This article is written by Chanvi, from Alliance University, Bangalore.
Table of Contents
Privacy is an essential element of the right to live a life with dignity as it is tied with freedom of a person and gives power to be selective of our thoughts, behaviour and have the right to express them without anyone’s interference. It helps to establish and maintain social boundaries and to have control of our life and choices. It protects human dignity, provisioning a benchmark upon which other rights are formed. It helps us regulate who can know us, till what extent, while protecting others from having control over us. It is a reasonable expectation of a person to enjoy his actions, thoughts, sexual orientations, personal relationships without anyone else’s interference or control.
According to Oxford dictionary, privacy means a condition in which one can be alone, without anyone’s interference. The scope of right to privacy has increased and is engrossing. As technology advances, concerns on one’s right to enjoy their personal life increases and so is the right to privacy. A human, right from his birth has full authority as well as freedom over his indualiality and thus the importance of privacy to be considered as a legal right gains attention. The United States of America was one of the initial common law system states to include the right to privacy as a fundamental human right under Fourth Amendment. The right to privacy is also enriched in Article 12 of the Universal Declaration of Human Rights (UDHR), Article 17 in the legally binding International Covenant on Civil and Political Rights (ICCPR) and Article 16 of the Convention of the Rights of the Child (CRC). The internal importance broadens the scope of right to privacy.
Exclusionary Rule and the 94th Law Commission Report
In the USA, with giving due importance and consideration to the Fourth Amendment of the constitution, a judge made rule, known as the exclusionary rule is used in case the evidence collected by the government officials violates the constitutional right of a person, that evidence cannot be used against the same. By filing a motion to suppress before the trial asking the judge to rule the evidence as inadmissible, a defendant may prevent the prosecution from using illegally obtained evidence. The exclusionary rule usually applies to suppression of physical evidence for example, a murder weapon, stolen property, or illegal drugs that the police seize in violation of a defendant’s Fourth Amendment right not to be subjected to unreasonable search and seizure. It is applied in criminal cases and not in civil cases. The rationale behind the rule to safeguard constitutional rights and it is a remedy created by the courts and not a constitutional right. The purpose is to protect the right of a person and provide remedy if the right is violated. There is only one exception, which is a good faith exception to the rule.
The 94th Indian Law commission report, discusses the scope of admissibility of illegally obtained evidence in India, the traditional approach and the need for change. It recognises the need for change in traditional approach of the fact that even if the evidence is obtained illegally a has no consequences on its admissibility in the court of law. The reports rejected the court’s view of admitting the evidence that is obtained on the cost of someone’s privacy and practical difficulties. The report disregards the approach as when such evidence is allowed against a person, the court itself indirectly involves an illegal process of justice. For recommendations of the report, the commission examined the pro’s and con’s of USA’S exclusionary rule. The arguments favour the rule include the fairness, purity and integrity of judicial process, the development of law, with changing times. The report concluded with the view that there is a need of reform and that section 166 A should be inserted in the Indian Evidence act which suggests that if any evidence is illegally obtained, the court may have the discretion to not admit it on the basis that it may bring the administration of justice into disrepute.
Right to Privacy
In India, the fundamental question of right to privacy as a basic human right has been an ongoing debate in India for over a decade. In MP Sharma v. Satish Chnadra, which related to the investigation of malpractice against a company, which involved search and seizure orders, but the company challenged this investigation, on the ground that the private documents are too being searched under this, which hinders its right to privacy and it was held that there is no concept of right to privacy under the Indian constitution.
The next case was of a 6 judges bench landmark judgement in Kharak Singh v. State of U.P., where a person was arrested under Dacoity charges and the U.P. police using the U.P. police regulation act, applied surveillance order on him, which allowed domiciliary visits as his residence and tracking his movements. The person filed a writ petition, challenging the validity of the act and that it violates his fundamental right. It was held that there is no right to privacy under the constitution.
