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The wife denied some portions of the conversations. The Court observed that the purity of the relation between husband and wife is the basis of marriage, and the husband was recording her conversation on telephone with her friends and parents in India without her knowledge.
Hence, this is clear infringement of right to privacy of the wife, where a husband is of such a nature and has no faith in her wife, even regarding her conversation with her parents. In such circumstances, the institution of marriage itself becomes redundant. Also, there should be an element of trust between a marital relationship and in any case the right of privacy of the wife is infringed by her husband by recording her conversation on telephone to others.
Such a husband who has resorted to illegal means which are not only unconstitutional but also immoral, cannot later on, try to rely on the evidence gathered by him by such means. Later on, the Radia tapes controversy related to the taped conversations of politicians, industrialists and corporate, bureaucrats, officials, journalists and aides, that were taped by the Indian Income Tax Department in — These tapes led to government and public accusation that these calls evidence the planning of the 2G spectrum scam and other criminal and unconstitutional activities.
The Court is not concerned with how it was obtained. The law concerning admissibility of stolen evidence in England is a lot more flexible, as opposed to India. A notable factor of significance in determining whether tapping may be appropriate is the seriousness of the offence being investigated.
When a serious crime is committed coupled with significant breach of the code, evidence obtained is admissible. In R v Khan [xx] , evidence was deemed admissible with the Court acknowledging that the seriousness of the crime being investigated was of importance and was seen to outweigh the improper conduct of the police. Further, in that case trespass to property, breach of privacy and also damage to such; along with the usage of listening devices in private premises were found in the conduct of the police.
Hence, the value of evidence that the police anticipate discovering through improper conduct may be of significance in justifying a decision to so act. Additionally, there is no consensus as to what should be admissible in evidence and what should not though as recent cases reveal there seems to be a growing tendency to move away from the exclusionary principle, in favor of admitting tape-recorded evidence in a Court of law.
In this case the European Court of Human Rights noted that in the absence of a proper legislative framework in the UK the practice of telephonic interception was insufficiently grounded in law to allow it to be justified under Article 8 2 of the European Convention on Human Rights.
Section 2 2 of the RIP Act dealt with the intercepting of a communication in the course of its transmission by a telecommunication system. Additionally, there is control exerted by the Home Secretary over the granting of telephone intercept warrants to the Director General of Intelligence and Security.
Such authorization is provided under an Interception Warrant which must name or describe either one person as the Interception Subject or a single set of premises where the interception is to take place.
It must be noted that RIP Act establishes a Tribunal which can investigate on whether there was a warrant and whether it was properly issued. Thus, where it is found that an Interception Warrant has been improperly issued, the Tribunal has power to order compensation and the destruction of the recorded material. Additionally, if the interception takes place without a warrant, then the Director of Public Prosecution must consent to criminal prosecution.
Hence, in the UK it is now an offence for any person intentionally and without lawful authority to intercept any communication in the course of its transmission through a public telecommunication system and — except in specified circumstances — through a private telecommunication system.
The United States of America has tended to favor the exclusionary rule of evidence but more attention has been given to the right to privacy enshrined in the American Constitution. This principle is based on the theory that it is a central function of the Courts to encourage lawful action by the State. Also, every State in the USA has its own laws that lay down procedures relating to telephone tapping.
Additionally, at the Federal level the Crime Control and Safe Streets Act of , has prohibited the willful interception of telephone communication by means of any mechanical, electronic, or other device without an applicable exemption. Furthermore, Federal statutes do not enjoy superiority over State laws unless the call or the tap crosses state lines. Thus, while the U. In the Olmstead case, the majority judgment was in favor of adjudicating the issue of telephone tapping outside of the domain of right to privacy and the Fourth Amendment.
This was cited in when the Supreme Court in the Katz case declared that the protection of the Fourth Amendment would be extended to all recording of oral statements overheard, without any technical trespass under property law, i.
In overruling the Olmstead judgment, the Court held that recording by police of conversation in public telephone booth was in violation of the Fourth Amendment because the speaker had a reasonable expectation of privacy in the booth.
However, in the following decades, there were as many as 32 judgments that expressed consenting and dissenting opinions with Katz judgment. Although, English law appears to have accepted even taped conversations in foreign languages as evidence- in the R v. Maqsud [xxii] case [where the conversation recorded was in the Punjabi dialect].
But, the Courts in the US have appeared more reluctant to do the same. This Act, like POTA in India, liberalized the telephone tapping procedures and aimed at making wiretapping an easier and less procedure-ridden operation. Under Section , the FBI was given the power to secretly conduct a physical search or wiretap , primarily to obtain evidence of crime without proving probable cause of crime.
This provision goes against the spirit of the Fourth Amendment to the Constitution that requires the Government to prove to a judicial officer that it has probable cause of crime before it conducts an invasive search [like telephone tapping], for evidence of any crime.
Recently, the Obama administration has come under increased attack when it revealed that it had been keeping tabs on the phone records of millions of Americans for the past few years despite the justification that it was done in light of national security.
Under S. Investigative measures such as wiretapping have been dealt with strictly by the Canadian Supreme Court. The Court laid down a few requirements:. Henceforth, even in times of investigative necessity, the applicant needs to establish in the affidavit that there is no other investigative tool available besides wiretapping for the collection of evidence. The Supreme Court of Canada in a recent judgment, has ruled that Section, Criminal Code54which authorizes the police officers to intercept a private telecommunication without a judicial warrant, is constitutionally invalid.
Judge Davies while declaring the provisions of S. The cardinal rule requires the investigating authorities to first intercept those private communications that may be lawfully intercepted pursuant to S. The significance of a judicial warrant to intercept private telephonic conversations of an individual has been emphasized in the judicial pronouncements of the American as well as the Canadian Courts.
Even in the most compelling and demanding circumstances, the Court has been reluctant to discard the crucial qualification of a prior Court warrant for wiretapping. The vast strides that have been made in the field of technology in the recent past have brought people closer like never before.
So, as long as criminals and terrorists seek to misuse technology in pursuance of their evil motives, Governments all over the world will continue to use technology to invade our private spaces. Hence, this brings us to the question; does it take a thief to catch a thief? Then, should States imperil the liberty and the right to privacy of entire populations in order to apprehend a miniscule number of dangerous deviants?
The Human Rights activists and liberal intellectuals believe that Privacy is too important a right to surrender to the State without a fight. The decision of the Supreme Court in the Malkani case was disappointing because it left the police free to steal evidence and the Court to admit the stolen evidence.
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