The decision laid down in Ritesh Sinha vs State of UP [i], which declared that a Magistrate has the power to direct a person to compulsorily give voice samples during the course of investigation needs a recheck as the Honourable Supreme Court of India cannot invoke Article 142 of the Constitution of India to infringe fundamental rights. Supreme Court has maintained its supremacy by reiterating that the extraordinary power under Article 142 is not available to the High Courts or other subordinate courts.

Supreme Court has various times abused its powers, When we go through the judgment on the ban on the sale of liquor near national and state highways, [iv] we observe that the said judgment has affected many hotels, bars, restaurants and liquor shops which resulted in the unemployment of lakhs of people. Also, in the coal block case [v] without hearing allottees, the apex court imposed a huge fine on the owner/allottees of coal blocks. It presents that, while giving “complete justice” the Apex court neglected the fundamental rights of people who were affected by these actions.

A similar thing happened in this case as well. It is true that Article 142 has been invoked for the purpose of doing complete justice at large scale to the different section of the population. But, the judgments passed by the Apex Court have created a lot of confusion and there is no clarity on invoking Article 142 and makes sure that it would be a “total and complete justice” for the society without infringing the rights of citizens.

In 2005, the Code of Criminal Procedure (CrPC) was specifically amended to allow for handwriting and bodily samples to be taken by force, if necessary, from an accused person. Interestingly, the amendment did not cover the taking of voice samples. The court knew that there was no provision that allows a Magistrate or investigation agency to direct an accused person to give her voice samples, despite a recommendation made by the Law Commission in this regard and the subsequent amendments to the CrPC for handwriting and bodily samples. It drives us into the bigger issue of the Supreme Court creating a new law, regardless of recognizing that the lawmaking body has explicitly decided to not authorize such a provision.

While Supreme Court has accepted the job to make laws a few times previously, a significant separation must be drawn between acquainting a law with ensure the fundamental rights of citizens as opposed to making laws that confine the fundamental rights of its citizens. In the first scenario, the court is acting in the promotion of its duty to protect fundamental rights under Article 32 of the Constitution, while in the other, it is compromising on the same.

The time has arrived for the Supreme Court to introspect on whether the use of Article 142 of the Constitution as an independent source of power should be regulated by rigid standard procedure so that in the words of Justice Benjamin Cardozo, that the judge is not a knight- errant roaming at will in pursuit of his own ideal.

Order To Test Voice Samples Is An Infringement Of Right To Privacy And Right Against Self Incrimination

The decision laid down in Ritesh Sinha vs the State of UP, which declared that a Magistrate has the power to direct a person to compulsorily give voice samples during the course of investigation needs a recheck as it infringes fundamental rights, especially, right to privacy. [vi] (Ritesh Sinha v. State of Uttar Pradesh and Anr., Ritesh Sinha II). The Court overlooked the precedent set by a Constitution Bench in Prem Chand Garg [AIR 1963 SC 996],[vii] where it was held that Article 142 cannot be used to pass any orders inconsistent with fundamental rights. But the Ritesh Sinha judgment did not have any mention of the Prem Chand case.

The Order Infringes Right Against Self- Incrimination

In India, the right against self-incrimination is incorporated in clause (3) of Art. 20 and after Maneka Gandhi's case[viii], Art. 21 requires a just, fair, and equitable procedure to be followed in criminal cases. Article 20(3) of the Constitution of India deals with self-incrimination.“ No person accused of any offense shall be compelled to be a witness against himself.”

In Kathi Kalu Oghad Case [ix], it was held that it is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and law courts with legitimate powers to bring offenders to justice.

Later on, Article 11.1 of the Universal Declaration of Human Rights, 1948, and Article 14(3)(g) of the International Convention on Civil and Political Rights, 1966 laid down the principles of presumption of innocence and against self-incrimination respectively.

The Order Infringes Right To Privacy

It is noteworthy that the Supreme Court in the landmark ruling of Selvi v. State of Karnataka (2010), [x] which prohibited narco-analysis and the ill-famed lie detector test'. The Court had held that We must recognize the significance of personal autonomy in aspects such as the choice between remaining silent and speaking. A person's decision to make a statement is the product of his private choice and there should be no opportunity for any other individual to interfere with such autonomy, especially in situations where the person faces criminal charges or penalties. Therefore, it was the considered opinion of the court that subjecting a person to the negative techniques in a compulsory condition violates the recommended boundaries of privacy. The same is true for taking voice samples as well.

While giving a voice sample may not be equal to giving a statement', the court's ruling on liberty and private choice relating to speaking or being silent as an essential feature of right to privacy' assume significance in light of the nine-judge bench judgment on the right to privacy in 2017 (Puttaswamy). [xi] In Puttaswamy, the Supreme Court based the right to privacy inter alia in the right to autonomy and the right to make intimate decisions about oneself. Closely linked to the idea of dignity and liberty, is the concept of bodily privacy.

