In 2017, the Supreme Court of India, in its landmark judgement categorically held that the Right to Privacy is a fundamental right which is intrinsic to the freedom and liberty of a person. The largely celebrated judgement of Justice K. Puttaswamy (Retd.) &Anr -V/s- Union of India[1], came in as a sigh of relief to the hopeful liberalists in our country, paving way for a new age of constitutional freedom.

In the backdrop of the law declared by the Supreme Court, quintessentially holding that right to privacy is a part of Fundamental Right guaranteed to every person within the territorial borders of Republic of India, subject to exceptions, a new challenge has arisen defining and protecting the sphere of privacy in relation to a public servant, who, by virtue of the office held by him has a special need to protect his privacy. This Article attempts to cover a facet of privacy of a public servant which is often less discussed or ignored. Can the protection of privacy be extended to corruption cases?
Let us first analyze the judgement of the Supreme Court in Justice K. Puttaswamy (Retd.) &Anr -V/s- Union of India( The privacy judgement ).

The Privacy judgement

In 2015, a three-judge bench of the Supreme court was hearing the matter wherein the Aadhaar card scheme was challenged on the ground that - the collection of biometric data violated the right to privacy which according to the Petitioners therein was inherent in Article 21 of the Indian Constitution. It was then that the controversial proposition – The Indian Constitution does not specifically protect the Right to Privacy in view of the decisions rendered = in M P Sharma v Satish Chandra, District Magistrate, Delhi[2] and Kharak Singh v State of Uttar Pradesh[3]was presented before the Court by the Union Government.
It was the opinion of the three-judge bench that the matter involved issues of far reaching importance pertaining to interpretation of the Constitution and referred the question to be decided by a larger bench. In July 2017, a constitution bench of 9 Hon’ble judges, presided by the then Chief Justice of India was constituted, to resolve the question if right to privacy was inherent in Article 21 as an integral part of the Constitution.

The order reads as under:
During the course of the hearing today, it seems that it has become essential for us to determine whether there is any fundamental right of privacy under the Indian Constitution. The determination of this question would essentially entail whether the decision recorded by this Court in M.P. Sharma and Ors. vs. Satish Chandra, District Magistrate, Delhi and Ors. - 1950 SCR 1077 by an eight-Judge Constitution Bench, and also, in Kharak Singh vs. The State of U.P. and Ors. - 1962 (1) SCR 332 by a six-Judge Constitution Bench, that there is no such fundamental right, is the correct expression of the constitutional position….

On August 24, 2017, the nine-judge bench of the Supreme Court rendered its unanimous verdict holding that the right to privacy is an intrinsic part of right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution. Further, by way of this judgement, the decisions rendered by the Supreme Court in M.P. Sharma and Kharak Singh (supra) to the extent that they held that the right to privacy is not protected by the Constitution, was overruled.

The period after M.P. Sharma and Kharak Singh saw a divergence of opinions on the position of law with regard to the right to privacy and its constitutional protection. The Supreme Court, with the intention to set the law right, while rendering its judgement held that the decisions rendered subsequent toKharak Singh which have enunciated the position that the right to privacy is a fundamental right, lay down the correct position of the law.
The above is the brief operative portion of the an otherwise voluminous judgement, wherein six separate decisions were rendered by the bench. Justice Chelameshwar (Retired), Justice Bobde, Justice Sapre, Justice Nariman and Justice Kaul. Justice Chandrachud, while meticulously analysing the issue wrote on behalf of himself, the then Chief Justice JS Khehar, Justice Agrawal (Retired) and Justice Abdul Nazeer.

Is Privacy available to all?

Article 21 of the Constitution states that no person shall be deprived of the right to life or personal liberty except according to procedure established by law. Therefore, it is clear that this right is available to both citizens as well as non-citizens. This has been held by the Supreme Court as early as in the year 1955 in the case of Hans Muller of Nurenberg -V/s- Superintendent, Presidency Jail Calcutta and Others[4] wherein it held - Article 19 of the Constitution confers certain fundamental rights of freedom on the citizens of India, among them, the right to move freely throughout the territory of India and to reside and settle in any part of India , subject only to laws that impose reasonable restrictions on the exercise of those rights in the interests of the general public or for the protection of the interests of any Scheduled Tribe. No corresponding rights are given to foreigners. All that is guaranteed to them is protection to life and liberty in accordance with the laws of the land. This is conferred by Article 21 which is in the following terms: No person shall be deprived of his life or personal liberty except according to procedure established by law … .

