Fundamental Right To Privacy Not Absolute And Must Bow Down To Compelling Public Interest: SC

We all had either read or are fully well acquainted with the famous judgment titled Justice KS Puttaswamy (Retd) and Anr vs Union of India and others delivered on August 24, 2017 about two years back in which a 9-Judge Constitution Bench of Supreme Court including the then Chief Justice of India (CJI) JS Khehar had unanimously held that right to privacy is a fundamental right. The other Judges in this landmark and extremely laudable judgment praised all over were Justice J Chelameswar, Justice Sharad A Bobde, Justice RK Agrawal, Justice Rohinton Fali Nariman, Justice Abhay Manohar Sapre, Justice Dr DY Chandrachud, Justice Sanjay Kishan Kaul and Justice S Abdul Nazeer. It was applauded not just in India but all over the world for upholding that the right to privacy is fundamental right. Very rightly so!

However, it must be mentioned here that in a latest and noteworthy judgment titled Ritesh Sinha Vs State of Uttar Pradesh & Anr in Criminal Appeal No. 2003 of 2012 with Criminal Appeal No. 1318 of 2013, Criminal Appeal No. 1187 of 2019 [Arising out of SLP (Criminal) No. 9671 of 2017], Criminal Appeal No. 1188 of 2019 [Arising out of SLP (Criminal) No. 2225 of 2018] and Criminal Appeal No. 1190 of 2019 [Arising out of SLP (Criminal) No. 3272 of 2018], a three-Judge Bench of Supreme Court comprising of CJI Ranjan Gogoi along with Justice Deepak Gupta and Justice Sanjeev Khanna have on August 2, 2019 held unambiguously and unanimously that the fundamental right to privacy cannot be construed as absolute and must bow down to compelling public interest thus reaffirming what was laid down earlier also in Justice KS Puttaswamy (Retd) case as also in other cases. This it held while holding that a Judicial Magistrate can order a person to give a sample of his voice for the purpose of investigation of a crime. Very rightly so!

To start with, this notable and laudable judgment authored by CJI Ranjan Gogoi for himself, Justice Deepak Gupta and Justice Sanjeev Khanna sets the ball rolling in para 1 by observing that, 'Leave granted in Special Leave Petition (Criminal) Nos. 9671 of 2017, 1048 of 2018, 2225 of 2018 and 3272 of 2018.'

While dwelling on the facts of Criminal Appeal No. 2003 of 2012, Para 2 then illustrates stating that, 'On 7th December, 2009 the In-charge of the Electronics Cell of Sadar Bazar Police Station located in the district of Saharanpur of the State of Uttar Pradesh lodged a First Information Report ('FIR' for short) alleging that one Dhoom Singh in association with the appellant – Ritesh Sinha, was engaged in collection of monies from different people on the promise of jobs in the Police. Dhoom Singh was arrested and one mobile phone was seized from him. The Investigating Authority wanted to verify whether the recorded conversation in the mobile phone was between Dhoom Singh and the appellant – Ritesh Sinha. They, therefore, needed the voice sample of the appellant and accordingly filed an application before the learned jurisdictional Chief Judicial Magistrate ('CJM' for short) praying for summoning the appellant to the Court for recording his voice sample.'

What we then see unfolding in para 3 is this: 'The learned CJM, Saharanpur by order dated 8th January, 2010 issued summons to the appellant to appear before the Investigating Officer and to give his voice sample. This order of the learned CJM was challenged before the High Court of Allahabad under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'). The High Court having negative the challenge made by the appellant by its order dated 9th July, 2010, the present appeal has been filed.' Para 4 then also further states that, 'The appeal was heard and disposed of by a split verdict of a two Judge Bench of this Court requiring the present reference.'

Be it noted, it is then envisaged in para 5 that, 'Two principal questions arose for determination of the appeal which have been set out in the order of Justice Ranjana Prakash Desai dated 7th December, 2012 in the following terms.

