This is a guest post by the very bright Mr. Ritwik Sharma, Advocate, Delhi.

This is in the light of the recent order by the Hon’ble High Court of Chhattisgarh in Aasha Lata Soni v. Durgesh Soni (CRMP No. 2112 of 2022) whereby the Hon’ble Court overturned an application under S. 311 of the CrPC allowed by the Family Court to further cross-examine a witness on the basis of a recorded phone conversation stating that recording telephonic conversation without the knowledge and permission of the person concerned violates her ‘right to privacy’ under Article 21 of the Indian Constitution.

On the other hand, emphasis must also be placed on another recent Allahabad High Court order in Mahant Prasad Ram Tripathi v. State of UP and Ors. (Criminal Revision No. 935 of 2023) whereby the Hon’ble Court dismissed a revision petition by remarking that, “whether the telephonic conversation between two accused persons was intercepted or not and whether it was done legally or not, would not affect the admissibility of the recorded conversation in evidence against the applicant.

Both orders throw light on the admissibility of evidence with respect to right to privacy which has been guaranteed under Article 21 of the Indian Consitution vide a 9-judge bench decision in KS Puttaswamy v. Union of India [Writ Petition (Civil) No. 494 of 2012]. DY Chandrachud, J, in his judgment, stated that –

 “Privacy is a concomitant of the right of the individual to exercise control over his or her personality. It finds an origin in the notion that there are certain rights which are natural to or inherent in a human being. Natural rights are inalienable because they are inseparable from the human personality.”

KS Puttaswamy v. Union of India [Writ Petition (Civil) No. 494 of 2012]. DY Chandrachud, J

Legal Issues:

The fundamental questions that arise are:

1. Whether right to privacy affects relevancy and admissibility under the Evidence Act? 
2. Can the Court reject an evidence on the ground that it infringes a person’s right to privacy under Article 21, even if the evidence is relevant and admissible? 
3. Whether law enforcement should be allowed to violate the privacy of citizens to obtain evidence that may convict them of criminal activity, as their wrongfulness would not affect the admissibility of the evidence?
4. Are tape-recorded conversations affected by the KS Puttaswamy (Supra) verdict?

What is Evidence?

Evidence is defined under Section 3 of the Indian Evidence Act, 1872. Evidence means and includes:

Broadly speaking, all statements and documents made or produced before the Court are evidence. For example, the contents of a memory card or a pen drive in relation to a crime amount to a ‘document’ under Section 3 of the Evidence Act and therefore, is evidence.

The word ‘evidence’ signifies, in its original sense, the state of being evident, i.e., plain, apparent and notorious. Evidence should not be confused with proof. Accurately speaking, the terms ‘proof’ and ‘evidence’ are distinguished in this: that proof is the effect or result of evidence, while evidence is the medium of proof. As soon as a document is produced for the inspection of the Court, it becomes evidence and it could be acted upon, when it is proved. When it is found acceptable, then it is to be considered in conjunction with other items of evidence.

Relevancy and Admissibility

Relevant means, that which is logical probative. Admissibility is not based on logic but on law and strict rules. Many facts gaving no bearing on the facts to be proved are admissible. The proof of loss of original deed has no effect on the decision of issue but this is admissible in evidence before secondary evidence about the contents of the relevant document may be given. In the Indian Evidence Act the question of relevancy has been dealt from S.5 to 55 and that of admissibility from 56 and onwards.

The rules of relevancy declare certain facts relevant, rules of admissibility lay down as to whether a certain form of evidence about relevant fact, may be allowed or excluded. Relevancy means what fact may be proved before a Court. The facts that are allowed to be proved under Evidence Act are called relevant facts. Admissibility is the means and the method of proving the relevant facts. Relevancy and Admissibility of facts are neither synonymous nor co-extensive. 

