In a judgement[1] (“Ritesh Sinha Judgement”), a three judge bench of the Supreme Court of India observed that the fundamental right to privacy is not absolute and is limited by certain factors instead. The issue raised before the bench was whether a person can be compelled to submit his/her voice samples for the purposes of identification in an ongoing criminal investigation. The appeal challenged an order in which a chief judicial magistrate had summoned the appellant for recording his voice sample. The voice sample was to be matched with conversations recorded on a mobile phone seized from the co-accused.
The courts in India have on various occasions held that the fundamental rights as enshrined in our constitution are not absolute.[2] Similarly, the Supreme Court in Justice K.S. Puttaswamy vs. Union of India (“Puttaswamy Judgement”) held that the fundamental right to privacy is also not absolute.[3] This is among the first cases to limit the application of the right to privacy since it has been recognized as a fundamental right.
In the Ritesh Sinha Judgement, the Supreme Court held that the fundamental right to privacy “must bow down to compelling public interest”[4]. Since the issue of privacy was not argued upon in front of the bench, it refrained from commenting on what these compelling public interests are or from laying down a test to determine such cases. At this stage, the judgement’s significance lies in the fact that a person may be ordered to give his/her voice sample by a judicial magistrate for the purposes of a criminal investigation.[5]
The judgement has been received with mixed responses. A legal news website lauded the judgement and found it to be “a breakthrough in criminal investigative process”[6]. A Meerut based advocate agreed with the findings of the judgement. Another Delhi based lawyer opposed the judgement and said that the procedure adopted by the court to limit the scope of the fundamental right was incorrect.
Given the lack of clarity on this issue, it is difficult to comment on the kind of compelling circumstances that will limit the scope of the right to privacy or how the courts interpret the application of this right. The Puttaswamy Judgement laid down the foundation for the right to privacy as a fundamental right in India and also identified that it is not absolute, similar to other fundamental rights. However, there is a need for more judgements similar to the Ritesh Sinha Judgement to elaborate on how the right to privacy will operate on a practical, case-by-case basis.
This post is authored by Rishwin Chandra Jethi, Associate, with inputs from Tuhina Joshi, Associate at Ikigai Law.
References –
[1] Ritesh Sinha vs. State of Uttar Pradesh, Criminal Appeal No. 2003 of 2012
[2] See paras 1303 and 1470 of Kesavananda Bharti vs. State of Kerala, AIR 1973 SC 1461
[3] See para 87 of Justice K.S. Puttaswamy vs. Union of India, Writ Petition (Civil) No. 494 of 2012
[4] See para 24 of the Ritesh Sinha Judgement
[5] See para 25 of the Ritesh Sinha Judgement
[6] See Voice Sample can be obtained against will for Investigation: SC, para 6, available here http://www.indialegallive.com/constitutional-law-news/supreme-court-news/voice-sample-can-obtained-will-investigation-sc-70153
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