'(1) Whether Article 20(3) of the Constitution of India, which protects a person accused of an offence from being compelled to be a witness against himself, extends to protecting such an accused from being compelled to give his voice sample during the course of investigation into an offence?

(2) Assuming that there is no violation of Article 20(3) of the Constitution of India, whether in the absence of any provision in the Code, can a Magistrate authorize the investigating agency to record the voice sample of the person accused of an offence?''

As it turned out, para 6 then reveals that, 'While the first question was answered in the negative by both the learned Judges (Justice Ranjana Prakash Desai and Justice Aftab Alam) following the ratio of the law laid down in State of Bombay vs Kathi Kalu Oghad, AIR 1961 SC 1808, difference of opinion has occurred insofar as second question is concerned.'

On the one hand, para 7 points out that, 'Justice Desai took the view that voice sample can be included in the phrase 'such other tests' appearing in Explanation (a) to Section 53 Cr.P.C. by applying the doctrine of ejusdem generis and, therefore, the Magistrate would have an implied power under Section 53 Cr.P.C. to pass an order permitting taking of voice sample in the aid of criminal investigation.'

On the contrary, para 8 then observes that, 'On the other hand, Justice Aftab Alam took the view that compulsion on an accused to give his/her voice sample must be authorized on the basis of a law passed by the Legislature instead of a process of judicial interpretation. In this regard, the learned judge (Aftab Alam, J.) also took note of the amendments in Sections 53, 53A and 311-A of the Cr.P.C. by Act No. 25 of 2005 introduced with effect from 23rd June, 2006 which amendments did not bring, within the fold of the aforesaid provisions of the Cr.P.C., any power in the trial Court to compel an accused to give sample of his/her voice for the purpose of investigation of a criminal charge.'

To put things in perspective, it is then explained in para 11 that, 'Medical examination of an accused for the purposes of effective investigation of a criminal charge has received a wider meaning by the amendment to the Explanation to Section 53 Cr.P.C. made by Act No. 25 of 2005 with effect from 23rd June, 2006. Similarly, Section 53A has been inserted by the same Amending Act (No. 25 of 2005) to provide for examination of a person accused of rape. Likewise, by insertion of Section 311-A by the same Amending Act (No. 25 of 2005) a Magistrate has been empowered to order any person, including an accused person, to give specimen signatures or handwriting for the purposes of any investigation or proceeding under the Cr.P.C.'

To be sure, it is then clarified in para 12 that, 'None of the said amendments specifically authorize or empower a Magistrate to direct an accused person or any other person to give his/her voice sample for the purposes of an inquiry or investigation under the Code. 'Omission' of the Legislature to specifically so provide has led the learned Judge (Justice Aftab Alam) on the two judge Bench to doubt as to whether legislative wisdom was in favour of a specific exclusion or omission so as to make a judicial exercise through a process of interpretation impermissible.'

More importantly, it is then envisaged in para 13 that, 'The Law Commission of India in its 87th report dated 29th August, 1980, also had an occasion to deal with the question presently confronting the Court. The Law Commission examined the matter (almost four decades earlier) in the context of the working of the provisions of the Identification of Prisoners Act, 1920. The view taken was that a suitable legislation which could be in the form of an amendment to Section 5 of the Identification of Prisoners Act, 1920 would be appropriate so as to specifically empower a Judicial Magistrate to compel an accused person to give a sample of his voice. The following extract from the 87th Report of the Law Commission dated 29th August, 1980 would be relevant.

'A voice print is a visual recording of voice. It mainly depends on the position of 'formats'. These are concentrates of sound energy at a given frequency. It is stated that their position is the 'frequency domain' is unique to each speaker. Voice prints resemble finger prints, in that each person has a distinctive voice with characteristic features dictated by vocal cavities and articulates.