Admissibility of Illegally Obtained Evidence

India falls under the category of those common law nations that have adopted the strictest approach in taking of evidence. As per the Indian Evidence Act, illegality in the collection of evidence does not, in the absence of any specific statutory or constitutional provision, render the evidence legally inadmissible. Broadly speaking, as long as evidence is relevant, it cannot be discarded regardless of whether it was obtained legally or illegally. This is called the exclusionary rule of evidence.   

Since the law of evidence in our country is modelled on the rules of evidence which prevailed in English law, it is important to rely on Kuruma v. R. [1955 AC 197], whereby an accused was found in unlawful possession of some ammunition in a search conducted by two police officers who were not authorised under the law to carry out the search. The question was whether the evidence with regard to the unlawful possession of ammunition could be excluded on the ground that the evidence had been obtained on an unlawful search. The Privy Council stated the principle as under:

“The test to be applied, both in civil and in criminal cases, in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how it was obtained.”

Let us first examine Pooran Mal v. Director of Inspection, Income Tax [1974 SCC (1) 345]. A 5-judge Constitutional bench of the Supreme Court declined to issue a writ of prohibition in restraint of the use of evidence gathered during search and seizure by the Income Tax authorities in contravention to S. 132 of the Income Tax Act, 1961. The Court stated as follows – 

“The Indian Evidence Act permits relevancy as the only test of admissibility of evidence and, secondly, that Act or any other similar law in force does not exclude relevant evidence, on the ground that it was obtained under an illegal search or seizure, it will be wrong to invoke the supposed spirit of our Constitution for excluding such evidence. Nor is it open to us to strain the language of the Constitution, because some American Judges of the American Supreme Court have spelt out certain constitutional protections from the provisions of the American Constitution.”

Pooran Mal v. Director of Inspection, Income Tax [1974 SCC (1) 345].

The Court further stated that –

“So far as India is concerned its law of evidence is modeled on the rules of evidence, which prevailed in English law, and courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure.”

Pooran Mal v. Director of Inspection, Income Tax [1974 SCC (1) 345].

Emphasis should also be placed on State v. Navjot Sandhu @ Afzal Guru, [2005] Cri LJ 3950  whereby the Supreme Court stated that – 

“The legal position regarding the question of admissibility of the tape recorded conversation illegally collected or obtained is no longer res integrain view of the decision of this Court in R.M. Malkani Vs. State of Maharashtra [(1973) 1 SCC 471]. In that case, the Court clarified that a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible as res gestae under Section 7 of the Evidence Act. Adverting to the argument that Section 25 of the Indian Telegraph Act was contravened the learned Judges held that there was no violation. At the same time, the question of admissibility of evidence illegally obtained was discussed. The law was laid down as follows:

“There is warrant for the proposition that even if evidence is illegally obtained it is admissible. Over a century ago it was said in an English case where a constable searched the appellant illegally and found a quantity of offending article in his pocket that it would be a dangerous obstacle to the administration of justice if it were held, because evidence was obtained by illegal means, it could not be used against a party charged with an offence. [Jones v. Owen (1870) 34 JP 759]

Admissibility of Tape Recorded Conversation

In continuance of the debate, it is imperative to also mention the admissibility and relevance of tape-recorded conversations. The original Evidence Act came into being in 1872 when there was hardly any technological advancement. The Courts adopted a very conventional interpretation of evidence which was strictly confined to oral statements and physical documents. There was no concept of recorders and interceptors. The technological shift happened in the 1960s and 70s when the Courts started facing challenges in the form of tape recorded conversations. The primary issue before the Courts was that whether these conversations fall into the category of Evidence under S.3 of the Evidence Act.

