By Samarth Sansar
“The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.”[1]
A 9- judge bench of the Supreme Court in Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors.[2] quoted in its order, unanimously holding that right to privacy is a fundamental right enshrined under Article 21 of the Constitution. The order, backed by a comprehensively long judgment, recognised privacy as a natural and inalienable right which is inseparable from the human personality. The Puttaswamy judgment set at rest the continuous debate on privacy right being an elite concept and “too amorphous” to be recognised as a fundamental right. The court clearly stated that natural rights are not created or bestowed by the state or constitution but are inherent to a human being by virtue of their existence and it cannot be denied arbitrarily. With this pronouncement, the Supreme Court overruled its previous judgments in MP Sharma[3] and Kharak Singh[4] case where it was held that ‘right to privacy is not protected by the constitution’ and affirmed Subbarao J. dissent in Kharak Singh case where he stated that ‘despite not being recognised as fundamental right, privacy constitutes to be a necessary element of personal liberty under Article 21 of the Constitution’.[5]
Aristotle, a Greek philosopher, batted for bifurcation of the public sphere (polis) and the personal sphere (oikos) of individuals’ life.[6] This early reference can be taken as the basis for restricting unwanted government intrusion in the personal domain of the individual. Privacy can be described as an individual’s right to be left alone and respecting their private space. This right draws its inspiration from the notion of individual volition and forms the keystone of all the liberties attached to mankind, as exercising any of them can be done profoundly only when person is left alone. The Hon’ble Supreme Court in the said judgment recognized privacy to be intrinsic to human dignity as it guarantees inner peace of an individual from any uncalled intrusion.
The approval of Privacy as a fundamental right is bound to have a widespread impact not only on contemporary issues but on existing laws as well. An individual can now seek remedy for breach of privacy both against the state as well as another individual. Undoubtedly, the commendation of this right is a much-awaited and welcome step for citizens but its ramifications are yet to be known. The right to privacy, like other fundamental rights, is not absolute and can be invaded based on fair, just and reasonable procedure.[7] With time, the newly recognised right will be tested on the contours of various issues, actions and legislations and the real show of strength can be understood only after the upcoming challenges.
During the course of this article, I have tried to understand the impact of privacy ruling on instances of search and seizure under the Cr.P.C. Further, a comparative analysis has been made with the USA which already provides for legislation on privacy rights and its consequences on search and seizure. This comparison is relevant given the need of having a guiding source in order to understand the applicability of privacy rights. Since USA has tested these provisions for long we might want to gain insights into it and probably implement them as well.
ANALYSIS
The Code for Criminal Procedure, 1973 (hereinafter the code), under Chapter VII, titled “Processes To Compel The Production of Things”[8] provides for the provisions of search and seizure. The Code under S. 93, 94, 95 or 97 provides for search warrants and its issuance by court when it considers necessary for the purpose of inquiry, trial or other proceedings under the code. It further lays down certain procedures that have to be followed in order to put check on unnecessary police actions such as search to be made in the presence of respectable inhabitants of the locality etc. As stated earlier the right to privacy is not absolute and can be breached by the state for larger public benefit by following the due process of law. Hence, in order to strike balance between the individual rights and public benefits any encroachment of privacy by the state must withstand the threefold test prescribed for Article 21 which are-
- Legality i.e the existence of legitimate legislation.
- Legitimate state needs.
- Proportionality i.e adoption of reasonable means to achieve the objective.[9]
In this regard, the code already safeguards the privacy rights of individuals by providing conditions for search and seizure. Before conducting search prior sanction of court in the form of a warrant has to be taken and courts generally grant such warrant after careful consideration of the facts, hence protecting the individual from unwanted intrusion and harassment. Further, to uphold the legitimacy of such search and seizure the code provides that two or more independent localities must be called to attend the search and a list of items seized is to be handed over to the person searched.
However, it would be ignorant to believe that the Code is full of proof in itself regarding privacy rights. Not only the existing safeguards are bypassed with great ease, but the code under S. 165 also provides that a police officer who has a well-grounded belief that search of a place for investigation is necessary without undue delay, after recording those grounds, preferably in writing, can conduct a search without warrant.[10] Though these provisions have been incorporated to deal with contingencies but in reality, they serve as a tool in the hands of authorities to circumvent the due process of law. On multiple occasions, investigation agencies have been found to misuse these provisions which cause undue harassment to civilians.
