(Shiva Pande is a 4th year student at University School of Law and Legal Studies, GGSIPU, New Delhi)
Featured painting- ‘Private Conversation’ by Felix Vallotton
INTRODUCTION
The nine-judge bench judgement of K.S. Puttaswamy v. Union of India has added a completely new dimension to the growing fundamental rights jurisprudence of India by recognising that privacy is a fundamental right arising out of Article 21 of the Constitution. Recognising privacy as a fundamental right has the potential to impact the current understanding of various facets of both substantive and procedural criminal law. The ripples emanating from Puttaswamy can spur a reconsideration of how we comprehend various investigative processes such as searches, seizures and other processes which may impede upon the privacy of an individual. One such aspect which is open for consideration is whether an individual retains a privacy interest in their voice samples and can the Court compel the same for the purposes of a criminal investigation.
The Apex Court in Ritesh Sinha v. State of U.P. (hereinafter Ritesh Sinha II) held that compelling voice samples from an accused, in the absence of a specific provision providing for the same, does not violate the right against self-incrimination under Article 20(3) of the Constitution. The Court was faced with two main questions for consideration – (i) whether any provision of the Code of Criminal Procedure empowers a Judicial Magistrate to compel voice samples and (ii) whether compelling voice samples violates the right against self-incrimination of accused. On the first question, it held that the power to compel voice samples from an accused has to be conceded to a Judicial Magistrate despite the absence of specific provision engrafted for this purpose within the Code of Criminal Procedure. It then proceeded to ‘fill in the gaps’ of the Code by relying upon Article 142 of the Constitution and granted the power to compel voice samples to Judicial Magistrates. On the second question, it simply applied the law which has been settled by State of Bombay v. Kathu Kalu Oghad which holds that compelling physical evidence which is not based on the personal knowledge of the accused and is to be used only for the purposes of comparison does not violate Article 20(3).
An interesting aspect of this judgement was that the Court did not explicitly answer whether the right to privacy would be violated in compelling an accused to provide his voice samples. Taking note of the possibility of privacy being infringed due to voice samples being compelled, the Apex Court observed that this question is debatable but did not delve into it due to the fact that it was not canvassed before it as an argument. However, before concluding the judgement it did observe that the right to privacy is not absolute and must bow down to compelling public interest. This article aims to examine the very question mooted by the Apex Court in Ritesh Sinha II i.e. whether compelling voice samples is unconstitutional as it violates the right to privacy of an accused. It shall aim to theorise the avenues of reasoning the Court may employ in concluding whether compelling voice samples from an accused violates the right to privacy or not.
SUPREME COURT’S UNDERSTANDING OF PRIVACY
The contours of how the right to privacy is to be construed were laid down by a nine-judge bench in the landmark judgement of K.S. Puttaswamy v. Union of India. The Apex Court held that privacy is a constitutionally protected right arising out of the right to life and personal liberty under Article 21.
Determining whether compelling voice samples from an accused violates his or her right to privacy requires ascertaining three main questions. First, whether an individual possesses a right to privacy in a public space. Second, whether such an individual’s expectation of privacy or privacy interest extends to visible physical characteristics that are often willingly exposed to others such as his or her voice, face, or handwriting. Third, subject to the above two aspects being fulfilled, whether compelling voice samples amounts to a reasonable restriction on the right to privacy.
With regard to the first question and arguing from the viewpoint that the right to privacy exists in a public domain, throughout the Puttaswamy judgement, privacy is characterized by the Court as attached to the individual and is centred around protecting the individual’s autonomy. This protection stems to all vital aspects to the individual’s life such as sexual orientation, family life, marriage, and procreation. Characterizing privacy as being attached to the individual becomes crucial in situations where privacy is sought to be exercised in the public sphere. By attaching the right to privacy to the individual, the Apex Court recognises that the right to privacy is not lost when the individual is in a public domain. This was explicitly held by the Court by affirming that the expectation of privacy varies from the private to the public arena but it is not surrendered merely because the individual is in a public place. Addressing the first question is quite straightforward and does not seem to have a well-substantiated opposing viewpoint to it as taking a contrarian position on this question can result in a significant weakening of the right to privacy especially keeping in mind the emerging concerns of mass surveillance such as usage of drones and street cameras equipped with automated facial recognition software.
