- The Supreme Court's Constitutional bench held in KS Puttuswamy v. Union of India that the right to privacy is a part of the right to live with dignity under Article 21 of the Constitution. Thus, right to privacy has now been elevated to the status of fundamental right
- The right to free trial is also an essential right contained within the scope of Article 21 of the Indian Constitution. Furthermore, Article 10 of the Universal Declaration of Human Rights, to which India is a signatory, also envisages the guarantee of right to free trial to every person.
- In the recent judgment, the Delhi High Court dealt with a conflict between the right to privacy and right to free trial. This Article deals with the guidelines laid down by the Delhi High Court and also provides an overview of other related judgments.
In recent years, the concept of right to privacy has evolved in the field of jurisprudence. The Courts in various jurisdictions have upheld the significance of the right to privacy. Several lawsuits have been filed against large corporations for violating the privacy of individuals. Privacy laws have been developed in Europe, Australia and several other countries.
However, the right to privacy has often been in conflict with the right to free trial. In some instances, the evidence collected through the violation of the fundamental right of privacy has been held to be inadmissible in the courts of law.
RIGHT TO PRIVACY IN INDIA
The viewpoint of the Indian Court with respect to the right to privacy has evolved over time. In the case of M. P. Sharma v. Satish Chandra, when the investigation officers carried out search and seizure operations in relation to the allegations of malpractices on a company, the company’s contention that the seizure of private documents was a violation of the right to privacy was rejected on the grounds that the Indian Constitution does not recognize the right to privacy. Later, this view was upheld in the subsequent case of Harak Singh v. State of U.P., where the police carried out extensive surveillance on a person charged under the offence of dacoity.
However, this view was changed in 2017. The right to privacy has been held to be a fundamental right guaranteed by the Indian Constitution. In the landmark judgment of KS Puttuswamy v. Union of India, the Constitutional bench of the Supreme Court held that right to privacy forms a part of right to live with dignity under Article 21 of the Constitution.
The protection of the right to privacy faces new challenges in today’s technologically advanced world. The Data Protection Bill which is yet to be passed by the Parliament seeks to strengthen India’s statutory framework for protecting the privacy of individuals.
RIGHT TO FAIR TRIAL IN INDIA
The right to fair trial is an essential part of the principle of natural justice. Every person is entitled to a free and fair trial and must be given an opportunity to defend himself or herself. In India, every accused is innocent until proven guilty and the denial of a free trial would be in violation of this principle and detrimental to the society at large.
The right to free trial is essential to guarantee the accused the right to a dignified life provided under Article 21 of the Constitution of India. India is also a signatory to the Universal Declaration of Human Rights and Article 10 of the Universal Declaration of Human Rights provides that every person "is entitled in full equality to a fair and public hearing by an independent and impartial tribunal". In simpler words, fair trial means a trial without bias or prejudice, before an impartial adjudicating authority in an environment of judicial calm.
Moreover, the state is obliged to provide free legal aid to the poor and marginalized sections of the society. Article 22(1) of the Indian Constitution provides that every person has the right to be represented by the legal practitioner of his or her choice. Section 304 in The Code Of Criminal Procedure, 1973 provides that the Court shall assign a pleader to the accused where it feels that the accused does not have sufficient resources to hire a pleader.
In the landmark judgment of Kishore Singh Ravinder Dev v. State, it was held that the statutory and legislative framework in India provides sufficient safeguards to the accused to provide him with a free, fair and impartial trial. In another landmark case of Sukh Das v. State of Arunachal Pradesh, it was held that the conviction of a person without providing him free legal aid would be liable to be set aside.
The right to fair trial is also envisaged under Section 243(2) of Code of Criminal Procedure which provides that the accused may apply to the Magistrate “to issue any process for compelling the attendance of any witness for the purpose of examination or cross- examination, or the production of any document or other thing” for presenting an effective defense.
Furthermore, Section 311 provides the Court the “Power to summon material witness, or examine person present”. The Court can, at any stage during the proceedings under CrPC, summon a person as a witness or examine a non-witness or even recall and re-examine a witness if the Court feels that it is essential for arriving at a fair decision. Thus, we see that this is an enabling provision with the objective of ensuring a fair trial.
Section 391 of CrPC empowers the Appellate Court to admit further evidence or to direct a lower court to admit additional evidence, provided that the Appellate Court finds the admission of additional evidence to be necessary. The Appellate Court is required to record the reasons for the admission of additional evidence or for directing the admission of the same.
RELEVANT PROVISIONS OF THE INDIAN EVIDENCE ACT
Before moving to the conflict between the right to privacy and the right to a fair trial, it is essential to have an overview of the relevant provisions of the Indian Evidence Act. Section 17 to 30 of the Act deal with the admissibility of evidence. Under Section 29 of the Indian Evidence Act, an evidence otherwise admissible in a court of law does not become inadmissible merely because the confession was made in secrecy or because the person who made the confession was not warned that such a confession may be used against him.
It is pertinent to note the view taken by the 94th Law Commission Report with respect to the admissibility of an evidence which is obtained in contravention to law. The Law Commission noted that when the Court accepts an illegally obtained evidence, it itself gets involved in an illegal activity and therefore, the admissibility of such evidence needs to be restricted.
