The right to privacy is now one of the popular and widely known legal principles. The right to privacy emerges from the Indian constitution article 21 of the right to life and personal liberty. The famous 1000+ pages judgment of Puttasamy[1] only added layers to the thick skin of the legal veil which already contains landmark judgments such as Govind[2], R. Rajagopal[3], and People’s Union for Civil Liberties[4]. The principle though is not supreme and comes along with its limitations which rule that it is not an absolute right. Like many other fundamental rights, it is subject to reasonable restrictions and can be curtailed by the procedure established and followed under law. The Evidence produced in the Court of Law, both civil and criminal cases decide the outcome of any judgments. Therefore producing of such evidence sometime involves both legal and illegal acts employed by the parties. The reason behind the selection of the topic too could be rooted to analyzing such interesting and important principles of law where neither can be compromised without a detailed study. The article aims to analyze the right to privacy and its admissibility of evidence.
The Admissibility of an Evidence
When an evidence is collected, oftentimes it infringes the right to privacy. Let’s say I am talking about a crime to my accomplice on a phone call, which is in fact within the ambit of my right to privacy. But that phone call is produced as an evidence against me in the court. Now this evidence sought by infringing the right to privacy of the accused is admissible or not? Is the question that this section seeks to answer.
The evidence produced in the court of law needs to be first cleared of admissibility before using it in the Court of Law, this aspect was thoroughly checked in the case of State of Punjab v. Baldev Singh[5], where the court explained the importance of the mode of accepting the evidence. Going a step further the court added the nature of the evidence obtained and the safeguard violated are both relevant factors to determine and conduct a fair trial.
There are numerous other judgments on the contrary. The general principle of the court as ruled in Pooran Mal v. Director of Inspection (Investigation) [6] was that the only test of admissibility of evidence is the test of relevance. The subject case was ruled by the Supreme Court in respect to the illegal seizure of sensitive documents including accounting books and documents. The court has also accepted tape recorders as evidence which can be considered as a statement in the case of Yusufalli Esmail Nagree v. The State of Maharashtra[7] the court further ruled that the absence of knowledge being recorded cannot be claimed as a ground for inadmissibility. Thereby completely ignoring the principle of privacy.
Likewise in N. Sri. Rama Reddi v. V.V. Giri, the Supreme Court accepting the tapes as evidence ruled the said tapes can be used for corroboration as well contradicting evidence[8] the Court in another judgment[9] devised a three rule system to admit the evidence to tape recorder which is (a) relevance (b) voice identification and (c) proof of accuracy. Further and more importantly as far the article is concerned the Court said has been held that evidence, even if procured illegally, is admissible.
The review of the above judgments leads us again to the same obnoxious but essential question of the status of privacy in respect to evidence collection and admission in the court. This brings us to the conflict of dealing with two fundamental rights overlapping each other which will be interestingly dealt with by a case of divorce.
Institution of Marriage – A Peculiar Case of Evidence Admission.
As against the common principles of admitting an evidence, the married couple are often restricted. Thereby, the topic gets a little twisted when there arises a dispute within the marriage, the relationship of trust. Now, admitting an evidence and not infringing the right to privacy of either party is often challenging.
The evidence act recognizes the unique relationship of marriage. It restricts evidence that is part of a private affair between the couple. As any communication during a marriage cannot be taken as evidence[10] with some exceptions. Even though this does not apply to a dispute between the said married parties the section holds testimony for recognition of the private affair of a married couple. The Family Courts Act, 1984 (hereafter courts act) breaks this barrier[11]. In the dispute between the married couple the application of the evidence act, its admissibility, and relevancy does not hold in Courts Act. So the onus on any acceptability is now with the admissibility and relevance as viewed by the Courts Act. And to this, the Indian judiciary has been a pendulum to maintain the balances of either side.
Either of the spouse’s phone tapping and producing the said recording as evidence cannot be accepted by the Court[12] as it is illegal and infringes the privacy of the person being tapped, even if the said evidence is true it is still inadmissible before the court.
The opposing view was taken by the court in the landmark case of Deepti Kapur vs. Kunal Julka[13] where the said two fundamental rights of fair trial and right to privacy took opposing pedestal. The facts are the husband had recorded a telephonic conversation of his spouse with her friend not by tapping it but through placing a CCTV in the bedroom. The husband filed for divorce on the grounds of cruelty. The case admitted the evidence by going through several precedents and reasons. The court admitted the evidence as it was recorded by an external device. Further, it was more concerned more about the consequence of such breach of privacy rather than the principle of protection of the rights that have been breached already. When two important fundamental rights were involved the learned judge used the principle of harmonious construction and the right to a fair trial was given the green over the right to privacy.
Conclusion
Thus completing the article of the intriguing question of evidence and right to privacy the clear distinction is yet to be placed in by the competent authority, further, it is of paramount importance to know until each case produces its ruling as per the unique set of facts. This can be drawn with the comparison of rights against self-incrimination and the need to bring out the truth. In concluding remarks more than the balancing act between the two polarized principles it is crucial to serve justice.
[1] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (India).
[2] Govind v. State of Madhya Pradesh, AIR 1975 SC 1378 (India).
[3] R. Rajagopal v. State of Tamil Nadu, 1995 AIR 264 (India).
[4] People’s Union for Civil Liberties (PUCL) vs. Union of India, AIR 1997 SC 568 (India).
[5] State of Punjab v. Baldev Singh, (1999) 6 SCC 172 (India).
[6] Pooran Mal v. Director of Inspection (Investigation), (1974) 1 SCC 345 (India).
[7] Yusufalli Esmail Nagree v. The State of Maharashtra, (1967) 3 SCR 720 (India).
[8] N. Sri. Rama Reddi v. V.V. Giri, (1970) 2 SCC 340; S. Pratap Singh v. State of Punjab, (1964) 4 SCR 733 (India).
[9] R.M. Malkani v. State of Maharashtra, 1973) 1 SCC 471 (India).
[10] Section 122 of The Indian Evidence Act, 1872.
[11] Section 14 of The Family Courts Act, 1984 (India).
[12] Rayala M. Bhuvaneswari v. Nagaphanender Rayala, AIR 2008 AP 98 (India).
[13] Deepti Kapur vs. Kunal Julka 2020 SCC OnLine Del 672 (India).