It is very significant to note that none other than the Himachal Pradesh High Court at Shimla in a most learned, laudable, landmark, logical and latest judgment titled XXX vs YYY in CMPMO No.665/2022 and cited in Neutral Citation No.: 2024:HHC:9884 that was pronounced as recently as on October 17, 2024 has most sagaciously rejected a plea to place the recording of a private telephone conversation as evidence in a matrimonial case on the ground that it would amount to a violation of the fundamental right to privacy. It must be mentioned here that the Single Judge Bench comprising of Hon’ble Mr Justice Bipin Chander Negi very strongly emphasized that the right to hold a telephone conversation in private would certainly fall under the right to privacy. It is in the fitness of things that the Bench without mincing any words said in no uncertain terms underscoring that, “A telephone conversation is an important facet of an individual’s private life. The right to holding a telephone conversation in the privacy of one’s home/office without interference can certainly be claimed as a ‘Right to Privacy’.” No denying it!
It must be disclosed here that the Shimla High Court passed this most commendable judgment while dismissing a plea that had been filed by a man who sought to place on record a recording of a telephone conversation that allegedly took place between his wife and her mother. What also must not go unnoticed is that the Court dismissed the plea of the husband after reiterating most robustly that telephone tapping or such illegal means of collecting evidence violates Article 21 (life and personal liberty) of the Constitution of India unless the same is permitted under the procedure established by the law. What also should not escape our attention is that pertaining to this, the Shimla High Court deemed fit to make a reference to the Apex Court’s landmark 1997 ruling in PUCL vs Union of India which is often referred to as the telephone tapping case.
It has to be conceded most graciously that without any doubt, the Shimla High Court was absolutely right in pointing out most forcefully that, “Telephone tapping/illegal means of collecting evidence in the aforesaid context would therefore infract Article 21 of the Constitution of India, unless it is permitted under the procedure established by the law.” It must also be borne in mind that the Shimla High Court also made it a point to mention that the right to privacy has since been recognized as a fundamental right that is integral to Article 21 in the KS Puttaswamy case. It would be worthwhile to mention that keeping this in view, the Shimla High Court after taking a holistic view proceeded to dismiss the husband’s petition. Very rightly so!
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Bipin Chander Negi of Shimla High Court sets the ball in motion by first and foremost putting forth in para 1 that, “By way of the present petition, challenge has been laid to the impugned judgment dated 17.11.2022, whereby the trial Court has rejected an application under Section 65(B) of the Indian Evidence Act read with Section 14 of the Family Court Act.”
Needless to say, the Bench then states in para 2 of this notable judgment that, “Heard counsel for the parties and perused the pleadings.”
To put things in perspective, the Division Bench envisages in para 3 of this commendable judgment that, “A perusal of the application filed under Section 65(B) of the Indian Evidence Act read with Section 14 of the Family Court Act reveals that by way of the present application, the petitioner intends to place on record an alleged conversation inter se the respondent-wife with her mother.”
Most significantly and most forthrightly, the Bench encapsulates in para 4 what constitutes the cornerstone of this notable judgment postulating precisely that, “At the very outset, it would be appropriate to mention that a telephone conversation is an important facet of an individual’s private life. The right to holding a telephone conversation in the privacy of one’s home/office without interference can certainly be claimed as a “Right to Privacy.” Telephone tapping/illegal means of collecting evidence in the aforesaid context would therefore infract Article 21 of the Constitution of India, unless it is permitted under the procedure established by the law.”
While citing the most relevant and most remarkable case law, the Bench makes it a point to underscore in para 5 of this robust judgment stating that, “In this respect, it would be appropriate to refer case reported as People’s Union for Civil Liberties (PUCL) Vs. Union of India and Anr, 1997 (1) SCC 301. The relevant extract whereof have been reproduced herein below:-
“17. We have, therefore, no hesitation in holding that right to privacy is a part of the right to “life” and “personal liberty” enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy, Article 21 is attracted. The said right cannot be curtailed “except according to procedure established by law”.
18. The right to privacy by itself has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as “right to privacy”. Conversations on the telephone are often of an intimate and confidential character. Telephone-conversation is a part of modern man’s life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of a man’s private life. Right to privacy would certainly include telephone-conversation in the privacy of one’s home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.
19. Right to freedom of speech and expression is guaranteed under Article 19(1)(a) of the Constitution. This freedom means the right to express one’s convictions and opinions freely by word of mouth, writing, printing, picture, or in any other manner. When a person is talking on telephone, he is exercising his right to freedom of speech and expression. Telephone-tapping unless it comes within the grounds of restrictions under Article 19(2) would infract Article 19(1)(a) of the Constitution.””
While adding more to it, the Bench then further adds in para 6 of this pragmatic judgment observing that, “Right to Privacy has further been dealt with by the Apex Court in detail in case titled K.S. Puttaswamy & Anr. Vs. Union of India & Ors., 2017 (10) SCC 1, wherein right to privacy has been held to be an integral part of Article 21 of the Constitution of India.”
Most remarkably and most sagaciously, the Division Bench then points out in para 7 of this pertinent judgment that, “Right to Privacy has further been dealt with by the Apex Court in detail in case titled K.S. Puttaswamy & Anr. Vs. Union of India & Ors., 2017 (10) SCC 1, wherein right to privacy has been held to be an integral part of Article 21 of the Constitution of India.”
As a corollary, the Bench then further deems it fit to hold in para 8 of this progressive judgment while citing the most pertinent case law in this regard stating unambiguously that, “Right to Privacy has further been dealt with by the Apex Court in detail in case titled K.S. Puttaswamy & Anr. Vs. Union of India & Ors., 2017 (10) SCC 1, wherein right to privacy has been held to be an integral part of Article 21 of the Constitution of India.”
Finally, the Division Bench then concludes by directing in para 9 of this refreshing judgment that, “Parties to appear before the trial Court on 05.11.2024.”
In a nutshell, we thus see that the Himachal Pradesh High Court has made it crystal clear in this phenomenal judgment that using telephone conversation as evidence violates the right to privacy. We have dwelt on this most succinctly as stated herein aforesaid! There can be just no gainsaying that the Shimla High Court in this leading case has in the fitness of things after perusing the facts of the case and the material before it deemed it absolutely fit to reject a plea by the husband to place a private telephone conversation of a respondent-wife with her mother as evidence in a matrimonial case. It also merits just no reiteration that in similar such cases, all courts must definitely emulate what the Himachal Pradesh High Court has held in this noteworthy judgment! There can be just no denying or disputing it!
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