Why the SC has made secretly recorded conversations between spouses in court
The apex court's ruling changes the contours of spousal or marital privilege in Indian law, which protects private conversations between a husband and a wife during their marriage, and even after the marriage has ended.
Spousal privilege means that a person cannot be compelled to testify against their spouse in a criminal case. It is rooted in the idea that a degree of protection has to be provided to private conversations between a husband and a wife during their marriage.
In India, Section 122 of the Evidence Act codifies this. It states: 'No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative-in-interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.'
Spousal communication is allowed as evidence, according to the law, when the other spouse consents or when one spouse has narrated the events to a third party who testifies in a court. Otherwise, even if a spouse accidentally spills the beans, it is struck off the record as inadmissible evidence that the court cannot rely upon.
Spousal privilege does not apply directly in divorce cases where one spouse makes allegations against the other spouse and testifies in a court of law. These allegations are supplemented by evidence such as letters, photographs or testimonies of other people. However, with technological advances, text messages, video and voice recordings, emails are often presented as evidence.
Many High Courts have refrained from accepting secret recordings as evidence due to two main reasons:
The SC's ruling relied on its 1973 judgment in a case, which pertained to a telephonic conversation recorded by the police to prove a bribery charge against a doctor. At the time, the apex court overlooked how the evidence was obtained, given that the case involved corruption by a public servant and the phone tap was by the state. The SC has now effectively extended this reasoning to matrimonial cases.
The court has said that if evidence is relevant, independently verifiable, and falls within statutory exceptions, it can be admitted even if collected in secret. It has also been said that secret recordings are a violation of fundamental rights, but the right to privacy has to be balanced with the right to a fair trial.
The SC has interpreted Section 122 to mean that while an individual cannot be compelled to testify against their spouse, it is not impermissible to allow evidence to that effect, especially in matrimonial disputes. The ruling says a telephone that secretly records conversations is 'no different from an eavesdropper.' Simply put, the court here is equating digital evidence to a third party who is a witness to a privileged conversation and is testifying.
The SC recognised the right to privacy as a fundamental right in 2017. The current ruling is an example of how the court operationalises this right to privacy. The court, in its interpretation of Section 122, said that the provision was drafted into 'sanctity of the marriage' and not to protect privacy within marriage.
This is perhaps true for a law of the Victorian era — the Evidence Act came into force in 1872. But privacy as a is now a fundamental right, which protects the inner sphere of the individual from interference from both state and non-state actors. Any infringement of the right to privacy has to be backed by a valid law.
The SC also disagreed with the argument that making secret recordings admissible in court would lead to surveillance within marriage. It said, 'If the marriage has reached a stage where spouses are actively snooping on each other, that is in itself a symptom of a broken relationship and denotes a lack of trust between them.'
There is also a concern that the ruling could affect women's right to a fair trial, as there is a huge gender gap in smartphone ownership and access to technology in India. There is a 39% divide in ownership of smartphones by women compared to men in the country, according to the Mobile Gender Gap Report 2025. When evidence can be collected at the click of a button, the party with easier access to such technology naturally gets the upper hand.
Try Our AI Features
Explore what Daily8 AI can do for you:
Comments
No comments yet...