What is more problematic is the position of law when it comes to implementation. Indian legal system strictly adheres to the black letter of law and primacy is given to the material obtained and not on the manner in which it is obtained. Courts in India are of the view that no legislation bars admissibility of evidence on grounds of search being illegal or otherwise.[11] Under the Indian Evidence Act, 1872, which was codified during the colonial regime, only test for admissibility of evidence is the relevance of facts.[12] Interestingly, Britain whose precedent we follow, has itself provided for exclusion of illegally obtained evidence under the Police and Criminal Evidence Act, 1984.[13] Even though the system in India provides for certain checks in a matter of searches, non-adherence to the principles of search does not render the search invalid but only irregular.[14] The Supreme Court has held that exclusion of evidence obtained by illegal search would be wrong as neither the Constitution per se has any such provision nor extended construction of any portion under Part III prescribes this.[15] This clearly establishes that Indian courts are readily accepting illicit evidence obtained by bypassing the due process of law and hence grant an ‘unsaid’ authority to the investigating agencies to infringe the law. This practice of admitting feloniously obtained evidence hurts the basic principle of reliability in criminal law which states that ‘purpose of a criminal trial is to resolve the truth and hence evidence must be taken into consideration based on reliability’.[16] However, evidence extracted by illegal searches or other illegitimate means is far from being trustworthy.
INDIA- AS IT STANDS
The Delhi High Court in Dharambir Khattar v. Union of India held that articles seized in violation of the statute may be inadmissible but any other finding in the course of such illegal search can still be admissible based on the relevance of facts and circumstances.[17] In R.M. Malkani v. State of Maharashtra,[18] the court in a manner allowed admissibility of stolen evidence by police based on the proposition that no provision of any statute bars admissibility of such evidence. The Law Commission of India in its 94th report has noted that in absence of any legislation, forbidding admissibility of evidence obtained by illegal searches or other illegal means is not viable.[19] The credibility of such illicitly obtained evidence might be reduced, however, its relevance cannot be questioned.
It is important to note here that Supreme Court deviating from its precedent has held the trial to be tainted in cases of NDPS Act. In State of Punjab v. Balbir Singh[20] and Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat[21] the court upheld the acquittal of accused due to non-conformity with S.50 of the act which relates to search and evidence. It was stated that compliance with these provisions is mandatory and since consequences following are serious, any irregularity cannot be allowed. But isn’t this the case with other provisions as well? Hence it can be inferred that courts understand the gravity of privacy right and the miscarriage of justice which it may cause but lack of legislation acts as a hindrance in this regard.
It is at this stage when the recognition of right to privacy in the Puttaswamy judgment takes paramount importance and it would be interesting to decode its impact on instances of search and seizure. As discussed earlier, till now courts have been reluctant in excluding evidence obtained by illegal searches citing lack of legislation that bars exclusion of such pieces of evidence. Now that the apex court has given legitimacy to right to privacy and included it within the ambit of fundamental right under Article 21, unwarranted searches under S. 165 of the code which are found to be unreasonable as well we evidences procured by illegal searches must be struck down on the grounds of violation of fundamental right. It is crystal clear that the current regime of protection is inefficient and insufficient because there is no deterrent for investigative agencies as illegally obtained evidence continues to hold relevance in the court of law. Hence, the newly recognised right is bound to create new dimensions in this sphere of law.
USA- THE INSPIRATION
With the agreement on the right to privacy being an inalienable right there is a need to take steps for making its implementation full proof and not just written guidelines which are transgressed under the eyes of a helpless judiciary. In this regard, the US model can be the inspiration we might lookup for. In M.P. Sharma case it was held that the right to privacy cannot be inferred from the Indian Constitution as it does not provide for any provision like the Fourth Amendment to the US Constitution.[22] With the recent development on privacy rights, we have moved a step towards the US regime and hence we must also inspect the related developments in the US and other similar provisions to ensure a positive and smooth transition.
Fourth Amendment to the US Constitution, 1792 states that “People have a right to be secure in their persons, houses, papers, and effects against unreasonable searches and seizure”.[23] This amendment puts a check on the unfettered power of police to conduct search and seizure and prevents its citizens’ ‘reasonable expectation of privacy’. For a search to be conducted, a warrant backed by an oath is issued upon satisfying reasonable cause. Till this point the protection under US law is similar to that of the Indian system, however, the US regime is far ahead of the Indian system when it comes to safeguarding the interests of its citizens in a situation of circumventing the law by agencies. Unlike India, courts in the US did not permit a lack of legislation to allow admissibility of illegally obtained pieces of evidence or the evils of unwarranted searches.
