[This is a guest post by Karthik Rai.]
It has been argued that the transformative character of the Puttaswamy judgement did not extend to governing claims to the fundamental right of privacy between private parties. To recapitulate, Puttaswamy adopted a narrow approach to privacy and did not examine horizontality (and rightly so, as this was not what the constitution bench was convened to answer). Thus, the court did not explicitly hold that an Art.21 protection in case of privacy violation would extend to violations by private parties or individuals.
However, this conclusion is not a unanimous or unambiguous one. Recently, in the case of Deepti Kapur v. Kunal Julka – a case where an argument based on the fundamental right to privacy was raised in a divorce-related proceeding between the plaintiff and the defendant – the Delhi High Court ruled that evidence cannot be inadmissible on grounds solely of breach of privacy under Article 21. The issue of horizontality serves merely as a prefatory remark to introducing this case; the more significant issue is the manner in which Puttaswamy was applied in this case, whether the horizontal application was valid or not. I argue in this piece that the interpretation of Puttaswamy in Kunal Julka was very restricted – and, at place, perhaps incorrect – and could precipitate an undesirable jurisprudence on the admissibility of evidence.
The husband filed for divorce before the Family Court under S.13(1)(a) of the Hindu Marriage Act, stating that his wife had defamed him before her friend, causing him mental agony and cruelty. As proof, he submitted, in a CD, a video-recording of her conversation with her friend, collected by the CCTV camera in that room. The statute governing this issue was Section 14 of the Family Courts Act, 1984:
14. Application of Indian Evidence Act, 1872.—A Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872 (1 of 1872). (emphasis mine)
The wife claimed that she had the right to the non-invasion of her ‘thoughts and behavioural patterns’ as part of her privacy rights, and that secretly-recorded conversation occurred in her bedroom, where her conversations should have been confidential. This, she argued, violated her fundamental right to privacy per the Puttaswamy holding (para 6). Since the evidence produced was in breach of this fundamental right, the recording would be inadmissible. While Section 14 permitted evidence notwithstanding its inadmissibility under the Evidence Act, it did not permit evidence that was not admissible “as per the Constitution”. (para 7).
Contrarily, the husband argued that the fundamental right to privacy was subject to restrictions – specifically, his right to fair trial under Article 21, lest he should be denied the opportunity of proving his claim. He also argued that Section 14 ensured admissibility regardless of its inadmissibility under the Evidence Act.
The High Court ruled in the husband’s favour. Its ruling on this point had two broad arguments, which are analysed below.
[A]. Relevance as the only test of Admissibility
The Court noted that the test for admissibility was ‘crisply’ detailed in Pooran Mal v. The Director of Inspection (Investigation), New Delhi, where it was held that since the Evidence Act referred to only relevance as the criterion of admissibility, the ‘spirit of our Constitution’ could not be invoked to exclude illegally-procured evidence. Then, the Court relied on State v. Navjot Sandhu which, while referencing RM Malkani v. State of Maharashtra, upheld the admissible-if-relevant test (paragraphs 17-20).
However, Justice Bhambani does not analyse the fact that Puttaswamy overrules each of these cases on these points, whether directly or indirectly. For instance, Pooran Mal relied on MP Sharma. As Vrinda Bhandari and Karan Lahiri argue, Puttaswamy, by upholding a fundamental right to privacy, overruled MP Sharma v. Satish Chandra which, while examining if procuring inculpatory documents violated Article 20(3) of the Constitution (which protected against self-incrimination), stated that, given the Constitution did not recognize a fundamental right to privacy, Article 20(3) could not be applied to such illegal procurement. Pooran Mal also relied on the siloed approach advocated by A. K. Gopalan v. State of Madras (para 23) which is now overruled. Therefore, Pooran Mal stands on very unstable grounds. The argument in Kunal Julka that post-Puttaswamy cases like Yashwant Sinha v. CBI too relied on Pooran Mal forthe admissible-if-relevant test (para 25), is consequently questionable.