Related Articles
Mint
17 minutes ago
- Mint
Srinath Raghavan unpacks Indira Gandhi's controversial legacy during the Emergency years
I am a child of the Indira Gandhi era. Through my formative years, she was Prime Minister. Until 1977, it never occurred to me that men could aspire to this position. Consider what an amazing reversal this is in a patriarchal, misogynistic society—that a little girl thought that only women could lead her country. Of course, this was always with the chorus of Indian male voices saying derisively, 'That woman (this or that) …" Even back then, I knew that tone was reserved for women—women drivers, women managers, women entrepreneurs and, of course, women Prime Ministers. No matter, as that little girl, I still wanted to be 'that woman." This book is not about 'that woman." The title, Indira Gandhi and the Years that Transformed India, is misleading. What it is, is a history of India from 1966-84. Also read: Let women reclaim the right to rage The prologue sets the stage, moving between Indira Gandhi's biography and a potted history of the first one-and-a-half decades after independence. In the first chapter, Srinath Raghavan traces the simultaneous decline of the Congress party's dominance and Gandhi's attempt to consolidate her position. It accounts for the economic crises of the mid-1960s and narrates the backstage machinations within the Congress, when Gandhi proved to be not such a 'gungi gudiya" (or 'dumb doll," as the socialist leader, Ram Manohar Lohia, called her) after all. The fractured mandate of 1967, the split in the Congress party and the 1972 election move the story forward. The detailed reconstruction of all of the attendant intrigue and controversy is quite remarkable. The outstanding chapter in the book—no surprise, given that Raghavan is a military historian—is the one on the 1971 war. The chapter weaves together the emerging story from East Pakistan, the international context and Gandhi's domestic challenges. If you had not read about this critical year in Indian history, these pages would be the place to start. It segues from the end of the war to the growing power of the Prime Minister and the way the argument began to build for the important constitutional amendment that was passed in 1977—the 42nd Amendment—and remains contentious. This Amendment added the words 'Socialist" and 'Secular" to the Preamble; added a part on Fundamental Duties of citizens; strengthened the Concurrent List at the expense of the State List; limited judicial review of laws; extended the duration of President's Rule to one year and that of the Lok Sabha to six years. Some of this was rolled back in subsequent amendments. Raghavan pays a great deal of attention to economic policy in this period, including bank nationalisation and the constitutional debates on property rights. It is interesting that the only mention of India's first nuclear tests in Pokharan in 1974 is this: '…the prime minister even burnished her Caesarist credentials by testing a nuclear device to rapturous applause." Given the way in which Raghavan reconstructs policy debates and decision-making, it would have been interesting to read more but perhaps, he chose to leave this out because others, such as Itty Abraham, George Perkovich, Kanti Bajpai and Bharat Karnad, have written extensively on this. The next chapter is devoted to Jayaprakash Narayan's movement that culminated in the Janata Party experiment. What came to be known as the JP movement was a mobilisation of student protests with the support of some opposition parties. They gained enough momentum to give the government pause and this became the pretext for the imposition of Emergency. Raghavan reserves his most colourful descriptions for this period—'The polar night of the emergency" and 'The dark and gnarled stretches that led to this decision"—almost as if we might miss the point that these were bad times. To use Indian newspaper headline language, there is virtually no one that Raghavan does not 'slam" in the Emergency chapter—from Indira Gandhi to Nani Palkhivala ('Such are the vagaries of the liberal conscience that Palkhivala not only agreed to appear for Indira Gandhi…") to Justices Y.V. Chandrachud and P.N. Bhagwati. The chapter on the Emergency recounts in parallel the programmes that the government promoted vigorously, the manoeuvres of an imprisoned and underground but coalescing opposition and, also, what came to be called the 'excesses" of Sanjay Gandhi's Youth Congress. Raghavan writes about the one-and-a-half years of the Janata Party government under Morarji Desai and Charan Singh just as unsparingly, making note of every intransigence, foible and egotistical assertion. The final chapter takes us from Gandhi's return to power in January 1980 to her assassination in October 1984. This is a period in which India was witness to growing unrest in three regions—Assam, over citizenship; Punjab, over the demand for a separate Sikh state; and Kashmir, where the push-pull of Centre-State relations was fomenting the conditions for the militancy that would come. Describing the world in which Gandhi came of age politically, the author writes, '…a wilfully cultivated aura of ruthlessness—as distinct from a highly developed instinct for power—was