In the PUCL v. Union of India, the former Prime Minister, Chandra Shekhar contended that the government is tapping phone calls of the politicians. CBI investigated this contention and upon that PUCL(People Union for civil liberty) filed a PIL in the Supreme court asking for clarity of Phone tapping laws and public safety. The Supreme Court held that the Right to Privacy will be covered under the right to life and personal liberty under Article 21 of the Constitution. But none of the directions given in this case were followed.
But in 2017, a bigger bench of 9 in Justice K.S Puttaswamy v. Union of India, where the national identity project, the Aadhaar project was challenged, ruled that the right to privacy is a fundamental right and that this right is protected under Articles 14, 19 and 21. This landmark judgement overruled the previous two judgements and stated that any invasion to the fundamental right must be on the basis of the law stipulating a just, fair and reasonable procedure. With this broadened scope of right to privacy, emerges the question of its applicability and boundaries on Indian Criminal and Evidence laws. The basic question that emerges is whether law should be allowed to violate the privacy of citizens to obtain evidence that may convict them of criminal activity, as their wrongfulness would not affect the admissibility of the evidence.
Admissibility of Evidence under Indian Evidence Act
India follows a common law system where judiciary can make laws through judicial decisions of the courts and this strengthens the role of courts in India. Therefore, the law making authorities adopted a rigid approach in collecting evidence to provide justice to the innocent. The evidence act helps the judges to separate what’s relevant from irrelevant facts and plays a crucial role in reaching the right path during the court proceedings. One of the main objectives of evidence act is to prevent the inaccuracy in the admission of evidence and to introduce a more correct and uniform rule of practice. Section 17 to 31 of the Act defines the admissibility of evidence. Admissibility means to be accepted, correct or valid. To prove or disprove anything in the legal world, one must base arguments or facts upon evidence, admissibility of which depends upon the approval of the court of law. An admission is a statement, [oral or documentary or contained in electronic form], which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons.
The only way any evidence can be admissible in Indian courts is relevance. Any evidence to be admissible in the court must prove an important fact, if not, it will not be permissible. In many situations, the authorities working for law and order, may collect evidence by illegal methods in a hurry to report the higher authority. There are different ways of illegally obtained evidence like phone tapping, voice recording, by eavesdropping, illegal search, violating the personal space of someone and others. The question of whether these illegally obtained evidence are admissible in the court of law to provide justice has been raised in many cases. In State of Maharashtra v. Natwarlal Damodardas Soni, in the absence of the respondent, the Anti-Corruption Bureau of the Police and custom authorities reached his residence and after search, seized gold biscuits which had foreign markings. He was charged with serious charges of smuggling. The respondent contended an appeal that the search and seizure was illegal and the evidence is not admissible in the court. It was held that even if the search was illegal, it did not affect the validity of the seizure and its admissibility as evidence in the court and the respondent was held liable.
Further, in the landmark case of Pooran Mal v. Director of Inspection, the Indian Supreme Court in the case where two Writ Petitions were filed and the main concern of the case revolved around whether there has been any illegality in the search and seizure that was held at petitioner’s place. It was observed that no Constitutional provisions suggests to not consider the illegally obtained evidence and that is why the only test of admissibility of evidence is the relevancy of the evidence. The search and seizure were not regarded as illegal.
In R.M. Malkani v. State of Maharashtra, the case revolved around a telephonic conversation between a doctor and the corner of Bombay, where the coroner was charged with bribery charges based upon the recording of telephonic conversation. This recording was used as evidence by the anti-corruption bureau and hence the question before the court was whether the evidence that invaded the privacy of the officer and illegally obtained were admissible in the court or not. It was contended that the tape recording was not under the procedure established by law and were against Article 21 and Article 20(3). The court had a different view, as the conversation was voluntarily done by the appellant without compulsion and that the protection under Article 21 was for an innocent person against wrongful interference and not for a guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. It was held that in the present case, the method used for obtaining evidence even if illegal, is not for illegal means.
In State (NCT of Delhi) v. Navjot Sandhu @ Afzal Guru, which revolved around the gruesome incident, where five armed men suddenly attacked in parliament and inflicted grave injuries to the security. During the investigation it was found that four people were behind the incident and charges were pressed against them. To the end, while discussing the admissibility of secondary electronic evidence, the Apex Court held that the question was no longer res integra. Referring to its earlier decision in R. M. Malkani v. State Of Maharashtra (1973) 1 SCC 471, the court approved the evidence, even if the evidence was illegally obtained.
