Secret Call Recordings as Evidence in Litigation and Arbitration

A party to a dispute often holds a secretly made recording of a telephone call and wants to place it before a court or an arbitral tribunal. This article examines when Indian law permits that. It traces the doctrine from S. Pratap Singh and R.M. Malkani to Vibhor Garg v. Neha, in which the Supreme Court received a spouse’s covert recording of his own conversations, and it explains the certificate requirement under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023. The position reduces to three propositions. Relevance admits the recording, the statutory certificate proves it, and reliability decides what it is worth. The article compares the English, American and Singapore positions and sets out the steps a person/legal team should take before he/she/it relies on a recording.

A dispute rarely arrives with a clean documentary trail. Parties fall out over what was said on a phone call, and one of them, anticipating trouble, has recorded it without telling the other. When that recording surfaces in a suit or an arbitration, two objections follow almost as a reflex. The recording was made in secret, so it violates privacy. It was obtained improperly, so the court should not look at it. Indian law answers both objections more plainly. The court asks whether the recording is relevant, whether it is proved, and what it is worth. It does not ask, at the stage of admissibility, whether the recording ought to have been made. This piece sets out the statutory framework and the case law that answers the relevant position, identifies the point at which such evidence actually fails in practice, and considers the discipline a legal team needs when it intends to rely on a recording.

Right to Privacy and its development

The nine-Judge Bench in K.S. Puttaswamy v. Union of India held that privacy is a fundamental right located in Article 21 and in the freedoms guaranteed by Part III of the Constitution.[1] The judgment did not settle a uniform rule on the reach of the right, and the opinions differed on whether it could be enforced only against the State or also against private persons. A Constitution Bench answered that question in Kaushal Kishor v. State of Uttar Pradesh, holding by majority that a fundamental right under Article 19 or Article 21 can be enforced even against persons other than the State.[2] The Supreme Court then confronted the recording problem directly in Vibhor Garg v. Neha. The matter arose from a matrimonial dispute, but the reasoning travels well beyond it. The right to privacy must be weighed against the right to a fair trial, which also flows from Article 21, and with it a litigant’s right to place relevant evidence before the court. On that footing the Court received a spouse’s secret recording of his own conversations.[3]

The legality of the act of recording is narrower than the rhetoric suggests. No Indian statute makes it a civil wrong or an offence for a person to record a conversation to which they are a party. The interception provisions of the Indian Telegraph Act, 1885, namely Section 5(2) read with Rule 419A of the Indian Telegraph Rules of 1951, regulate State interception of communications in transit and say nothing about a participant recording their own call.[4] India therefore follows a one-party consent position. The limit is real, though. A litigant cannot tap or record conversations between the opposing party and third persons to which the litigant is a stranger. The Andhra Pradesh High Court in Rayala M. Bhuvaneswari v. Nagaphanender Rayala held a husband’s tapping of his wife’s calls with others to be an illegal invasion of her privacy and declined to receive the recordings.[5]

Relevance as the Test

Admissibility in India turns on relevance, not on the propriety of the method by which evidence was obtained. The Supreme Court in S. Pratap Singh v. State of Punjab acted on a recorded conversation though it had been unlawfully procured, because it was relevant to help resolve the dispute.[6] In Yusufalli Esmail Nagree v. State of Maharashtra the Court held that if a statement is relevant, an accurate recording of it is equally relevant, and treated the contemporaneous recording as part of the res gestae under Section 8 of the Evidence Act.[7] The governing formulation comes from R.M. Malkani v. State of Maharashtra.[8] The conversation must be relevant to the matters in issue. The voice must be identified. The accuracy of the recording must be established by excluding the possibility of erasure or tampering. Ram Singh v. Col. Ram Singh shows the test doing real work, for there the Court refused to act on a recording whose voices were not satisfactorily identified and whose integrity could not be vouched for.[9] The consistent position, then, is that illegality in procurement does not by itself exclude, but the court weighs such material with care.