Malkani considered the issue only of violation of a statutory provision (the Indian Telegraph Act), and did not address the issue of violation of a constitutional provision. Chandrachud J. stated that Malkani followed Kharak Singh’s reasoning, which stated that there was no fundamental right to privacy, and which was therefore overruled by Puttaswamy (para 51). Moreover, Malkani, too, adopted the siloed approach to fundamental rights which has been disregarded since RC Cooper and Maneka Gandhi, and thus liberty and privacy claims under Article 21 were not examined (something that Selvi v. the State of Karnataka [para 192]examined and upheld, in the context of the constitutionality of confession-obtaining methods like narco-analysis). Subsequently, Navjot Sandhu too fails as authority on this point, for its holding was premised on Malkani and Pooran Mal (paras 154-155).
Kunal Julka’s decision ties into a significant issue. Gautam Bhatia has argued that, since Selvi, which read Articles 20(3), 21 Sections 24-27 of the Evidence Act harmoniously to protect an accused’s mental privacy, a distinction has been created between illegally-procured and unconstitutionally-obtained evidence. Post Puttaswamy, this distinction was carried forth, as argued on this blog, by Vinit Kumar v. CBI and Ors. In Vinit Kumar, the Bombay High Court noted (in my opinion) rightly, that the interception orders passed under the Telegraph Act were violative of the testsofprivacyestablished in Puttaswamy, and therefore, the Court would be ‘breeding contempt’ by eschewing procedure, if such illegally procured evidence were to still be admitted in a trial (para 38). In fact, it noted all the cases mentioned afore and cited in Kunal Julka, and held that any privacy infringement by the State will have to meet the privacy tests Puttaswamy established, with any case suggesting otherwise not a ‘binding’ precedent on that point (para 12).
This well-founded distinction was not touched upon, unfortunately, in Kunal Julka. It only examined the Evidence Act and the Family Courts act, stating that the special law has to prevail over the general law (para 15). With the Constitution having a bearing on the admissibility of evidence, and not merely the Evidence Act, the question of ‘generalia specialibus non derogant’ rule should have never arisen.
Kunal Julka also stated that evidence adduced under Section 14 were to be excluded on privacy grounds, Section 14 would become ‘nugatory’ (para 35). However, that is a fallacious argument, and is not a legitimate justification for the admissibility of evidence under its scope. Besides, evidence collected illegally, but satisfying the Puttaswamy tests, could still be admitted under Section 14, and therefore, Section 14 would not necessarily be nugatory.
[B] Privacy subject to Fair Trial
Ruling on the husband’s claim for a fair trial right under Article 21, the Court simply stated that, since the fundamental right to privacy is not absolute, privacy considerations ‘may have to yield’ to the fundamental right to fair trial under Article 21 (para 24). It stated that, after the evidence had been made admissible, the weight (if any) to be given to evidence must be decided based on (undefined) ‘considerations of justice and fair play’ (para 36).
It is surprising how the Court, in its enthusiasm to admit the evidence, does not follow its own statement that no fundamental right is absolute. Since the right to fair trial, therefore, is also not absolute, the Court should have applied the tests of privacy established under Puttaswamy to ascertain if the privacy-violation precipitated by the evidence met the tests of legality and proportionality, instead of making a nonchalant remark that it may yield to fair trial rights. Only then should the evidence have been even made admissible. In fact, the court cited the Sahara v. SEBI case to justify the importance of fair trial against other fundamental rights, but that case tried to balance the two rights based on pre-established tests, observing that (para 25):
“…even Articles 14 and 21 are subject to the test of reasonableness after the judgement of this Court in Maneka Gandhi…(para 25)”
Theinterpretation in Kunal Julka is, in my opinion, an archetypal adherence to the crime-control model as against the due-process model that Mrinal Satish and Aparna Chandra prove still pervades jurisprudence in cases of admissibility of evidence and criminal-law jurisprudence in general. In one part of the judgement, it even holds that, howsoever the evidence is collected, fair-trial and justice mandate its admissibility (para 35). Claims that a right to fair trial had to be preferred denying it impacted the public as against a personal impact if privacy was violated (para 23), further substantiate this point. If such substantive-truth seeking jurisprudence re-develops in future cases notwithstanding Puttaswamy, without even applying its tests, it may serve as the death knell for privacy and procedural truth, especially with modern technologies like Fitbits, etc., being used in trials as evidence. In any case, the argument this piece makes, is that the reasoning in Kunal Julka is extremely tenuous, dealing a heavy blow to the transformative character of Puttaswamy. The judgement exemplifies the truism, that whether a judgement is interpreted conservatively or expansively, could determine the outcome of a range of cases not specifically anticipated by it.