This position of law changed after the Apex court judgement in the State of Punjab v. Baldev Singh, where the case revolved around the question of the admissibility of the illegally collected evidence by an investigating officer during search and seizure which was collected in violation of the provisions of Section 50 of NDPS Act. It was held that these evidence are not admissible in the court as Section 50 provides procedural rights to the accused which are statutorily mandated thus are deemed to be followed.
After the Puttaswamy judgement, and the right of privacy as part of Articles 14, 19 and 21 has given new dimension to the admissibility of illegally obtained evidence. What is rightly benchmarked by the judgment is the right to consent in relation to both physical body as well as personal data. But with the 2017 judgement, the Apex court also ruled that this right to privacy is not an absolute right and the state can impose reasonable restrictions for maintaining law and protecting state interests. The impacts of the judgements could be seen clearly in the following cases.
In 2019, the Supreme Court of India, in Ritesh Sinha v. State Of Uttar Pradesh, while dealing with the question of whether a judicial order to an accused person to submit a voice sample as evidence, invades the privacy of a person and the Hon’ble Justice Deepak Gupta held that fundamental right to privacy cannot be construed as absolute and but must bow down to compelling public interest.
In 2020, the Delhi high court in the case of Deepti Kapur v. Kunal Julka, where the issue was about a pending divorse petition in the family court. The crux of the issue was that the husband used a Compact Disc (CD) to record an audio-video of his wife talking to her friend, about the husband’s family which seems defamatory and cruel to him. The wife in her written statement in the family court contended that the conversation was private and that the evidence of recording invades her right to privacy and was illegally obtained, hence is not admissible in the court of law.
Justice Anup Jairam Bhambhani held that even though privacy is recognised as a fundamental right, it cannot make the evidence inadmissible and that not fundamental right is absolute. In the present case, there question of relevance between the right to privacy and the right to fair trial, both of which come under the ambit of Article 21, the right to privacy may have to yield to the right to fair trial,”. The honourable judge was in the view that the puttaswamy judgement does not change the admissibility of evidence. Public justice is an important pillar of Article 21 and the right to fair trial outweighed the right to privacy in that context. The test of admissibility is only a ‘threshold test’, which opens the doors of the court so that relevant evidence can be brought by a litigating party.
On 3rd April, 2021, the Chhattisgarh High court with the bench of Justice Goutam baudari had a different view as it ruled that the phone tapping violates the right to privacy under Article 21 unless allowed by the procedure established by law, as in the case two police officers were dismissed without inquiry, on the mere basis of a CD evidence of a conversation with a criminal. The evidence invades the privacy of the petitioners and it will not be admissible in the court.
The Puttaswamy judgement while exploring and explaining the scope of right to privacy on admissibility of evidence examined various international cases and judgements. The cases of the UK, USA, Canada, Europe and South Africa were analysed to understand the right to privacy in case of search and seizure. Justice Nariman in his judgement quoted that, “One of the main aspects of right to privacy is informational privacy which does not deal with person’s body but a person’s mind”. The judgment also held that the M.P Sharma case is a narrow one as it analyzes the scope of privacy from an attenuated perspective and hence overruled. Although the impact of this judgement was assumed to be revolutionary, it being a landmark case but the reality defines differently. The 2019 Supreme court judgment and the 2020 Delhi High court judgement proves it evidentiary. But in April 2021, Chhattisgarh High court judgement drove a different lane, supporting the Puttaswamy judgement in its practicality.