The majority opinion in Puttaswamy held that privacy enables the individual to retain the autonomy of the body and mind. Previous judgments of the Supreme Court in Suchita Srivastava (2009) [xii] and NALSA (2014) [xiii] upheld the right to make decisions concerning one's own body as an important angle of the right to privacy. Hence, the intimidation involved in taking voice samples would by itself infringe on the right of liberty and of bodily privacy. Since voice samples amount to the identity or biometric information, informational privacy concerns would also arise over the collection of such samples by the State.

In Puttaswamy, all nine judges unquestionably upheld the right to control the collection, use, storage, and dissemination of personal information as an integral aspect of the right to privacy. Hence, questions on how long the State could possess such voice samples, whether they could share it with other law enforcement agencies, whether the person concerned has the right to demand destruction of the record after acquittal in the case (as in the case of Section 7 of the Identification of Prisoners Act)are very subjective and confusing.

In Ritesh Sinha II the court went onto observe that in any case, the right to privacy is not absolute and must “bow down to compelling public interest”. By dismissing the privacy concerns with this one explanation, the Supreme Court has, in actuality, pronounced that a law of its own creation can be subject to lesser scrutiny than a law passed by the executive or legislature.[xiv] Any law infringing on the right to privacy must show that the infringement is proportionate to the object sought to be accomplished.

The State would need to show the adequacy and need of voice identification, the existence of procedural safeguards to check against abuse, and that the law is narrowly tailored to ensure the right is infringed to the least extent possible. For example, while handwriting samples, bodily samples, and measurements can only be taken of the ones who have been arrested at some point in connection with the investigation, the Supreme Court's law does not specify which persons could be subject to this requirement. Henceforth, the minor reference to 'compelling public interest' couldn't approve a law that encroaches the right to privacy.

Conclusion:
After the Aadhar judgment [xvi], criminal investigative techniques ought to be tested against the stricter constitutional scrutiny of the right to privacy because of their inclination to encroach upon the privacy of the accused subject to investigation. The judgment in Ritesh Sinha II flags the worry that emerged after the Aadhaar judgment: That the Supreme Court has neglected to offer impact to the dynamic standards revered in Puttaswamy, based on an all-encompassing notion of public interest'. All the more worryingly, the Supreme Court has presented new provisions in criminal procedure, an issue exclusively saved for the legislature, while compromising on its job of protecting the infringement of fundamental rights.

It is rightly said by Attorney General K K Venugopal that the apex court had “garnered to itself vast powers, which no one apex court in the world has ever exercised” and that its interpretation of Article 142 of the Constitution, in a manner, conveyed that it was “above the law” [xvii] and “Article 142 merely permitted the Court to pass such orders or decree as to do complete and required justice in any cause or matter pending before the court, But the Article was treated as a Kamadhenu from which endless powers flowed to the Supreme Court of the country.” [xviii]

The scope of Article 142 is so wide and over the years people have become skeptical of the its application, as it created uncertainty of when and how it may be applied to deprive rights of individuals. And therefore, the decision laid down in Ritesh Sinha vs State of UP [xix], which declared that a Magistrate has the power to direct a person to compulsorily give voice samples during the course of investigation needs a recheck.

End-Notes:

1. Ritesh Sinha v. State of Uttar Pradesh and Anr., Ritesh Sinha II
2. The Constitution of India
3. Anil Kumar Jain v. Maya Jain ((2009) 10 SCC415
4. State of Tamil Nadu Rep. By Its Secretary Home, Prohibition & Excise Dept. & Ors v K.Balu, (2017) 2 SCC 281 "16.
5. Manohar Lal Sharma Vs. Narendra Damodardas Modi & Ors. [Writ Petition Criminal No.225 of 2018] [W.P. (C) No.1205/2018] [W.P. (CRL) No.297/2018] [W.P. (CRL) No.298/2018]
6. Ritesh Sinha v. State of Uttar Pradesh and Anr., Ritesh Sinha II [(2013) 2 SCC 357]
7. Prem Chand Garg vs Excise Commissioner, U. P. AIR 1963 SC 996.
8. Maneka Gandhi v. Union of India 1978 AIR 597, 1978 SCR (2) 621
9. State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808 : ( 1962) 3 SCR 10.
10. K.S. Puttaswamy v. Union of India., (2017) 10 S.C.C. 1.
11. Suchita Srivastava & Anr. v. Chandigarh Administration (2009) 9 SCC 1; 2009 (11) SCALE 813.
12. National Legal Services Authority v Union of India and Others (Writ Petition No. 400 of 2012).
13. https://theleaflet.in/analysis-supreme-court-ruling-on-mandatory-voice-sample-silences-the-right-to-privacy/
14. The Code Of Criminal Procedure, 1973.
15. K.S. Puttaswamy v. Union of India., (2017) 10 S.C.C. 1.
16. Indian Young Lawyers Association & Ors. Vs. State of Kerala & Ors. [Writ Petition (Civil) No. 373 of 2006]
17. https://indianexpress.com/article/india/sc-has-taken-more-powers-than-any-apex-court-hope-constitutional-morality-dies-with-birth-a-g-k-k-venugopal-5484988/
18. Ritesh Sinha v. State of Uttar Pradesh and Anr., Ritesh Sinha II