Despite the Fourth Amendment is in place, Police could search people unreasonably and extract evidences by violating their ‘reasonable expectation’ of privacy such as stopping a car in traffic without any traffic misconduct. It was felt by the courts that if such illegitimate searches and moreover the evidence obtained from them are allowed to be admitted, the legitimacy of the Fourth Amendment will be reduced to mere words.[24] Hence, in 1914, in Weeks v. U.S. the court propounded the ‘exclusionary rule’ ‘which states that pieces of evidence obtained by an illegal search or by other illicit means are inadmissible in a court of law.[25] The reasoning behind this rule is that allowing such evidence is a violation of the right to privacy granted by the Fourth Amendment. Emanating from the exclusionary rule, the US courts went on to lay down the principle of ‘fruit of a poisonous tree’[26] which means any secondary evidence obtained in the course of an illegal search or otherwise will also be inadmissible. Simply putting, this doctrine means that if the source of evidence is corrupt, any product following it will be treated the same. In the landmark judgment in Mapp v. Ohio, where police seized some seditious books from Mapp’s residence in an illegal search, the court held that none of the evidence can be permitted as the search was made in violation of his right to privacy.[27] The application of these principles comes with certain exceptions such as search made in good faith, non- connection with illegal search, discovery of evidence was anyway going to happen, etc, in order to ensure that evidence procured legally are not washed away.
It is clear from the discussion that US courts have woven a web around the Fourth amendment aided by the said two principles which act as a deterrent for the investigative agencies from indulging in illegal searches in order to extract evidence. During the course of time, a robust mechanism to prevent the privacy of individuals against illegitimate searches has been achieved by crossing judicial obstacles.
CONCLUSION
In my opinion, with the Puttaswamy judgment authenticating privacy as fundamental right, the time has come that Indian courts do away with the practice of admitting evidence extracted by illegal searches. The practice of unwarranted searches and admissibility of illegal evidence which till now prospered under the garb of ‘lack of legislation’ violated the basics of criminal law such as reliability principle and it became evident that the existing safeguards failed massively to protect the interest of individuals. In the Indian context, where protection of fundamental rights is given paramount importance by courts, it is now expected from courts to strictly deal with instances of an illegal search. This disincentive for the investigative agencies will automatically lead to a reduction in such stances. Further, not only the courts but the individual whose privacy is intruded can also seek remedy and this will also act as a deterrent.
In this regard, the Indian courts might seek inspiration from the U.S judiciary and act towards creating a full proof mechanism where privacy rights of individuals are protected from the excesses of state and its agents. With a formal recognition of the right to privacy similar to the Fourth Amendment in U.S. we must thrive to include provisions similar to the ‘exclusionary rule’ and ‘fruit of the poisonous tree’. Here, it is also necessary on the part of the legislature, which till now has remained blindfold, to enact or amend the existing legislation which backs the judiciary in creating a sound, healthy and intrusion free personal sphere for individuals.
[1] K.S. Puttaswamy and Anr. v. Union of India and Ors, (2017) 10 SCC 1.
[2] Id.
[3] M.P. Sharma v. Satish Chandra, AIR 1954 SC 300.
[4] Kharak Singh v. State of U.P., AIR 1963 SC 1295.
[5] Id.
[6] DeCew, Judith, “Privacy“, The Stanford Encyclopaedia of Philosophy (Spring 2018 Edition), Edward N. Zalta (Ed.).
[7] Supra, note 1.
[8] Chapter VII, Code of Criminal Procedure, 1973.
[9] Supra, note 6.
[10] Supra, note 7.
[11] Shyni Varghese v. State (Govt. of NCT of Delhi), (2008) 147 DLT 691 (Del).
[12] Talha Abdul Rahman, ‘Fruits of the Poisoned Tree: Should illegally obtained evidence be admissible?’ (2011) PL April S-38.
[13] S. 78(1), Police and Criminal Evidence Act, 1984.
[14] Bai Radha v. State of Gujarat, AIR 1970 SC 1396.
[15] Pooran Mal v. Director of Inspection (Investigation), (1974) 1 SCC 345.
[16] Supra, note 11.
[17] Dharambir Khattar v. Union of India and anr, 2013 Cri LJ 2100.
[18] 1973 SCR (2) 41.
[19] Law Commission of India, 94th report on ‘Evidence obtained Illegally or Improperly’ (1983) available on – http://lawcommissionofindia.nic.in/51-100/report94.pdf.
[20] (1994) 3 SCC 299.
[21] (1995) 3 SCC 610.
[22] Supra, note 2.
[23] U.S. Const. amend. IV.
[24] Silverthorne Lamber Co. v. U.S., 251 U.S. 385 (1920).
[25] Weeks v. U.S, 232 U.S. 383 (1914).
[26] Nardone v. U.S, 308 U.S. 338 (1939).
[27] Mapp v. Ohio, 367 U.S. 643 (1961).
[The author is a second-year student of West Bengal National University of Juridical Sciences.]
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