It is worth noticing where these authorities arose, because none of them was a commercial suit. Malkani and Yusufalli were criminal appeals. Pratap Singh was a service dispute, in which a civil surgeon relied on recordings to show that disciplinary action against him had been taken in bad faith. Ram Singh was an election matter, and Vibhor Garg arose from a matrimonial case. The doctrine travels because the statute does. The Bharatiya Sakshya Adhiniyam, like the Evidence Act before it, applies to all judicial proceedings in or before any court and draws no distinction between civil and criminal cases.[10] A commercial suit therefore inherits the same rules of relevance and proof, and the cases decided in other subject matter apply with equal force.

[1]Section 1(2), Bharatiya Sakshya Adhiniyam, 2023, which applies the Adhiniyam to all judicial proceedings in or before any court, including courts-martial, but not to affidavits or to proceedings before an arbitrator. Section 1 of the Indian Evidence Act, 1872 was to the same effect. The exclusion of arbitral proceedings is the statutory footing of the flexibility discussed below.

Proof, the Certificate and Weight

If privacy is where these disputes begin, proof is where they are decided. Section 63 of the Bharatiya Sakshya Adhiniyam, 2023 governs the admissibility of electronic records and extends to records produced by a “computer or any communication device”, closing the doubt that lingered under Section 65B of the Evidence Act about smartphone recordings.[10] The same provision carries forward the certificate requirement. Anvar P.V. v. P.K. Basheer held that secondary electronic evidence is inadmissible without the statutory certificate,[11] and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal confirmed that the certificate is mandatory wherever the original device is not itself produced.[12] In practice this is the ground on which call recordings actually fail in Indian courtrooms. The privacy objection makes the headlines, but the recording that is excluded is usually the one tendered as a file transferred between phones, without the device, without a certificate, and without anyone who can speak to how it was made.

Admissibility is also not the end of the inquiry, because weight is a separate question. A recording that clears Section 63 still has to persuade. The Malkani safeguards operate at this stage as measures of reliability, and a tribunal will look for corroboration in the documents and the conduct of the parties before it rests a finding on a secretly made recording. The English decision in Singh v. Singh, which admitted covert recordings between business partners as evidence of an oral ownership agreement, states the reason for caution well. The party who knows the tape is running can steer the conversation, and the unguarded party may be led into statements that read differently out of context.[13] An Indian court or tribunal weighing a recording made for the purpose of manufacturing admissions can be expected to discount it accordingly.

Arbitration and the Comparative Position

In arbitration the position is more flexible. Section 19(1) of the Arbitration and Conciliation Act, 1996 provides that the tribunal is not bound by the Code of Civil Procedure, 1908 or the Indian Evidence Act, 1872 (now to be read as the Bharatiya Sakshya Adhiniyam, 2023), leaving the parties and the tribunal to set the line on what will be received.[14] In international references, the institutional rules govern, supplemented in practice by the IBA Rules on the Taking of Evidence in International Arbitration, 2020, which define a document as “a writing, communication, picture, drawing, program or data of any kind, whether recorded or maintained on paper or by electronic, audio, visual or any other means”.[15] Call recordings fall comfortably within that language. In AMERRA Capital Management LLC v. United Mexican States, the tribunal rejected an objection that text messages and audio recordings were too private to be produced, holding that no special protection shields such material once it is within a party’s possession, custody or control and responsive to a request.[16]

The comparative picture confirms that India sits in the mainstream. English law treats covert recordings as admissible hearsay, subject to notice under the Civil Evidence Act 1995 and Part 33 of the Civil Procedure Rules, and the court holds a residual discretion under CPR 32.1 to exclude even relevant material after balancing the search for truth against the vice of improper procurement.[17] Participant recording sits outside the criminal interception regime, now contained in the Investigatory Powers Act 2016, because a person recording their own call does not intercept it in the course of transmission.[18] The United States applies the one-party consent rule of the federal Wiretap Act, though a minority of states, California among them, require the consent of every party, so the same recording may be lawful in one state and criminal in another.[19] Singapore admits relevant evidence regardless of how it was obtained, subject to the court’s discretion, and recognises no standalone tort of invasion of privacy.[20] The point of distinction is worth stating precisely. The residual discretion to exclude improperly obtained material belongs to the English and Singapore courts. Indian law has not clearly established an equivalent. Here relevance admits, and the impropriety of procurement goes to caution and weight. Whether constitutional privacy could ever ground exclusion in a civil matter after Puttaswamy remains an open question that no bench has authoritatively answered.