In view of the Privacy judgement rendered in 2017, we can safely infer that since the right to privacy is an integral part of the right to life, the freedom of privacy contained in Article 21 is also available to citizens and non-citizens alike.

Let us now look at the subsequent aspect of the right to life i.e., its restriction. The Constitution in Article 21 clearly states that the right to life and personal liberty is not absolute and can be restricted or done away with by the State according to procedure established by law.

The question then arises - What is procedure established by law?

The landmark judgement of A.K. Gopalan -V/s- State of Madras[5] was the first decision wherein the Supreme Court attempted to give a meaning to the term ‘procedure established by law’. It was held by a majority that the words ‘procedure established by law’simply meant the procedure established by a State made law and the Court cannot look into the reasonableness of the law. However, Justice Fazl Ali as he then was, dissented from this majority view and held in his divergent judgement that the term ‘procedure established by law’should draw nexus from the term ‘due process of law’of the American Constitution, the interpretation of which includes the fundamental principles of justice.

The restrictive approach adopted in Gopalan’s was called in question in Maneka Gandhi -V/s- Union of India[6]. It was the contention of the Petitioner therein that ‘procedure established by law’under Article 21 should be just, reasonable and fair. The seven-judge bench of the Supreme Court, while adopting the dissenting view of Justice Fazl Ali referred supra, rendered in Gopalan’s case, held that the procedure established by law should be reasonable, just and fair it shall be free from any unreasonableness and arbitrariness.

This marked the beginning of the judicial approach that the legislative or the executive cannot take the benefit of existing state law to act in an unreasonable or arbitrary fashion, especially by violating the principles of natural justice.

Privacy and Corruption – Interrelationship

Corruption is a societal disease prevalent at all levels of bureaucracy plaguing almost all societies, on which varied efforts are underway to curb its cause and effect. In India, the legislature enacted the Prevention of Corruption Act, 1988 with the object to combat corruption in government agencies and public-sector businesses in India. Recently, the 1988 Act was amended and the legislature enacted the Prevention of Corruption (Amendment) Act, 2018. The new amendment brings the Act under a wider ambit to cover the definition of undue advantage, recognizing gratification other than in pecuniary measures and further bringing commercial establishments under the purview of the Act.

The taking of undue advantage by a public servant and the granting of such advantage by any other person is made a criminal offence under the 1988 Act. The relevant sections thereof would be Sections 7, 7A and Section 8.
In India, majority of corruption cases are registered by the law enforcement agencies based on an audio or visual recording of the suspected public servant by the Complainant or the person aggrieved of such behavior. The general trend is that the Complainant will approach the police with his grievance against a public servant and the police would in-turn send the complainant with a voice recorder with the intention to record the conversation between the Complainant and the suspected public servant. Once this material piece of evidence is recorded, the Complainant would hand over the same to the police, based on which the designated authority would register the case and arrest the suspected public servant without any undue delay.

What needs to be examined in greater detail is whether the privacy of the public servant can be violated without his knowledge by the inducement of a third person, who has not been adequately authorized under law for carrying on such acts of invasion.

By recording the conversation of the public servant without his knowledge and explicit consent, the agency of the State is violating the Right to Privacy which is available to such public servant by virtue of the Privacy judgement. One of the very first cases dealing with this proposition was the Kharak Singh’s case[7], wherein Kharak Singh who was charged for the offences of dacoity and robbery was subjected to constant surveillance by the police, amongst other things. It was his contention before the Supreme Court that his Right of Privacy was violated.