apparently her shield in an arena of politics shot through with gendered mores: one in which a woman prime minister could casually be called a 'gungi gudiya'... or a 'chokri' (derisive term for girl)." For all this gender sensitivity, in a nod to other writings on these years, he mentions five male authors but misses Nayantara Sahgal and Sagarika Ghose's work. When one later reads sexist phrases (most likely inadvertently used) like '…she did succeed in molesting the constitution" and 'More pregnant was her claim" (about the Congress mandate in 1971), it is hard to overlook them. That Raghavan is not a fan of Gandhi is made abundantly clear in the book, not just because the calculus of her political actions leads us to a critical appraisal but because his use of adjectives and adjectival clauses makes sure we know this. Writing about her first assumption of Prime Ministerial office, we are told about 'her shallow puddle of experience" and then the word 'Caesarist" appears over and over, sometimes as description and sometimes as explanation of other things. I would have enjoyed coming to a conclusion on my own based on the very detailed narrative he constructs, but then these were my formative years and perhaps unfamiliar readers need the signposts. Raghavan writes in his Prologue, '…this book was written in a time when a new political configuration was crystallizing in Indian democracy. It would be idle to suggest that my political views on this recent turn have not shaded this historical account… I have sought to write a history that 'supplies the antidote to every generation's illusion that its own problems are uniquely oppressive.'" He is also writing at a time when chunks of Indian history are literally being erased from our textbooks. This is a good book for those trying to fill in the blanks about a period to which everyone now refers but ever-fewer people remember first-hand. What we hear on official channels is a version where successive Indira Gandhi governments accomplished nothing but the oppression of today's rulers whose role in resisting the Emergency is lionised. Was Gandhi good or bad, the best or the worst? In our fact-free, nuance-free times, Raghavan's book makes an important contribution by writing in detail about the decision-making process on a number of policies—from the first stirrings of an idea or a crisis to the various points of view as they emerged and crystallised to the implementation and consequences of that idea. This lets us see that nothing about government is easy, even for 'Caesarist" Prime Ministers! On economic and foreign policy, and even on the question of constitutional amendment, despite his own disapproval, Raghavan lets us see someone who asks for opinions and considers them thoughtfully even though she ultimately follows her instinct. In fact, one of the strengths of the book is the dispassionate reconstruction of policy processes and outcomes. On bank nationalisation, for example, Raghavan says that while later writing has judged this as a politically expedient decision by Indira Gandhi, he also writes about its actual impact in giving the state access to more funds and taking the reach of the banking sector into rural India. Overall, I am not sure how accessible this book is for the general reader. Within the chapters, the narrative sometimes jumps around, almost requiring you to know this era to follow. The language is sometimes difficult and sometimes chatty. Reading about these years always feels personal to me. To encounter the years of one's life in another person's words is a strange experience because you want to jump in and say, 'I don't remember it like that" or 'I also remember this". Despite this personal connection, this book did not draw me in. What I missed was more quotations from Gandhi's own letters and notes. In a book titled 'Indira Gandhi," I missed her voice. The writing has a personal quality because the author has such a strong opinion of the protagonist-who-isn't and yet, it is impersonal (not dispassionate) as a textbook would be. This may be to your reading taste or not. That diminishes neither the solid historical research nor the astounding detail in which historical events are described in the book. Swarna Rajagopalan is a political scientist and peace educator. Also read: Writer Gideon Haigh on the foremost rivalry in cricket today
The Hindu
17 minutes ago
- The Hindu
Looking beyond the U.S. for college
Indian students have always viewed the U.S. as a top study destination. However, the ongoing visa challenges, growing concerns around job opportunities after graduation, rising costs, and shifting immigration policies are causing anxiety among applicants and parents. With this looming fear of 'what next', let's explore destinations beyond the U.S. Canada Pros: Appointment of a new Foreign Minister, Anita Anand, and three other Indian-origin leaders: Maninder Sidhu as Minister of International Trade, and Ruby Sahota and Randeep Sarai as Secretaries of State Recent improvements in India-Canada diplomatic relations Postgraduate work permit for up to three years and an easier pathway to permanent residence than most other countries. There is even an express entry route. Diversity, inclusion and a supportive environment for