Indian Law regime has largely been influenced by the British jurisprudence and its effects can be seen in the applicability of various legal concepts. Indian Courts like other foreign nations too admit illegally obtained evidence and the test of ‘relevancy’ is used. However, with the recent recognition of the right to privacy as a fundamental right of the citizens, it is expected to improve this aspect of law and to shift towards the exclusionary rule of American jurisprudence in case of violation of privacy rights of citizens to obtain evidence. After the Puttaswamy judgement, and the right of privacy as part of Articles 14, 19 and 21 has given new dimension to the admissibility of illegally obtained evidence. What is rightly benchmarked by the judgment is the right to consent in relation to both physical body as well as personal data. But with the 2017 judgement, the Apex court also ruled that this right to privacy is not an absolute right and the state can impose reasonable restrictions for maintaining law and protecting state interests. But just to maintain a balance between the right to privacy and state interest, the standards of reaching the road to justice cannot be lowered. And it definitely cannot be by putting one person’s personal liberty and choice at stake. Obtaining evidence and proving it in the court of law is an important aspect of criminal law but collecting them, at cost of someone’s privacy especially when it comes to phone tapping and search, seizure is also an injustice.
- Justia, “The Admissibility of Evidence and the Exclusionary Rule”(April, 2008), <https://www.justia.com/criminal/procedure/admissibility-evidence/ >.
- Bhadra Sinha, “Evidence collected in breach of privacy does not make it inadmissible in court: Delhi HC”, The Print, (1 July, 2020 ), <https://theprint.in/judiciary/evidence-collected-in-breach-of-privacy-does-not-make-it-inadmissible-in-court-delhi-hc/452288/ >.
- Sparsh Upadhaya, “Phone Tapping Violates Article 21 Unless Permitted By Procedure Established By Law: Chhattisgarh High Court”, (3rd April, 2021), <https://www.livelaw.in/news-updates/phone-tapping-violates-article-21-unless-permitted-by-procedure-established-by-law-chhattisgarh-high-court-172049 >.
- Law Commission, “Evidence Obtained Illegally or Improperly”, (94th Report, 1983), <https://lawcommissionofindia.nic.in/51-100/Report94.pdf >.
- Legal Information Institute, “ Exclusionary Rule”, Cornell Law School, <https://www.law.cornell.edu/wex/exclusionary_rule >.
 Justia, “The Admissibility of Evidence and the Exclusionary Rule”(April, 2008), <https://www.justia.com/criminal/procedure/admissibility-evidence/ >.
 Law Commission, “Evidence Obtained Illegally or Improperly”, (94th Report, 1983), <https://lawcommissionofindia.nic.in/51-100/Report94.pdf >.
 M. P. Sharma And Others v. Satish Chandra, 1954 AIR 300, 1954 SCR 1077.
 Kharak Singh v. The State Of U. P. & Others, 1963 AIR 1295, 1964 SCR (1) 332.
 People’S Union Of Civil Liberties v. Union Of India, AIR 1997 SC 568.
 Justice K.S. Puttaswamy v. Union of India, AIR (2017) 10 SCC 1.
 State Of Maharashtra v. Natwarlal Damodardas Soni,1980 AIR 593.
 Pooran Mal v. Director of Inspection of Income Tax, (1974) 93 I.T.R. 505 (S.C.),24.
 R.M. Malkani v. State of Maharashtra, A.I.R.1973 S.C. 157, 29.
 State v. Navjot Sandhu @ Afzal Guru,  Cri.L.J. 3950, 16.
 Deepti Kapur v Kunal Julka, 30th June, 2020.
 Bhadra Sinha, “Evidence collected in breach of privacy does not make it inadmissible in court: Delhi HC”, The Print, (1 July, 2020 ), <https://theprint.in/judiciary/evidence-collected-in-breach-of-privacy-does-not-make-it-inadmissible-in-court-delhi-hc/452288/ >.
Bhadra Sinha, “Evidence collected in breach of privacy does not make it inadmissible in court: Delhi HC”, The Print, (1 July, 2020 ), <https://theprint.in/judiciary/evidence-collected-in-breach-of-privacy-does-not-make-it-inadmissible-in-court-delhi-hc/452288/ >.
 Sparsh Upadhaya, “Phone Tapping Violates Article 21 Unless Permitted By Procedure Established By Law: Chhattisgarh High Court”, (3rd April, 2021), <https://www.livelaw.in/news-updates/phone-tapping-violates-article-21-unless-permitted-by-procedure-established-by-law-chhattisgarh-high-court-172049 >.
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