Dealing with the second question, the majority opinion in K.S. Puttaswamy v. Union of India (Aadhaar Case) relied upon the American test of ‘reasonable expectation of privacy’ for determining whether an individual has a privacy interest or the right to privacy in a particular factual scenario. However, for the purposes of this article, I shall be applying the understanding of the test used by the majority in the Aadhaar case, despite the doctrinal inconsistencies pointed out by constitutional scholars.The test requires that the individual alleging infringement of his or her right to privacy must show that he seeks to preserve something as private and that society considers his expectation of privacy as reasonable. The majority opinion in Puttaswamy adverted to nine different types of privacy amongst which bodily privacy as well as behavioural privacy were defined.
Bodily privacy is reflected in the privacy of the physical body of an individual. Aside from the enunciation of bodily privacy as a constituent element of the right to privacy, a more robust declaration to this effect is in the Aadhaar case which held that biometric information such as fingerprints, retina scans and even photographs are physical characteristics of a person. Further, it held that a person has full bodily autonomy and any intrusion in the bodily autonomy of a person can be accepted as a breach of privacy. The definition provided for behavioural privacy becomes crucial for situations in which individuals seek to exercise their right to privacy in a public domain. Behavioural privacy, as defined in Puttaswamy, recognises the privacy interest of a person while conducting publicly visible activities. It recognises that even when access is granted to others, individuals are still entitled to control the extent of access and preserve themselves from unwanted intrusion. From these two elements of privacy, we can infer that a legitimate expectation of privacy or a privacy interest can be harboured by individuals in their often publicly exposed physical characteristics including their voice.
However, it seems more likely that the Court may entirely refute the existence of a legitimate expectation of privacy in the context of compelled voice samples for the purposes of comparison. In the Aadhaar case, the Apex Court held that when a privacy claim seeks inclusion under Article 21 of the Constitution, the Court should apply the reasonable expectation of privacy test and should keep in mind the context in which the privacy claim is set up, whether it relates to private or family life or confidential relationships, whether it is serious or trivial, whether disclosure will result in serious injury and most prominently in case of voice samples, whether disclosure relates to information already disclosed publicly.
There are two primary reasons that may lead the Court to conclude that there is no privacy violation in compelling voice samples from an accused. Firstly, the majority in the five-judge bench judgment in the Aadhaar case held that a person may claim a legitimate privacy interest but the question of breach of privacy rights needs to be examined in the subject context under which the information was obtained. In other words, examining a breach of privacy rights needs to keep in mind the context and purpose in which said breach occurred. Also, recall that the degree of privacy interest retained by an individual depends upon whether he or she is in a public or private domain. Every individual uses his voice to communicate with others and therefore, willingly exposes it to the public at large. As a result of this willing exposure, an individual weakens his privacy interest retained in the physical characteristic of his or her voice. Secondly, international precedents on the issue of compelled voice samples hold the position that there is no legitimate privacy interest retained in the voice samples of an individual based on the above reasoning. In the companion cases of U.S. v. Dionisio and U.S. v. Mara, the United States Supreme Court considered whether compelled voice samples violate the privacy rights retained by a person in his voice. Reiterating its dictum in Katz v. U.S. which held that the Fourth Amendment provides no protection for something that a person knowingly exposes to the public even within the confines of his own home or office, the Court held that the physical characteristic of a person’s voice is constantly exposed to the public and therefore, an individual cannot have a reasonable expectation of privacy in it. In other words, the constant exposure of the individual’s voice weakens or attenuates the expectation of privacy retained by him in it. The applicability of these judgements and their reasoning is lent even more credence because the majority opinion in the Aadhaar case relied upon them for holding that individuals have a weak privacy interest in their demographic information when considered for simple identity authentication.
Summarising this question, the Court may reason that though there exists a legitimate expectation of privacy in an individual’s voice but it may still conclude that compelling voice samples for the purposes of comparison, pursuant to a criminal investigation, does not violate privacy as there is no expectation of privacy found in the said context.
Moving to the third question, assuming that the Court does not outright reject a privacy interest due to context, any restriction in order to be reasonable must satisfy the threefold standard laid down in Puttaswamy. In order for an invasion of privacy to be justified, it must meet the threefold requirement of (i) legality i.e. the act invading privacy must be authorised under a Parliamentary enacted law; (ii) need, which refers to a legitimate state interest in invading privacy and (iii) proportionality ensuring a rational nexus between the object of the law and the means adopted to achieve them. It is argued that compelling voice samples from an accused, in its current form, does not satisfy the threefold test.