Voice-print Identification seems to have a number of practical uses. In England, in November 1967, at the Winchester Magistrate's Court, a man was accused of making malicious telephone calls. Voice-print Identification (spectrograph) was used and the accused was found guilty.' [Paragraphs 5, 27, 87th Report of the Law Commission of India]

'Often it becomes desirable to have an accused person speak for the purposes of giving to the police an opportunity to hear his voice and try to identify it as that of the criminal offender. A comparison may even be desired between the voice of an accused person and the recorded voice of a criminal which has been obtained by, say, telephone tapping. To facilitate proof of the crime the police may like that the accused should be compelled to speak, and even that his voice as recorded may be converted into a 'voice print'.

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However, if the accused refuses to furnish such voice, there is no legal sanction for compelling him to do so, and the use of force for that purpose would be illegal.'

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'The scope of Section 5 needs to be expanded in another aspect. The general power of investigation given to the police under the Criminal Procedure Code may not imply the power to require the accused to furnish a specimen of his voice. Cases in which the voice of the accused was obtained for comparison with the voice of the criminal offender are known but the question whether the accused can be compelled to do so does not seem to have been debated so far in India.

There is no specific statutory provision in India which expressly gives power to a police officer or a court to require an accused person to furnish a specimen of his voice.' [Paragraph 5, 26, 87th Report of the Law Commission of India].'

It cannot be missed out that para 14 then holds that, 'Section 5 of the Identification of Prisoners Act, 1920 coincidentally empowers the Magistrate to order/direct any person to allow his measurements or photographs to be taken for the purposes of any investigation or proceeding. It may be significant to note that the amendments in the Cr.P.C., noticed above, could very well have been a sequel to the recommendation of the Law Commission in its Report dated 29th August, 1980 though the said recommendation was in slightly narrower terms i.e. in the context of Section 5 of the Identification of Prisoners Act, 1920. In this regard, it may also be usefully noticed that though this Court in State of Uttar Pradesh vs Ram Babu Misra AIR 1980 SC 791 after holding that a Judicial Magistrate has no power to direct ac accused to give his specimen writing for the purposes of investigation had suggested to Parliament that a suitable legislation be made on the analogy of Section 5 of the Identification of Prisoners Act, 1920 sp as to invest a Magistrate with the power to issue directions to any person including an accused person to give specimen signatures and writings. The consequential amendment, instead, came by way of insertion of Section 311-A in the Cr.P.C. by the Code of Criminal Procedure (Amendment) Act, 2005 (Act No. 25 of 2005) with effect from 23rd June, 2006.'

As things stand, para 15 then points out that, 'The legislative response in remaining silent or acting at a 'slow' pace can always be explained by legislative concerns and considerations of care and caution. It is in the aforesaid context and in the admitted absence of any clear statutory provision that the question arising has to be answered which is primarily one of the extent to which by a process of judicial interpretation a clear gap in the statute should be filled up pending a formal legislative exercise. It is the aforesaid question that we shall now turn to.'

Needless to say, it is then made clear in para 16 that, ' 'Procedure is the handmaid, not the mistress, of justice and cannot be permitted to thwart the fact-finding course in litigation'. [AIR 1975 SC 349 (Vatal Nagaraj vs R. Dayanand Sagar)]. We would like to proceed in the matter keeping the above view of this Court in the backdrop.'

More to the point, it is then observed in para 18 that, 'In the present case, the view that the law on the point should emanate from the Legislature and not from the Court, as expressed in the judgment of this Court from which the reference has emanated is founded on two main reasons, viz., (i) the compulsion to give voice sample does in some way involve an invasion of the rights of the individual and to bring it within the ambit of the existing law would require more than reasonable bending and stretching of the principles of interpretation and (ii) if the legislature even while making amendments in the Criminal Procedure Code (Act No. 25 of 2005), is oblivious and despite express reminders chooses not to include voice sample either in the newly introduced explanation to Section 53 or in Sections 53A and 311A of Cr.P.C., then it may even be contended that in the larger scheme of things the legislature is able to see something which perhaps the Court is missing.'

