amended the Evidence Act to include Section 65B, which explicitly addresses the admissibility of electronic records. Thus, electronically stored conversations, when authenticated in compliance with Section 65B, are not only relevant but also admissible, and their exclusion would undermine both legal reasoning and technological progress in the justice system.

Whether such recorded evidence should be disallowed solely on the ground that it is violative of the privacy of one of the spouses?

The Court observed that Section 122 of the Evidence Act had not been challenged in the present proceedings. It reiterated that the protection of privileged communication between spouses under Section 122 exists in the context of preserving marital intimacy and trust. However, the Court emphasised that the exception under Section 122, which allows such communication to be disclosed in proceedings between the spouses themselves, must be interpreted in light of the right to a fair trial, a core element of Article 21 of the Constitution of India.

CONCLUSION

The trajectory of privacy jurisprudence in India reflects a constant tension between individual liberty and State power. While the Supreme Court in Puttaswamy firmly established privacy as a fundamental right under Article 21, subsequent judicial interpretations and executive practices show that this right is far from absolute. Phone tapping, surveillance, and the use of WhatsApp messages as evidence highlight the delicate balance courts must maintain between protecting constitutional freedoms and ensuring national security or public order.

Yet, the absence of robust judicial oversight, coupled with the sweeping powers vested in the executive under the Telegraph Act and the IT Act, raises legitimate concerns about misuse and arbitrary intrusion. The recent pronouncements of the Madras High Court reiterate that privacy cannot be casually sacrificed at the altar of investigation, and any invasion must strictly comply with the tests of legality, necessity, and proportionality.

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