However, the Supreme Court held that the Right to Privacy was not a fundamental right under Article 21 of the Constitution. Similarly, in M.P. Sharma[8], the 8-judge bench of the Supreme Court held that the drafters of the Constitution did not intend to subject the power of search and seizure to a fundamental right of privacy. They opined that the Constitution does not include language similar to the Fourth Amendment of the US Constitution, and found no justification to import the concept of a fundamental right to privacy in search-and-seizures, through what they called a 'strained construction’.

These views have been reversed by the Supreme Court in the Privacy judgment thereby extending the right against unlawful and illegal surveillance, search and seizure to all persons, which includes persons accused of a crime as well as mere suspects. Moreover, it is pertinent to note that in Kharak Singh, there were specific regulations authorizing the police to keep surveillance under the U.P. Police Regulations.

As discussed earlier, the only deterrent to the Right to Privacy is available if there is a procedure established by law. In the cases where a public servant is arrested for an offence under the Act based on his voice recording, the recording is not made by the authorized official under the Act or by any official authorized by the State Government. It is the complainant who, based on an oral suggestion by the police collects evidence on behalf of the police, which is impermissible under law.

Statutory Analysis
The Prevention of Corruption Act, 1988 contains provisions regarding Persons authorized to investigate[9]. The following ranks of police officials are authorized to investigate an offence under the Act, namely:
# Inspector of Police, under the Delhi Special Police Establishment Act
# Assistant Commissioner of Police, in the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and in any other metropolitan area notified as such under the Code of Criminal Procedure, 1973;
# Deputy Superintendent of Police or a police officer of equivalent rank, elsewhere; and
# Inspector of Police and above, if authorized by the State Government by way of a special or a general order.
It is therefore only the aforementioned persons who have the right to investigate an offence of corruption. Nowhere does the Act provide the power to the authorized persons to obtain evidence by delegating his investigatory powers without an explicit legal order to a third person, and neither does the Act provide any basis for illegally recording the person suspected of an offence.

The Code of Criminal Procedure, 1973 (CRPC) states that the Public must aid the Magistrate and Police[10]. This aid is however, limited to:
# taking or preventing the escape of any other person whom such Magistrate or police officer is authorized to arrest; or
# in the prevention or suppression of a breach of the peace; or
# in the prevention of any injury attempted to be committed to any railway, canal, telegraph or public property.

This aid cannot by any stretch of imagination extend to the recording of evidence by the Public without the knowledge of the public servant.

Notwithstanding the above, it is a settled principle in law that a special law will prevail over the general law as held by the Supreme Court in Sharat Babu Digumarti -v/s-. Govt. (NCT of Delhi)[11]. Since the Prevention of Corruption Act, 1988 is the special enactment, only the persons authorized under the Act, 1988 can perform the functions necessary thereunder and the authorized personnel as defined under the CRPC will have no power.

Further, although the Indian Evidence Act, 1872 permits the admissibility of electronic records i.e., audio/visual recordings as evidence[12], there is no mention of the consequences of illegally obtaining such electronic records.

The Information Technology Act, 2000 contains a provision under Section 11 which states that an electronic record is attributable to the originator of the record. The term originator is defined to mean person who sends, generates, stores or transmits any electronic message or causes any electronic message to be sent, generated, stored or transmitted to any other person. Going by this definition, since the Complainant of the offence makes the electronic record without any legal authorization, he is the originator of the voice recording and under Section 11, the recording is attributable only to him. Hence, the police are not empowered to act based on an otherwise illegal recording which is attributable to the Complainant.

The Indian Telegraph Act, 1885 contains a provision which states that on the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorised in this behalf by the Central Government or a State Government may, if it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, shall be intercepted or disclosed.[13] The differentiating factor here is that the interception is provided for by a statute containing information on under what circumstances and who can carry out such interception. There are also Rules[14] framed under this Act stating the procedure for carrying out the interception and for prevention of unlawful interception.

In view of the above statutes and the relevant provisions contained therein, we can safely say that there is no procedure established under the law which permits a violation of the Right to Privacy of public servants by recording their conversation without consent. The conducting of such activities under the watch of the police officials is nothing but the law being misread and misinterpretedto achieve results in a manner which is alien to law.