Preparation to Rely on a Recording

For a person/team that intends to rely on a recording, the work begins long before the hearing. The original device should be preserved, not merely the audio file exported from it, because Arjun Panditrao makes the certificate dispensable only where the device itself is produced. A forensic image and a hash value taken at collection answer the tampering limb of Malkani before it is raised. The transcript should be prepared early, with speakers attributed, and witnesses who can identify the voices should be considered while memories are fresh. The certificate under Section 63 should be drawn up by the person who can actually speak about the device and the process, rather than reconstructed on the eve of trial. Each of these steps is unglamorous, and each is where the objection will land.

An individual recording in a personal capacity falls outside the Digital Personal Data Protection Act, 2023,[21] but a company that records calls is processing personal data and takes on obligations of notice and consent. That subject has its own weight, and is separately available here.

Conclusion

Indian law imposes no general bar on a participant recording their own conversation, and the one-party consent framework, as reflected in Vibhor Garg v. Neha, permits this without the knowledge or consent of the other party, save where a third party outside the proceedings is drawn into the recording. On admissibility, the governing consideration is relevance, not the propriety of the method by which the recording was obtained, with the three-fold test laid down in R.M. Malkani. Relevance admits the recording. The certificate under Section 63 proves it. Reliability and corroboration decide what it is worth. Privacy, which dominates the argument, controls none of the three stages in a civil matter as the law presently stands, though the question left open after Puttaswamy may yet return. What the case law endorses is not ingenuity in obtaining evidence but discipline in preserving and proving it. The recording that survives scrutiny is the one whose device was kept, whose certificate was contemporaneous, and whose account is confirmed by the documents. That has been true of every form of evidence the courts have received, and the smartphone has not changed it.

[1]K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (nine-Judge Bench).

[2]Kaushal Kishor v. State of Uttar Pradesh, (2023) 4 SCC 1 (Constitution Bench, by majority).

[3]Vibhor Garg v. Neha, 2025 SCC OnLine SC 1421, 2025 INSC 829.

[4]Section 5(2), Indian Telegraph Act, 1885 read with Rule 419A, Indian Telegraph Rules, 1951.

[5]Rayala M. Bhuvaneswari v. Nagaphanender Rayala, AIR 2008 AP 98.

[6]S. Pratap Singh v. State of Punjab, AIR 1964 SC 72.

[7]Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 SC 147.

[8]R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471.

[9]Ram Singh v. Col. Ram Singh, 1985 Supp SCC 611.

[10]Section 63, Bharatiya Sakshya Adhiniyam, 2023. The corresponding provision of the Indian Evidence Act, 1872 was Section 65B, which referred only to a computer.

[11]Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473.

[12]Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1.

[13]Singh v. Singh and others, [2016] EWHC 1432 (Ch).

[14]Section 19(1), Arbitration and Conciliation Act, 1996.

[15]IBA Rules on the Taking of Evidence in International Arbitration, 2020, Definitions ("Document").

[16]Amerra Capital Management LLC and others v. United Mexican States, ICSID Case No. UNCT/23/1, Procedural Order No. 5 (11 June 2024).

[17]Civil Evidence Act 1995 and Part 33, Civil Procedure Rules. The notice requirement appears in CPR 33.2, and the exclusionary discretion in CPR 32.1.

[18]Section 3, Investigatory Powers Act 2016, which replaced the interception offence formerly contained in the Regulation of Investigatory Powers Act 2000.

[19]18 U.S.C. § 2511(2)(d).

[20]ANB v. ANC, [2015] SGCA 43.

[21]Section 3(c)(ii), Digital Personal Data Protection Act, 2023.

The law is stated as at 24 July 2026. This article is for general information and academic discussion. It does not constitute legal advice, and no reader should act on it without independent advice on their own facts.