The admissibility of tape recorded confession was addressed by the Hon’ble Supreme Court in R.M. Malkani v. State of Maharashtra (Supra) by stating that tape recorded confession is admissible. Tape recorded statement is document as defined in Section 3 of the Evidence Act which stands on no different footing than Photograph. They are relevant on satisfying the following conditions:

1. the voice of the person alleged to be speaking must be identified by the maker of the record or by others who know it;
2. accuracy of what was actually recorded has to be proved by the maker of the record, and satisfactory evidence, direct or circumstantial, has to be there so as to rule out the possibility of tampering with the record;
3. the subject-matter recorded has to be shown to be relevant according to the rules of relevancy in the Evidence Act.

It may be used as evidence, confession and it may also be used for contradiction or corroboration under Sections 145 or 157 of Evidence Act.

In the aforementioned case, reliance was also placed on Yusufalli Esmail Nagree vs The State Of Maharashtra [1968 AIR 147], in this case the appellant offered bribe to Sheikh, a Municipal Clerk. Sheikh informed the Police and the Police laid a trap. Sheikh called Nagree at the residence and the Police kept a tape recorder concealed in another room. The tape was kept in the custody of the police inspector. Sheikh gave evidence of the talk and the tape record corroborated his testimony. Just as a photograph taken without the knowledge of the person photographed can become relevant and admissible so does a tape record of a conversation unnoticed by the talkers. 

Further, in Ram Singh v. Ram Singh (Col.), AIR 1986 SC 3, the Supreme Court through Justice Fazal Ali laid down the following tests regarding the admissibility of tape recorded conversation —

1. the voice of the speaker must be identified by the maker of the record or other persons recognizing his voice. Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker;
2. the accuracy of the tape recorded statement must be proved by the maker of the record by satisfactory evidence – direct or circumstantial;
3. possibility of tampering with, or erasure of any part of, the tape-recorded statement must be totally excluded;
4. the tape-recorded statement must be relevant;
5. the recorded cassette must be sealed and must be kept in safe or official custody;
6. the voice of the particular speaker must be strictly audible and must not be lost or distorted by other sounds or disturbances.

From the above discussion, it seems clear the Indian Courts have a strict adherence to the rule of relevancy under the Evidence Act without going into the legality or illegality. 

94th Report of the Law Commission of India

This Report recommended the insertion of Section 166-A into the Indian Evidence Act, which would grant courts the power to refuse the admission of any illegally or improperly obtained evidence, if the court believes that the nature of the means of gathering the evidence would lead to disruption of the administration of justice. Further, the provision would advise courts to look into surrounding circumstances while admitting or refusing evidence, such as the importance of the evidence, the seriousness of the case and whether the circumstances justified the action. Therefore, this Section would seek to give courts the discretion to adjudge whether the illegality is so shocking and outrageous that the court would rather exclude the evidence.

However, no concrete steps have been taken to implement this provision.

Right to Privacy and its Conflict with Admissibility of Illegally Obtained Evidence: Importance of the KS Puttaswamy verdict and the changing landscape of Article 21 of the Indian Constitution 

The concept of right to privacy with respect to tape-recorded conversations was indirectly addressed in RM Malkani (Supra). It was held that – 

“the telephonic conversation of an innocent citizen will be protected by Courts against wrongful or high handed’ interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. It must not be understood that the Courts will tolerate safeguards for the protection of the citizen to be imperiled by permitting the police to proceed by unlawful or irregular methods. In the present case there is no unlawful or irregular method in obtaining the tape recording of the conversation.”

In 1996, a two-judge bench of the Supreme Court in People’s Union for Civil Liberties (PUCL) v. Union of India AIR [1997 SC 568] was seized of an important matter regarding phone-tapping of prominent personalities. The question for consideration before this Court was whether “surveillance” under Chapter XX of the U.P. Police Regulations constituted an infringement of any of the fundamental rights guaranteed by Part III of the Constitution? The Hon’ble Apex Court, while striking down the Regulations as violative of Article 21 of the Constitution stated as follows – 

“We have, therefore, no hesitation in holding that right to privacy is a part of the right to “life” and “personal liberty” enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy; Article 21 is attracted. The said right cannot be curtailed “except according to procedure established by law”.”

