This article is written by Aashi Sharma and Harshita of Rajiv Gandhi National University of Law
This article delves into the intersection of privacy rights and the admissibility of electronic evidence, using the case of Aasha Lata Soni v. Durgesh Soni to explore how Indian courts balance the right to privacy with the need for fair trial evidence in the age of technology.
Introduction
Despite the numerous judgements having delivered by the Apex Court as well as the High Courts on phone tapping, it was not until that the juncture of privacy rights and admissibility of electronic evidence collected by way of phone tapping was explored. The said issue has sparked off legal discourse when it comes to deliberation upon it from the perspective of legislative as well as judicial intent to ensure data protection. The right to privacy ,a fundamental right, remains at crossroads with procedural laws, as is evident in the case at hand i.e. Aasha Lata Soni v. Durgesh Soni decided by Chhattisgarh High Court.
Facts and Judgement
Year | Event |
2019 | ∙ Petitioner filed suit for maintenance under S. 125, CrPC in family court. ∙ Respondent filed application for cross examination based on phone conversation recorded without consent. |
2021 | ∙ Court allowed application of said cross examination via an order. ∙ Petition filed in Chhattisgarh High Court alleging inapplicability of such electronic evidence. |
2023 | ∙ Recording phone conversation without consent is a Violation of Right to Privacy (Art. 21). |
The Primacy of Other Rights and Admissibility of Evidence
In the instant case, the Hon’ble High Court overturned the decision of the family court to examine the witness based on a recorded telephonic conversation stating that recording a phone conversation without the knowledge and permission of the person violates her “Right to Privacy” under Article 21 of the Indian Constitution. This not only infringes on the right to privacy of the individual but also her Right to remain silent and the Right against self-incrimination under Article 20(3) of the Indian Constitution. According to the latter, that no one can be compelled to be a witness against himself/herself. This also involves striving to achieve a balance between the Right to Privacy and the Right to a free and fair trial where the accused should be given a chance to adduce any evidence to defend himself or herself. This tussle between laws gives new interpretations to laws and sets the precedent for future reference.
In India, the admissibility of evidence is based on the exclusionary rule of evidence according to which as far as the evidence is relevant, it cannot be disregarded regardless of how it was obtained subject to some restrictions. This rule was upheld by the Privy Council in Kuruma V. Queen. The Indian Evidence Act ,owing to its antiquity, only included written and oral evidence but to keep in pace with technological advancements the Information Technology Act, 2000 (IT Act) comes into the picture. Section 65B of the IT Act governs the admissibility of electronic records as evidence in court proceedings. This provision stipulates those electronic records, such as audio recordings, must fulfil certain criteria to be admissible.
In the judgement of R. M. Malkani vs. State of Maharashtra, in which a 2-Judge Bench of the Supreme Court laid down three conditions for admissibility of a tape recording i.e., relevance, voice identification and proof of accuracy. Additionally, if the evidence is procured illegally, it is admissible in the court of law, as first held in Regina vs. Masqud Ali, and in Yusufalli Esmail Nagree vs. The State of Maharashtra, the Supreme Court held that even if the recording was done without the knowledge, it cannot be treated as an objection to the admissibility of the tape recordings.
Thus, illegally obtained electronic shreds of evidence must be taken with a pinch of salt but it cannot be rejected on the ground of infringement of fundamental rights as Matrimonial issues involve personal matters of husband and wife and any evidence cannot be just rejected on this ground.
The Non-Absolute Nature of Rights in Legal Discourse
It is pertinent to acknowledge that no right is absolute, given the complex interactions that exist between the right to privacy and right to evidence in the Indian legal landscape. Recognising that rights frequently overlap and at times are at odds, this acknowledgment serves as the cornerstone of legal discourse. Therefore, it requires the nuanced understanding that neither the right to privacy nor evidence exists in isolation, they coexist within a framework that demands a careful balance. The right to privacy is a fundamental right but subject to some reasonable restriction. In context of Article 21, any infringement of the right to privacy must be based upon a fair, just and reasonable procedure.
The court observed that the “right to privacy must yield the right to a fair trial”. It is a critical part of the concept of fair trial is that a litigating party gets a fair chance to bring relevant evidence before court. It is important to appreciate that while the right to privacy is essentially a personal right, the right to a fair trial has wider ramifications and impacts public justice. The need for ensuring the principles such as Audi altrem partem (hear the other side) or Nemo judix in causa sua (No man shall be the judge in his case) is that in the court no man is above the law and every person is equal in the eyes of law, so it is important to safeguard the rights of every party.
It is foreseeable that in most cases that come before the Family Court, the evidence sought to be marshalled would relate to the private affairs of the litigating parties as Family Courts have been established to deal with disputes which are essentially sensitive, personal and involve intimacies. Legal proceedings often necessitate the collection of evidence that may involve intrusion into an individual's private sphere to uphold broader societal interests. The challenge lies in harmonizing the imperative to gather evidence for a fair trial while protecting an individual's right to privacy.
Evolution Of State Surveillance Via Judicial and Executive Actions
State surveillance in India dates back to 19th century colonial laws which aimed at monitoring citizens to curb dissent. Post independence, the Indian Judiciary legitimized acts of surveillance by state agencies ,like the police, in a number of cases. For instance, both M.P. Sharma v. Satish Chandra and Kharak Singh v. State of Uttar Pradesh attributed state surveillance to the maintenance of public order and considered it a reasonable restriction. However, the Supreme Court in 1996 brought about a dramatic shift in the state’s sweeping power. From affirming that telephonic tapping is an infringement of the right to privacy in PUCL v. Union of India to creating certain guidelines against the excessive surveillance by the state, these changes were a breath of fresh air.
Keeping in view the advancement in technology, the Indian laws witnessed an overhaul. As a result, the Information Technology Act, 2000 and the 2008 amendments widened the scope of state surveillance compared to Telegraph Act 1885. The latter dealt with interception of information at the cost of the citizens’ privacy under five conditions. But, Section 69 of the IT Act, 2000 added ‘investigation of crime’ as a sixth condition and thus created room for unbridled power to intercept, monitor and decrypt data. The lack of judicial oversight and no system of checks and balances are two of the many lacunae. A Case in point is the Niira Radia phone tapping case which uncovered the glaring discrepancies in the working of this act. Legislations like these paved way for arbitrary and unfettered surveillance by government for reasons which go beyond the intents of the legislation.
Conclusion: Striking a Delicate Balance
The admissibility of evidence recorded in breach of the right to privacy is a complex legal issue that requires a delicate balance between upholding justice and safeguarding individual rights. This judicial balancing act is guided by the principle that no right can be absolute when it compromises the essence of another. For dispensation of justice, it is important for the court that some safeguards must be considered by the courts in admitting the evidence.
As technology continues to evolve, legal frameworks must recognize the need of the hour to adapt to address these challenges while ensuring a fair and just legal process. Ultimately, the resolution of issues pertaining to the protection of privacy ,on one hand, and dispensation of justice ,on the other, requires a thorough analysis of the principles of justice, equity and privacy. The evolving legal landscape emphasizes the need for an approach, which maintains an equilibrium between the pursuit of justice and the commitment to safeguarding individual liberties.
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