Privacy’s Shyness from Self-Incrimination: Post-Puttaswamy

By Ritika Sharma, University Institute of Legal Studies, Panjab University, and Vaishnavi Sharma, NLU Mumbai

Abstract

The purpose of this follow-up piece is to demonstrate how self-incrimination contentions tend to shy away from privacy concerns as courts continue citing ancient cases to answer newer and fresher privacy concerns. The use of discretionary power by the State in making evidence admissible, violate both, the Right to Life and the Right against Self- Incrimination. The provisions of the Indian Evidence Act allow this admissibility default, leading to breach of privacy rights.

Introduction

The increasingly narrowing scope of self-incrimination and its apparent shyness from the right to privacy is becoming particularly inescapable. In this digital age, we have, through acquiescence, jailed ourselves in a Panopticon-modelled society, our actions automatically chilled with the blaring, intrusive instruments of the State thrown in our faces, and our backs.

There are two major concerns – firstly, the importance of privacy in this digital not being duly considered with the Puttaswamy precedent having been reduced to merely a citation; and secondly, the troubling approach of courts to view self-incrimination questions as already “settled”, and not looking at its dynamic changing nature especially in light of new technological advancements.

Self-incrimination and the Privacy Principle

Self-incrimination is inextricably linked to and located in the areas of an individual’s privacy, where the constitutional recognition of this right signifies one’s privacy, personal liberty, and dignity. While dealing with questions of self-incrimination, courts have been either ignoring privacy violation concerns or judicially carving a space to aid the executive in justifying their actions, even if they blatantly violate privacy, for example, voice sampling.[1]

Both the Puttaswamy judgments – K.S. Puttaswamy (Privacy-9J.) v. Union of India[2] and K.S. Puttaswamy (Aadhaar-5J.) v. Union of India[3]– were instrumental in changing our approach and definition of the right to privacy. While recognising the right to privacy as a fundamental right under Article 21 of the Constitution, the courts have further enunciated the essential concerns that the court must answer while answering questions related to privacy.

As the courts never fail to remind us, privacy is not an absolute right (the primary reason they sometimes cite Puttaswamy in self-incrimination these days). However, the point was never to place privacy as an absolute right but to rather see it as a governing principle; Puttaswamy recognised explicitly only what the courts had implicitly done in several previous cases.

To refer to some recent examples, in Vinod Mittal v. State of H.P.,[4] the court citing Puttaswamy said that the right to privacy must bow down to the “compelling public interest”.[5] What this public interest is, the Court yet again did not enumerate. The important question here is to what extent can the invocation of compelling public interest justify the apparent dilution of a fundamental right like privacy, albeit recently added to the cache?

Similarly, the court in Gujjula Sreenu v. The C.I.D.,[6] while reiterating previous cases, upheld the constitutionality of search and seizure warrants in the light of contentions of violation of the right against self-incrimination and the right to privacy. While the court alluded to Puttaswamy, it essentially declared that since Puttaswamy didn’t observe lawful search and seizure cases to be violative of privacy, the petitioner cannot claim privacy violation.

In a recent case of Ragini Dwivedi v. State of Karnataka,[7] it was contended that investigative officers requiring opening phones via providing passwords are violative of the right against self-incrimination and the right to privacy.[8] After stating that there needs to be a balance struck between personal liberty and the investigational right of the police, the court, however, ended up denying claims of privacy and self-incrimination, and that reluctance to voluntarily disclose the phone passwords would lead to adverse against the accused on the premise that it is the duty of the accused to cooperate with the investigating officer.

Keeping aside their apparent randomness, what is noticeable is that while these recent post-Puttaswamy cases refer to self-incrimination and right to privacy, they hardly explain or justify the apparent encroachment on these rights, apart from declaring that privacy as a right is not absolute.

