Recording Video or Audio of a person is an offence against the Right to privacy, a fundamental right under Article 21 of Indian Constitution. Law does not permit any person to video or tape record another person without his or her consent using camera, mobile or any other device as this is the infringement of privacy. Supreme Court in Justice K. S. Puttaswamy (Retd.) and Anr. Vs. Union Of India And Ors., (2017) 10 SCC 1, held that “Right to Privacy” is a fundamental right under Article 21 of Indian Constitution and it prohibits video-recoding any person without consent. A legal complaint can be made against the offender. However this right is not absolute but is subject to certain exceptions.
Section 509 IPC bars the use of any video recording of a women in some circumstances as it states that Whoever, intending to insult the modesty of any woman, utters any words, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine.
Section 354D IPC also provides that any man who-
(A) Follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or
(B) Monitors the use by a woman of the internet, email or any other form of electronic communication,
commits the offence of stalking and is punishable with, on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine. However such conduct shall not amount to stalking if the man who pursued it proves that:
- It was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or
- It was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or
- In the particular circumstances such conduct was reasonable and justified.
So all these law restricts the activities of privately recording any person without his or consent.
Recently Punjab & Haryana High Court in Neha vs. State of Haryana & Ors on 1 june 2020, while deciding child custody held that an undercover conduct of husband to record private spousal conversation without knowledge of the other is an infringement of privacy and can hardly be appreciated as an evidence. Such stealthy conduct does not support his case in respect of welfare and interest being better looked after by him alone, by depriving the mother of custody of her daughter and/ or depriving the daughter of her biological/ natural needs which a mother can only provide, and granted custody to the mother.