A way forward!
It is only fair to mention that there are some precedents of the Supreme Court i.e., R.M. Malkani v. State of Maharashtra[15], wherein it was held that a tape recording of a relevant conversation is a relevant fact and is admissible as res gestae under S.7 of the Evidence Act, even if it is recorded illegally. The Supreme Court has also rejected the contention that obtaining evidence illegally by using tape recordings or photographs offend Articles 20(3) and 21 of the Constitution of India in Yusufalli Esmailn Nagree v. The State of Maharashtra.[16]However, it should be noted that these decisions were rendered more than four decades ago. The advent of the Privacy Judgement, the GDPR and with it the Personal Data Protection Bill, 2018, has paved way for the recognition of new legal concepts of Privacy and Consent.

The provisions of the Personal Data Protection Bill, 2018, are framed in such a way the consent of the individual is an essential pre-requisite for processing of personal as well as sensitive personal information. Section 8 of the proposed Bill seeks to issue a notice to the subject whose information is processed. Even where the processing of personal or sensitive personal information is necessary for the prevention of any unlawful activity, the processing can take place only after it is ascertained if the consent of the subject can be obtained and only after having safeguards in place to protect the rights of the subject thereof.

Furthermore, it may also be relevant to state that in jurisdictions like the United States of America, courts do not admit evidence that is illegally obtained on the ground that it violates the fourth amendment i.e., the Right to privacy. This is known as the principle of Exclusionary Rule. The Supreme Court, in the Puttaswamy judgement quoted one such case law of Katz -V/s- United States[17] 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 the 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.[18]

Based on the above principle the Law Commission of India, in its 94th Report has suggested to giving discretionary powers to the Court to exclude illegally obtained evidence. It was the opinion of the Law Commission that there could be cases were the breach is so blatant and shocking that admitting such evidence will cause disrepute to administration of justice.To quote from the report, it was said that – there is need for conferring on the court a discretion to exclude evidence obtained illegally or improperly if, in the circumstances of the case, the admission of such evidence would bring the administration of justice into disrepute .[19]

Conclusion
Since privacy has now been recognized as a fundamental right, there is a dire need to revisit the actions taken by the State Authorities and the decisions rendered by the Court which are not in keeping with the existing laws, keeping privacy as a major focus. As regards the issue of corruption and privacy is concerned, it is no doubt a grave offence which is punishable by the law, however the law also requires the State Authority and the Courts to uphold the privacy of every person including an accused (which is evident by the overruling of Kharak Singh) or a suspect, and in the event of any deviation in its applicability, to follow the procedure established by the law. Recording conversations by a common man with no authority whatsoever and without the consent of the other party clearly portrays the efforts of the police to fast track cases without adhering to the letter of the law. In today’s day and age, with the recognition of new founded principles pertaining to privacy and consent in our legal system, it is the Courts which must take judicial notice of these issues and implore the State authorities violating these rights to exercise restraint and abide by the Rule of Law. The privacy judgement rendered by the Supreme Court has opened a plethora of opportunities for interpretation which should be the beginning to a streamlined functioning of our executive bodies.

End-Notes
[1]2017 (10) SCC 1
[2]1950 SCR 1077
[3]1962 (1) SCR 332
[4]1955 AIR 367
[5] AIR 1950 SC 27
[6] 1978 (1) SCC 248
[7]supra 3
[8]supra 2
[9]Section 17, Prevention of Corruption Act, 1988
[10]Section 37, Code of Criminal Procedure, 1973
[11]2017 (2) SCC 18
[12]Section 65A and 65B of the Indian Evidence Act, 1872
[13]Section 5, Indian Telegraph Act, 1885
[14]Rule 419A, Indian Telegraph Rules, 1951
[15](1973) 1) SCC 471.
[16]AIR 1968 SC 147
[17] 389 US 347 (1967)
[18] Justice K.S. Puttaswamy (Retd.) &Anr -V/s- Union of India, Part K, Page 145
[19]http://lawcommissionofindia.nic.in/51-100/Report94.pdf

Written by Swathy Suresh, Lawyer, Bangalore