It cannot be lost on us that it is then observed in para 19 that, 'Insofar as the first reservation is concerned, the same would stand dispelled by one of the earlier pronouncements of this Court on the subject in State of Bombay vs. Kathi Kalu Oghad (supra), relevant extracts of which judgment has already been set out. The following views in the concurring opinion of Justice K.C. Das Gupta in State of Bombay vs Kathi Kalu Oghad (supra) would further strengthen the view of this Court to the contrary.

'(32) ........It has to be noticed that Article 20(3) of our Constitution does not say that an accused person shall not be compelled to be a witness. It says that such a person shall not be compelled to be a witness against himself. The question that arises therefore is: Is an accused person furnishing evidence against himself, when he gives his specimen handwriting, or impressions of his fingers, palm or foot? The answer to this must, in our opinion, be in the negative.

(33) ........the evidence of specimen handwriting or the impressions of the accused person's fingers, palm or foot, will incriminate him, only if on comparison of these with certain other handwritings or certain other impressions, identity between the two sets is established. By themselves, these impressions or the handwritings do not incriminate the accused person, or even tend to do so. That is why it must be held that by giving these impressions or specimen handwriting, the accused person does not furnish evidence against himself. So, when an accused person is compelled to give a specimen handwriting or impressions of his finger, palm or foot, it may be said that he has been compelled to be a witness; it cannot however be said that he has been compelled to be a witness against himself.'

[Emphasis is ours]'

What's more, it is then pointed out in para 20 that, 'So far as the second basis for the view taken is concerned, we have already expressed an opinion that what may appear to be legislative inaction to fill in the gaps in the Statute could be on account of justified legislative concern and exercise of care and caution. However, when a yawning gap in the Statute, in the considered view of the Court, calls for temporary patchwork of filling up to make the Statute effective and workable and to sub-serve societal interests a process of judicial interpretation would become inevitable.'

Truth be told, it is then rightly advised in para 21 that, 'The exercise of jurisdiction by Constitutional Courts must be guided by contemporaneous realities/existing realities on the ground. Judicial power should not be allowed to be entrapped within inflexible parameters or guided by rigid principles. True, the judicial function is not to legislate but in a situation where the call of justice and that too of a large number who are not parties to the lis before the Court, demands expression of an opinion on a silent aspect of the Statute, such void must be filled up not only on the principle of ejusdem generis but on the principle of imminent necessity with a call to the Legislature to act promptly in the matter.'

Furthermore, it would be of immense significance to note here that it is then observed in para 24 that, 'Would a judicial order compelling a person to give a sample of his voice violate the fundamental right to privacy under Article 20(3) of the Constitution, is the next question. The issue is interesting and debatable but not having been argued before us it will suffice to note that in view of the opinion rendered by this Court in Modern Dental College and Research Centre and others vs. State of Madhya Pradesh and others (2016) 7 SCC 353, Gobind vs. State of Madhya Pradesh and another (1975) 2 SCC 148 and the Nine Judge's Bench of this Court in K.S. Puttaswamy and another vs. Union of India and others (2017) 10 SCC 1 the fundamental right to privacy cannot be construed as absolute and but must bow down to compelling public interest. We refrain from any further discussion and consider it appropriate not to record any further observation on an issue not specifically raised before us.'

Finally and most importantly, it is then held in the last para 25 that, 'In the light of the above discussions, we unhesitatingly take the view that until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India. We order accordingly and consequently dispose the appeals in terms of the above.'

In essence, this latest, landmark and extremely laudable judgment very rightly takes the logical stand that though right to privacy is a fundamental right but it cannot be construed as absolute and must bow down to compelling public interest. Right to privacy cannot trample compelling public interest and has to step aside whenever it is in conflict with it! Very rightly so!