The Indian Evidence Act, 1872 primarily deals with all types of evidence and its admissibility in Court. There are only 2 types of evidence which are dealt by the Indian Evidence Act, 1872, viz. Oral evidence and Documentary evidence. With increasing technological advancements, tape recorded evidence is playing an increasingly important role in Courts in various cases. Often, they are catalysts in exposing scandals and scams (and in that context, they often take the form of ‘stings’).
These days, the procedure of giving tape recorded evidence before the Court in both, civil and criminal matters have become very common. The relationship between law and technology has always been a complex one. The lawyer is tilted towards technology whenever required. Courts have often talked about the utility and admissibility of such tape recorded conversation in various judicial pronouncements.
With increasing technological advancements, tape-recorded evidence (including ‘stings’) is playing an increasingly important role in Courts. Considering the digital roots of several crimes, it is necessary for the legal professional to remain well informed about the latest technologies in this field.
The Supreme Court, in Yusufali v. State of Maharashtra [(1967) Bom L.R. 76 (SC)], observed that "if a statement is relevant, an accurate tape record of the statement is also relevant and admissible. The time and place and accuracy of the recording must be proved by a competent witness and the voices must be properly identified". The court noted that as tape recordings can be easily tampered with, “the evidence must be received with caution and must be admitted only after the court is satisfied beyond reasonable doubt that the record has not been tampered with”.
(1) the voice of the speaker must be identified by the maker of the record or by others who recognise his voice. Where the voice is denied by the maker (sic) it will require very strict proof to determine whether or not it was really the voice of the speaker.
(2) The voice of the speaker should be audible and not distorted by other sounds or disturbances.
(3) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence.
(4) Every possibility of tampering with or erasure of a part of the tape recorded statement must be ruled out; (sic)
(5) The statement must be relevant according to the rules of evidence and
(6) The recorded cassette must be carefully sealed and kept in safe custody.
Section 65B(1) of the Indian Evidence Act, 1872 deals with admissibility of electronic records as evidence in a court of law, and the section clearly mentions that recorded evidence is to be treated as documentary evidence. But some people are of the opinion that such evidence goes against the right to privacy enumerated under Article 21 of the Constitution of India. As the Right to Privacy encompasses physical privacy, informational privacy and decisional autonomy. However, the right to privacy is not an absolute right and is subject to certain reasonable restrictions. The interplay of technology and right to privacy in the digital age needs to be closely scrutinised. The test to decide the validity of any such restriction is that it is reasonable, based on fair procedure and free from arbitrariness or selective targeting or profiling. In simple terms, it means that there should be balance between public interest and right to privacy.
The dangers to privacy in this information-rich age can originate not only from the State but from non-State actors as well. The development and regulation of such a regime requires a careful and sensitive balance between individual interests and legitimate concerns of the State. The legitimate aims of the State would include, for instance, protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits. So, telephonic conversations between two people can also be equated to data, and hence strict adherence to data protection and privacy infringement must be complied with and such rights cannot be breached by mere suspicion without following a reasonable procedure.
With the advancement of technology, admissibility of tape-recorded conversations have emerged as a positive and effective change in legislation. Considering the digital roots of several crimes in today's world, it is necessary for the legal professional to remain well informed about the latest technologies, and availability of various resources that can be admitted as evidence. There definitely are chances of charges that there has been tampering/ erasure when using such forms of evidence, but their importance and relevance cannot be overlooked.
Rajesh is a qualified CA & CWA. He has served as a Director of PricewaterhouseCoopers, a Director of a large urban co-operative bank and Dean of a B-School over the years. He has taught Finance for over 20 years & trained participants from several Companies and B-Schools. He is an educator and a learner (he believes both are inextricably intertwined), and a knowledge product developer. Law Gyani, which he has founded to help Law Students with their exam preparations, and to understand nuances of the law.
Law Gyani’s mission is to make available better, easier-to-use and richer content to the legal community. Our first offering is a Q&A product, aimed at helping LL.B. students to appear for their examinations. While we have begun with answering questions from the last 10 years’ question papers of the Mumbai University’s 3-Year LL.B. course, Law Gyani is committed to expanding the content to cover Q&A on all law papers of most Universities in India.