The Admissibility Default

A similar issue arises with illegally obtained evidence, which is largely admissible in India. It is important to understand that when a certain measure crosses the threshold from being merely illegally obtained evidence to unconstitutionally obtained evidence; it is considered inadmissible as the exclusionary principle applies only in the case of unconstitutionally obtained evidence and not in the former.[9] Protection being accorded to illegally obtained material by making them admissible would then lead to mass surveillance and the government rampantly eavesdropping on its citizens.[10] The effect of Puttaswamy, hence, is not only that the judiciary will have to map these surveillance measures (searches and seizures, illegal phone call tapping, section 91 of the CrPC)[11] based on the current understanding of the right to privacy being a fundamental right, but also to require the government to submit to and justify its actions under the three-part test/ proportionality test prescribed in the Puttaswamyjudgement. And, considering that the lawmakers did not anticipate the sort of digital age we live in right now, it becomes all the more important for the judiciary to understand online and digital privacy.

Admissibility of evidence – illegal or legal – is immaterial when considering the Indian Evidence Act, in which Section 27 states that confessions made in police custody that lead to discoveries whether compelled or not are admissible. In light of the Puttaswamy judgement, as has been noted,[12] the fact of compulsion being used in the initial stages would bring about questions of constitutionality, and the admissibility of that evidence. This is especially important in cases where confessions that otherwise would have been inadmissible under the ambit of Section 25, is rendered admissible, as was the case in Ragini Dwivedi v. State of Karnataka.

In short, this default admissibility rule gives the State unchecked discretionary power and unquestioned authority to go to any lengths towards trying to prove an accused to be guilty. This includes blatant violation of privacy. It must be noted that there was sufficient scope for the judiciary and the Parliament to reconsider and re-examine the same considering Puttaswamy, however, the position remains stagnant and unchanged.[13]

The issue, hence, is that these recent judgments are permitting an incursion into the informational privacy of a person. Apart from the fact that many courts merely refuse to engage seriously with the question of privacy and deign to quote Puttaswamyonly for citation purposes to hold that the right to privacy, though a fundamental right, is not absolute. And since this determination is at the time of the trial, this ex-post determination is what is problematic, since the investigational agencies and the State gamble on this narrow margin on it not being struck by Section 25 and is permitted by Section 27. The point is simply that first, the person has already been compelled, and his right against self-incrimination and privacy has been breached; and second, that this evidence simply becomes inadmissible, and the State investigative functionaries go scot-free. The fact that the accused was compelled, in reality, is of no importance then, which squarely defeats the purpose of the right against self-incrimination.

Personal Devices and Strong Privacy Interest

Recently, the Karnataka High Court in Virendra Khanna v. State of Karnataka,[14] issued a comprehensive guideline for the carrying out search and preservation of electronic devices, for cases, like of Ragini, where the court was, inter alia, seized with the question of whether being directed to open phone passwords attracts self-incrimination and privacy questions. The court reiterated the position that providing phone passwords was not a “testimonial act” and hence cannot attract the right against self-incrimination, which further allows the court to draw adverse inferences, as was the case in Ragini. However, as has been pointed out, the position stood wrong in law.[15] While this is a welcome step towards providing guidelines to the investigating authorities and courts, considering the test laid down in Puttaswamy, it does very little to restrict blatantly encroaches upon the individual’s privacy, and only adds to the state’s surveillance power against an individual and encroachment upon their privacy.

The contents of one’s phone are intimate – just like a personal diary, where one records the innermost thoughts and feelings of their soul, locked with a key and shoved beneath the darkest drawers only to be shown light when the one feels like indulging and engaging with their thoughts. Phones, like diaries, are not usually passed around unlocked for everyone to see, where if a glance at the lit screen becomes a gaze, it is considered an intrusion these days. The simple idea is that any individual has a veritable interest in guarding the contents of the phone. Not wanting to unlock the phone is not because they do not wish for the government to find the incriminating content, but majorly for the collateral cost of their privacy as it would give access to everything, their emails, their conversations, their interests, their notes, their call log history and much more. It must also be noted that here it is not just the accused, but also others who are in contact with the accused whose privacy is at risk, even without their knowledge. With this digital revolution, our means and language of conversing have severely changed – privacy simply doesn’t mean what it meant twenty, ten, or even five years ago.

