Balancing privacy rights and investigative powers

THE Supreme Court recently upheld a high court order quashing the arrest of former Haryana MLA Surender Panwar in a money-laundering case, while terming his 15-hour-long interrogation by the Enforcement Directorate (ED) as ‘high-handedness’ and ‘inhuman conduct’.

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In another case, on December 13, 2024, an interim order of the SC drew the red line for the ED over access to and copying the content stored in computers and mobile phones seized from Santiago Martin, the ‘lottery king’, and his associates. The court did not prescribe any date for lifting the ban in the Santiago case. It ordered that the matter be heard along with other connected cases in which the ED’s demand to the applicants to produce electronic devices had been challenged and guidelines were sought for such seizures.

If the interim order in the case becomes a precedent, it would have serious consequences on the powers of the law enforcement agencies (LEAs). However, at the same time, it would be a welcome reminder to the citizens that their fundamental right to life, including right to privacy, and the constitutional guarantee against self- incrimination are sacrosanct and that ‘fishing expeditions’ by the LEAs under the cover of investigations are not to be allowed.

Justice Felix Frankfurter, in Nardone vs United States (1939), gave the “exclusionary rule of evidence” and stamped the “doctrine of fruits of the poisonous tree”. It postulates that illegally procured evidence becomes inadmissible in court proceedings; if the source of evidence or the evidence itself is tainted, anything gained from it is also tainted and cannot be used against the accused.

Evidence collected by questionable means, like by using unauthorised phone-tapping or recording without the knowledge of the subject, accessing private information and personal secrets contained in electronic gadgets, conducting illegal and unwarranted searches and recording events using secret cameras, etc, certainly fall in the category of tainted evidence. Indiscriminate confiscation of personal laptops and mobile phones by the LEAs and accessing the contents stored therein also run the risk of intruding into privacy, compromising business secrets and fishing into private affairs of individuals; at times, even bringing their personal and business activities to a halt.

On the other hand, tracing the digital footprint and filtering the electronic record of suspects have become a necessity in almost all heinous crimes, including crimes against women, financial scams, money-laundering, drug trafficking and offences against the state and national security, etc. Perhaps, this is the reason the legislature, hitherto, has refrained from subscribing to the doctrine of “fruits of the poisonous tree” in Indian laws.

Accordingly, the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which prescribes rules of evidence, is silent on the admissibility of illegally procured evidence, although it declares confession caused by inducement, coercion, threat or promise irrelevant in criminal proceedings.

Even the SC, in RM Malkani vs State of Maharashtra (1972), has validated the admissibility of illegally tape-recorded evidence. In the case of Umesh Kumar vs State of AP (2013), the court has observed: “Even if a document is procured through unlawful means, its admissibility would not be barred if it is relevant and genuine.”

In fact, Indian laws put the relevancy of evidence on a higher pedestal than the source of its procurement. Illegally collected evidence is admissible even after the right to privacy has been recognised as a Fundamental Right by the Supreme Court in Justice KS Puttaswamy (retd) vs Union of India and Others (2017).

In fact, in our constitutional scheme, no right, including the right to life, is absolute and may be curtailed in accordance with the procedure established by law. Under Section 349 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the court can force a suspect to give his handwriting and voice sample; Section 53 of the BNSS allows even the extraction of body fluids from an accused person by force to meet the demand of investigations.

Electronic and digital devices have almost become an extension of human memory for a majority of the people nowadays. In Selvi and Others vs State of Karnataka (2010), the Constitutional Bench of the SC allowed the recovery of information from the mind of an accused after obtaining his informed consent before the court by resorting to ‘narco-analysis’, ‘brain-mapping’ and ‘lie detection test’, as an aid to investigation.

Denying ED access to the computers and mobile phones of offenders needs to be examined in this backdrop, too. The interim order in the case should also be viewed in light of the fact that electronic and digital records are included in the definition of ‘document’, as contained in the BSA, and Sections 94 to 97 of the BNSS empowers the LEAs to summon, undertake searches and seize documents during investigations. The order has the implication of taking away this power from the LEAs and may halt investigations in those cases where digital and electronic evidence are crucial.

The investigation needs of the LEAs and yardsticks to judge the admissibility of evidence in courts are two separate domains. Whereas a strict law of evidence needs to be applied during the trial, the LEAs deserve freedom, under strict vigilance of the court, to find out and present the truth before the courts. The protection of citizenry from overzealous law enforcers, though, is equally important.

Unarguably, the issues at hand in the case are contentious. Finding a balance between the contrary demands of the LEAs for just investigations and safeguarding the constitutional rights of the people, both at the same time, is a tightrope walk. It is, however, a given that any blanket prohibition on the powers of the LEAs would not augur well for public safety and national security. Every case needs to be decided on its own merit.

The recommendation of 94th Law Commission of India to give discretion to the trial courts to apply the exclusionary rule of evidence if such evidence tends to bring the administration of justice into disrepute appears to be a prudent alternative.