“The right privacy – by itself – has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of ones home or office without interference can certainly be claimed as “right to privacy”. Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is a part of modern man’s life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. 

Telephone conversation is an important facet of a man’s private life. Right to privacy would certainly include telephone-conversation in the privacy of one’s home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.”

The Court held that telephone tapping infringed right to privacy under Article 21 of the Indian Constitution. However, the Apex Court did not decide on the exclusionary rule in evidence based on the legality of the methods used to obtain it.

There are multiple reasons why Courts refrain from deciding against the exclusionary principles of evidence collection. Firstly, the law of evidence in India and fully codified. Admissibility and inadmissibility of evidence has been properly defined under the statute. Secondly, certain safeguards have been laid down regarding arrest, investigation, search and seizure under the Code of Criminal Procedure. So, if police officials do not adhere to these provisions, the Courts have the power to reprimand such officials without discussing the admissibility of the evidence procured from such arrest or seizure. Broadly speaking, the Courts have been hesitant in going beyond the statutory limits defined under the Evidence Law.

The discussion regarding right to privacy in light of illegal search and seizure was extended to a greater level in KS Puttaswamy (Supra). A 9-judge Constitutional bench of the Supreme Court held that ​​privacy, in its simplest sense, allows each human being to be left alone in a core which is inviolable.

RF Nariman. J, in his judgment, upheld the ratio laid down in PUCL (Supra) by stating that phone tapping without adhering to the procedure established by law would be violative of Article 21. 

The Apex Court, relying on the 4th Amendment of the US Constitution, cited Boyd v. United States [116 US 616 (1886)]. The question before the US Supreme Court was whether compulsory production of a person’s private papers to be used in evidence against him in a judicial proceeding, is an unreasonable search and seizure within the meaning of the Fourth Amendment. Justice Bradley delivered the opinion of the Court and held as follows: 

“The principles laid down in this opinion affect the very essence of constitutional liberty and security… they apply to all invasions on the part of the government and its employees of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offence, but it is the invasion of his indefeasible right of personal security, personal liberty, and private property, — it is the invasion of this sacred right …

The Apex Court further relied on the 1967 decision in Katz v United States[389 US 347 (1967] which revolutionized the interpretation of the Fourth Amendment regarding the extent to which a constitutional right to privacy applies against government interference. In this case, Charles Katz was a gambler who used a public telephone booth to transmit illegal wagers. Unbeknownst to Katz, the FBI which was investigating Katz’s activity, was recording his conversations via an electronic eavesdropping device attached to the exterior of the phone booth. Subsequently, Katz was convicted based on these recordings. He challenged his conviction, arguing that the recordings were obtained in violation of his Fourth Amendment rights. The constitutional question in the case was whether the 4th Amendment protection from ‘unreasonable searches and seizures’ was restricted to the search and seizure of tangible property, or did it extend to intangible areas such as conversations overheard by others. It was held that the Government’s eavesdropping activities violated the privacy, upon which petitioner justifiably relied, while using the telephone booth, and thus constituted a “search and seizure” within the meaning of the Fourth Amendment, and that the Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements.

Justice SA Bobde, in his verdict, held that M.P. Sharma v. Satish Chandra [1954 SCR 1077] is unconvincing not only because it arrived at its conclusion without enquiry into whether a privacy right could exist in our Constitution on an independent footing or not, but because it  wrongly took the United States Fourth Amendment – which in itself is no more than a limited protection against unlawful surveillance – to be a comprehensive constitutional guarantee of privacy in that jurisdiction. Therefore, M.P. Sharma (Supra)was overruled.

The Court concluded by saying privacy is the constitutional core of human dignity. Privacy has both a normative and descriptive function. At a normative level privacy sub-serves those eternal values upon which the guarantees of life, liberty and freedom are founded. At a descriptive level, privacy postulates a bundle of entitlements and interests which lie at the foundation of ordered liberty.