In Ritesh Sinha II, the Court held that there was no statutory basis in the Identification of Prisoners Act as well as the Code of Criminal Procedure which can be interpreted to empower Judicial Magistrates to compel voice samples. The Court then granted Judicial Magistrates the power to compel voice samples by virtue of Article 142 of the Constitution. However, before doing so, it observed that compelling voice samples may violate the right to privacy but nonetheless proceeded to grant this power.
Reliance upon Article 142 leads to the requirement of legality not fulfilled due to two reasons. Firstly, in Prem Chand Garg v. Excise Commissioner, it was held that even though the powers granted to the Court under Article 142 are wide, they still cannot be exercised in a manner inconsistent with fundamental rights. It is argued that once the Apex Court found that compelled voice samples could prima facie violate privacy, it could not have relied on Article 142 without analysing and concluding that privacy is not violated by compelling voice samples. Secondly, the aspect of legality in the test requires privacy to be restricted under the aegis of a statute, rule or regulation enacted by Parliament and deriving its power from it. As per the decision in Naresh Shridhar Mirajkar v. State of Maharashtra, judicial decisions are not considered law within the meaning of Article 21 of the Constitution. Therefore, the Apex Court, by judicially legislating, cannot impose a potential restriction (recognised by the Court in Ritesh Sinha II itself) on the right to privacy, in the absence of a Parliamentary enacted law.
The requirements of legitimate state interest and proportionality are also not fulfilled. Legitimate state interest requires that the nature and content of the law restricting privacy must be reasonable and not manifestly arbitrary under the meaning of Article 14. The judgement simply concedes power to compel voice samples by relying on Article 142 and fails to clarify basic procedural details such as (i) the kind of judicial magistrate empowered to order voice samples; (ii) who can take the voice samples i.e. police officer or Forensic Science Lab expert; (iii) can the power be exercised during trial or only during investigation; (iv) whether the person be arrested for compelling voice samples or can he simply be in custody; (v) will they be taken in presence of the magistrate; (vi) the period for which the samples can be retained and the purpose for which they may be used.
The first five of these questions emerge from observing Section 311A of the CrPc and Section 4 and Section 5 of the Identification of Prisoners Act, all of which provide for compelling fingerprints and handwriting samples from an accused. These Sections clearly spell out the kind of Magistrate empowered to compel fingerprint samples, where and in whose presence the samples may be taken, samples can be compelled during both investigation and proceeding under the CrPc and that the person from whom samples are sought must have been arrested at some point during the investigation or proceeding. The third question becomes relevant and a necessary procedural detail to be spelled out because State of U.P. v. Ram Babu Mishra has held that the power to compel specimen signature or handwriting under Section 73 of the Indian Evidence Act can only be exercised during the stage of trial and Ritesh Sinha II simply states that the power to compel voice samples must be conceded for the purposes of investigation. The sixth question emerges from the requirements of purpose limitation and informational privacy as recognised initially by the Group of Experts Committee on Data Privacy and subsequently affirmed by the Apex Court in Puttaswamy.
Aside from the inherent absence of the requirement of legality, by not answering these questions, the power granted to compel voice samples suffers from the vice of arbitrariness as well as disproportionality due to the absence of any procedure provided by the Court.
CONCLUSION
From the above discussion, it is quite evident that the current legal procedure of compelling voice samples from an accused, in the absence of a law made by Parliament, violates the right to privacy. However, it is also quite evident that all of the arguments which hold that compelled voice samples violate the right to privacy can be dispelled by the Parliament enacting an amendment which specifically empowers an identified Judicial Magistrate to pass an order compelling a person, accused or otherwise, to provide voice samples provided that such person has been arrested in connection to any investigation or proceeding under the Code. As stated earlier, the arguments against allowing compelled voice samples would be dispelled with ease because it is quite likely that the Court will find a weakened privacy interest in the voice samples of a person provided that such samples are taken solely for comparison purposes.
Recently, a National Level Criminal Law Reform Committee was constituted to suggest improvements to the Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act which provides a perfect opportunity for the Committee to recommend incorporating a provision for compelling voice samples which would be in consonance with the right to privacy.
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