Indian students in the campuses Cons Increased financial documentation requirements and tighter visa rules. Since January 2024, there has been a significant increase in the required proof of funds amount to be shown for the Canadian study permit. Increase in the number of visa application rejections due to policy fluctuations Rising living costs and competition in large cities Germany Pros Approximately 2,300 English-taught programmes Public universities are tuition-free. Up to 18 months post study visa to look for a job. Geographically at the centre of Europe and well connected A strong economy and job market Cons Studienkolleg requirement: Indian high school qualifications (Class 12) are not directly eligible for most public Bachelor's programmes. Students must complete a one-year Studienkolleg foundation programme and pass the Feststellungsprüfung (FSP) before they can begin undergraduate studies. Some Studienkollegs accept B1 for entry, but this is rare and usually for private institutions. Public Studienkollegs often require B2 German. At the Master's level, no German language proficiency is required for admission. While courses are taught in English, German has to be learnt for daily life and work opportunities. Coursework is known to be demanding. Netherlands Pros Many English programmes available in top universities Acceptance rates are higher as compared to other countries. One year post-study work visa High quality of life Cons Coursework is demanding High living costs, especially in Amsterdam For citizenship A2 level of Dutch is required. It's beneficial to demonstrate an even higher level Ireland Pros Only English-speaking country in the European Union (post Brexit) Several major international companies have their European or EMEA (Europe, Middle East, and Africa) headquarters in Dublin Supportive multicultural environment in Dublin Cons Cost of living in Dublin Weather can be rainy, dark, and very cold in the winter Food can also be tough for Indians though more options keep opening up. New Zealand Pros Safe, student-friendly, and supportive environment English-speaking environment makes adjustment easier Pathway programme options allow you to study your dream subject even if you don't initially meet the entry criteria. Cons Far from India and a bit disconnected from the rest of the world. Can be slightly 'boring', as the cities are smaller and quieter. Dubai Pros Globally recognised Indian as well as international universities have campuses here Easy work permit availability for internships/part-time roles Safe, multicultural environment with a strong Indian presence Cons Weather can be harsh, especially in summer Restrictions around free speech and modest culture expectations Some institutions lack strong global rankings or focus on research Japan Pros High-quality education, strong global ranking, and a growing Indian student population Universities offering scholarships, English-taught programmes and favourable part-time work policies Recent growth in English-medium liberal arts programmes Safe, low-crime country Unique cultural immersion alongside technological advancement Cons Major language barrier; even in a city like Tokyo, getting by without Japanese can be an issue. Cultural norms may feel restrictive. Cold winters and high-pressure academic environment High living costs, especially in Tokyo With inputs from Kritika Malhotra The writer is Founder and CEO, Inomi Learning, a Gurugram-based career and college guidance firm. info@
New Indian Express
17 minutes ago
- New Indian Express
'Dalits refused booking of wedding halls in Tiruppur's Sivanmalai foothills'
TIRUPPUR: Wedding hall owners at Sivanmalai in Kangeyam of Tiruppur district are suspected of caste discrimination against Scheduled Castes. Officials from the district administration said an investigation into the matter is underway. It has been alleged Dalit people are finding it difficult to book wedding halls located in the foothills of Sivanmalai to hold auspicious events, including weddings. P Kalimuthu, district secretary of the Aathi Thamizhar Munnetra Kazhagam, said, "People from not only Tiruppur district but also from nearby districts come to the Murugan Temple at Sivanmalai. There is a belief among the public that if auspicious events, including marriages, are held at Sivanmalai, they will get the grace of Lord Murugan. But SC people are refused booking of private halls in the foothills of Sivanmalai." "Out of the 20 wedding halls two belong to the trusts of two specific castes. All other halls are private halls. The norms for halls state that all castes should be allowed. But these halls do not allow people from Scheduled Castes to hold auspicious events. The situation is similar in Kangeyam city. Hall owners fear people from other castes will not book their halls if they allow people from scheduled castes,," he added. "Scheduled Caste people are facing great difficulty in booking halls for auspicious days. Sometimes, they hold weddings in their village temples and host receptions and other events by setting up tents in their homes. Only a few socially minded people provide halls to SC people. The state government should conduct an investigation and take appropriate action in this regard," Kalimuthu further said.