The Court further held that like other rights which form part of the fundamental freedoms protected by Part III, including the right to life and personal liberty under Article 21, privacy is not an absolute right. A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable.

The right to privacy judgment isn’t a narrow judgment by any means. It has laid down various facets of individuals rights and state duties. Justice RF Nariman, in his judgment, held that one of the main aspects of the right to privacy is that of informational privacy which does not deal with a person’s body but deals with a person’s mind. This, therefore, recognizes that an individual may have control over the dissemination of material that is personal to him. It also follows that unauthorised use of such information may lead to infringement of this right.

However, the sticking point still remains. KS Puttaswamy (Supra) puts an embargo on illegal search and seizure if it violates the triple test of (a) proportionality; (b) illegality; (c) legitimacy but the exclusionary rules of evidence remain unanswered. Further, although the right to privacy exists within the contours of Article 21 but lack of legislation would repel courts from deciding relevancy of evidence on the grounds of infringement of privacy. Therefore, the declaration of the right to privacy leaves a gaping hole in evidence and constitutional law, which requires the attention of the legislature as well as the judiciary. 

Conclusion

Both Aasha Lata Soni (Supra) and Mahant Ram Prasad Tripathi (Supra) cannot be prima facie discarded because both of them have been founded on legitimate grounds upheld by Constitutional bench judgments. Right to Privacy still remains an incomplete law because the mandate of the judgment i.e., establishment of a procedure established by law, is yet to be fulfilled by the legislature. On the other hand, Indian Courts have continued to rely on the exclusionary rule inherited from the common law, as seen in the Allahabad HC judgment in Mahant Ram.

However, the courts have started to drift away from exclusionary rule by giving primacy to privacy. The Hon’ble High Court of MP in Anurima alias Abha Mehta v. Sunil Mehta [AIR 2016 MP 112] held that recording of conversation by a husband without the knowledge of the wife, behind her back, and is definitely an infringement of her right to privacy under Article 21 of the Constitution and it could not be used as instrument to create evidence.

In Vinit Kumar v. CBI [2019 SCC OnLine Bom 3155], the Bombay High Court departed from the established practice of ignoring concerns of privacy in relation to evidence, and instead adopted the three-pronged test of Puttaswamy case and stated as follows:

“the directions of the Apex Court in PUCL’case (supra) which are now re-enforced and approved by the Apex Court in K. T. Puttaswamy (supra) as also the mandatory rules in regard to the illegally intercepted messages pursuant to an order having no sanction of law, are permitted to be flouted, we may be breeding contempt for law, that too in matters involving infraction of fundamental right of privacy under Article 21 the Constitution of India. To declare that dehorse the fundamental rights, in the administration of criminal law, the ends would justify the means would amount to declaring the Government authorities may violate any directions of the Supreme Court or mandatory statutory rules in order to secure evidence against the citizens. It would lead to manifest arbitrariness and would promote the scant regard to the procedure and fundamental rights of the citizens, and law laid down by the Apex Court.”

The conflict remains. What happens when fundamental right to privacy and exclusionary rule of evidence collide? As explained above, Courts have upheld the exclusionary rule time and again. As things stand, Pooran Mal (Supra) is law, but so is KS Puttaswamy. Perhaps the Pooran Mal judgment needs a relook by a larger bench in the light of the KS Puttaswamy verdict because Courts have been relying on English precedents while neglecting American principles that uphold right to privacy and grant protection against illegal search and seizure, as held in KS Puttaswamy. It is also important to note that Pooran Mal placed its reliance on MP Sharma and AK Gopalan v. State of Madras AIR [1950 SC 27] which have been overruled by the Supreme Court.

In the light of this detailed discussion and conflicting views held by Constitutional Courts, it is now upto the legislature and the judiciary to finely balance fundamental right to privacy on one hand and the conflicting principles of the admissibility of illegal evidence on the other hand.