However, the view taken by the Courts with regards to the illegally obtained evidence appears to be contrary to the views of the 94th Law Commission Report. The Supreme Court, in the case ofPooran Mal v. Director of Inspection, held that the“test of admissibility of evidence lies in its relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out”. In other words, the admissibility of an evidence depends on the relevancy of the evidence and it is immaterial if the evidence has been obtained legally or illegally. However, the admissibility of such evidence must not be prohibited by the Constitution or any other law in force at the time.
CONFLICT BETWEEN RIGHT TO PRIVACY AND RIGHT TO FREE TRIAL
In certain cases, particularly the cases of sexual assault, there arises a conflict between right to privacy and right to free trial. For instance, in the case of P Gopalkrishnan Alias Dileep v Stateof Kerala &Anr., the accused pleaded for a copy of the video of the incident of sexual assault in order to defend himself. The accused placed reliance on Section 207 of Code of Criminal Procedure which allows the accused to seek documents related to the case. The Court held that a balance needs to be maintained between the privacy of the victim and the accused's right to defend himself. Thus, the Court refused to provide a copy of the video to the accused but allowed him to examine the video in the court. The Court held that the dignity of the victim must be protected and violation of victim's privacy would be against the interest of the society at large.
In the Puttuswamy judgment, an important observation made by the Court was that the right to privacy is not absolute and must be interpreted in accordance with the larger interest of the society. Thus, in the case ofRitesh Sinha v. State of Uttar Pradesh, the accused protested against an order to submit his voice sample as evidence pleading that such an order breached his right to privacy. The Court held that the fundamental right to privacy is not absolute and this right has to be restricted in view of compelling public interest.
In the case of Sherin V. John vs. State of Kerala, it was held that in the event of any conflict between statutory rights and fundamental right, the latter would prevail over the former. However, since both right to free trial and right to privacy have been held to be essential parts of Article 21, it becomes essential to understand that which right gets preference over the other in the event of any conflict between the two.
Two other recent landmark judgments are that of Karnataka High Court and Punjab and Haryana High Court.
The Karnataka High Court in a recent judgment held that private medical records cannot be produced to prove the offense of adultery as the same would amount to violation of the fundamental right to privacy.Furthermore, this could also be detrimental to the confidential relationship that exists between the doctor and the patient.
The Punjab and Haryana High Court, in the case of Vibhor Garg v. Neha,held that the recording of a conversation between the husband and the wife, by the husband without the consent or knowledge of the wife cannot be admitted as an evidence in a divorce petition as the recording was a “clear cut infringement and downright invasion of thewife’s privacy thus a violation of Article 21 of the Constitution of India”.
THE DELHI HIGH COURT JUDGMENT
A direct conflict between the right to privacy and the right to free trial was seen in the case of Deepti Kapur vs Kunal Julka. In this case, the wife protested against the admissibility of a CD recorded by her husband of her conversation with a friend as evidence. The CD was admitted by the Family Court as an evidence and the wife could be heard talking ill about her husband in the recording. She approached the High Court of Delhi under Article 227 of the Constitution of India and pleaded against the admissibility of the CD as evidence. She pleaded that the CD was recorded without her consent and the camera was installed in her bedroom without her knowledge. As such, the evidence was recorded in violation of her fundamental right to privacy.
The husband, on the other hand, contended that the right to privacy is not an absolute right and certain reasonable restrictions can be imposed on this right. The husband further pleaded that a denial of the admissibility of the evidence would amount to the violation of his fundamental right to fair trial.
The Delhi High Court observed that “Since no fundamental right under our Constitution is absolute, in the event of conflict between two fundamental rights, as in this case, a contest between the right to privacy and the right to fair trial, both of which arise under the expansive Article 21, the right to privacy may have to yield to the right to fair trial.” The Court also placed reliance on a host of other Supreme Court judgments. Relying on the judgment of Maneka Gandhi v. Union of India, the Court held that the fundamental rights guaranteed under Article 14 and 21 of the Indian Constitution are subject to the test of reasonableness. The Court further relied on the judgment of M. P. Sharma v. Satish Chandra and Pooran Mal v. Director of Inspection and held that the evidence collected through illegal means (in this case through the violation of right to privacy) is admissible in a court of law provided it is relevant to the instant case.
From the above cases, we can conclude that the Courts have been of the view that the right to privacy is not absolute and hence needs to be restricted where larger interests of the society are concerned. The right to privacy needs to be interpreted in harmony with the right to free trial. The Courts must ensure that one right is not elevated to the extent of relegating the other. However, considering the recent trends of jurisprudential developments, it may be possible that in the near future, the Courts would give preference to the right to privacy over other rights.
There is also a need for comprehensive guidelines to bring about uniformity in dealing with situations of conflict between right to free trial and right to privacy. With the growth of technology, there is a likelihood of more such conflicts arising in the future. In light of the Delhi High Court judgment, it may also be argued that the Punjab and Haryana High Court should have admitted the recording as an evidence in the case of Vibhor Garg v. Neha. An appeal challenging the judgment is pending before the Supreme Court and hopefully the Apex Court will lay down certain concrete guidelines to deal with situations of conflict between the two essential components of Article 21.