Here, the privacy interest is strong. And any breach of it is must be answered with proper care and consideration, even if privacy concerns are not contended before the court.

The issue of the obligation of providing open access to one’s phone is far more crucial than self-incrimination. It is the emphatic reinforcement of the prevailing idea of State-citizen imbalance of power, well outside of the criminal law system. Firstly, the issue is not merely of access being given to personal devices, but rather how readily it is given, and how little consideration the courts seem to expend on privacy concerns. Secondly, in absence of a clear procedure, the investigating officers have direct access to all the contents on the phone. A clear guideline must be issued for the investigating officer to have sufficient reasons to warrant access to the phone and thereafter, limited access to the device specifically sought to decrease any unnecessary wandering and consequential harm. Overarching, wide powers can also be located under the Telegraph Act, 1885, the Information Technology Act, 2000,[16] and the Information Technology Rules 2021,[17] which are only a few examples of the State’s power to intercept and watch over its citizens without them knowing about it.[18]

Conclusion

On the interplay of the right against self-incrimination and the right to privacy, there have been several instances where the Puttaswamy privacy test – (i) legitimacy, (ii) suitability, (iv) necessity, (v) balancing,[19] has gone largely unheeded with the courts crafting arguments based on precedents. As has been noted, these questions will have to be settled in a constitutional court moved by a writ petition; several petitions have been filed in the courts regarding the same. Furthermore, in the wake of recent technological developments, it is significant to build and recognise a robust privacy model to tackle such emerging issues.

Disclaimer – All views and opinions expressed in this article are personal and belong solely to the author(s) and do not necessarily represent those of the LAABh Foundation or the individuals and institutions associated with LAABh Foundation.


[1] Gautam Bhatia, The Supreme Court on Mandatory Voice Samples- II: The Rise of the Executive Court, Indian Constitutional Law and Philosophy Blog (Aug. 4, 2019), https://indconlawphil.wordpress.com/?s=voice&search=Go.

[2] (2017) 10 SCC 1.

[3] (2019) 1 SCC 1.

[4] 2020 SCC OnLine HP 764.

[5] ¶ 21.

[6] 2020 SCC OnLine AP 843.

[7] 2020 SCC OnLine Kar 2743.

[8] ¶¶ 10-11.

[9] Vrinda Bhandari and Karan Lahiri, The Surveillance State, Privacy and Criminal Investigation in India: Possible Futures in a Post-Puttaswamy World, 3(2) University of Oxford Human Rights Hub Journal 15-46, 44 (2020).

[10] Id., at 37.

[11] See Tarun Krishnakumar, Law Enforcement Access to Data in India: Considering the Past, Present, and Future of Section 91 of the Code of Criminal Procedure, 1973, 15 INDIAN J. L. & TECH. 67 (2019).

[12] Bhatia, supra note 4, at 21.

[13] Bhatia, supra note 4, at 21.

[14] 2021 SCC OnLine Kar 5032.

[15] Abhinav Sekhri, Mobile Phones and Criminal Investigations: The Karnataka HC Judgment in Virendra Khanna [Guest Post], Indian Constitutional Law and Philosophy Blog (Mar. 26, 2021) https://indconlawphil.wordpress.com/2021/03/26/mobile-phones-and-criminal-investigations-the-karnataka-hc-judgment-in-virendra-khanna-guest-post/

[16] See Bhandari, supra note 10.

[17] See Torsha Sarkar et. al., On the legality and constitutionality of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, The Centre for Internet and Society, India (2021).

[18] See Vrinda Bhandari and Renuka Sane, Towards a privacy framework for India in the age of the Internet, NIPFP Working paper series Working Paper No. 179 (2016).

[19] Bhandari, supra note 10, at 24.

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