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Right to Fair Trial v/s Right to Privacy of Victims

The Right to Fair Trial is to accused a denounced a chance to safeguard him. A significant element of this chance is to illuminate the accused regarding the allegations against him ahead of time. This is finished by providing him duplicates of all the evidence against him that are being depended on by the prosecution.

Articles 10 of the Universal Declaration of Human Rights (UDHR) declares that everyone entitle in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his legal rights and obligation and of any criminal charges against him. Articles 14(1) of the International Covenants on Civil and Political Rights (ICCPR) provides that all people shall be equal before the court and tribunals. A right to a fair trial includes the right for legal assistance. This is part of the right to life enshrined under Article 21 of the Constitution of India.[1]

Being the essential part of the Right to Life[2], the Right to Fair Trial[3] has been arranged under Article 21 of the Constitution of India, 1950, and further itemized in the Code of Criminal Procedure, 1973 (Cr.P.C.). Section 207 of the Cr.P.C. discusses the supply of "documents" to the accused to empower him to set up his defense. It mandates that the blamed be given duplicates to the police report, the FIR recorded under Section 154 Cr.P.C., confession statements and so forth.

The supply of the documents to the accused is mandatory.[4]
Section 3 of the Indian Evidence Act, 1872 expounds that a "document" signifies �any matter expressed or described upon any substance by means for letters, figures or marks, or by more than one of those methods, intended to be utilized, or which might be utilized, for the purpose of recording that matter�[5].

The Evidence Act defines "evidence" as, �all documents including electronic records produced for the inspection of the court.�[6] Taking this further, the Information Technology Act, 2000 in Section 2(t) defines "electronic record" as �any data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche.� Thusly, a conjoint perusing of the Evidence Act and the IT Act prompts the conclusion that electronic records, for example, videos on a pen drive or a mobile phone are likewise "documents" and are along these lines applicable as evidence.

There might be a circumstance, when the actual record is voluminous to such an extent that it is impossible to share the same with the accused. To manage such a case, the Second proviso to Section 207 Cr.P.C. engages the magistrate to retain the supply of voluminous evidence to the accused and just permit inspection thereof.

Nonetheless, this is the only systematized ground on which reports may not be provided to the accused. Taking all things together, it is mandatory to supply documents depended on by the prosecution to the accused to give him a chance for fair trial. Practically speaking, numerous courts presently direct investigating agencies to make an electronic document of voluminous records and supply that to the accused.

A few courts even direct that such records be watermarked and be in �read-only' format to forestall their undesirable circulation and abuse. In regular cases, the accused has a right to a copy of the sound/video records being depended on by the prosecution. Such records cannot be dependent upon the discretion of the magistrate since they are essentially not 'voluminous'.

In a scenario, where such records contain the identity of the women victim, such as the sexual offences. As of late, in P. Gopalkrishnan @ Dileep v State of Kerala & Anr.[7], the Supreme Court of India questioned � what ought to be the harmony between the right of an accused to fair trial and the right of the victim to privacy and dignity Furthermore, how it ought to be accomplished? In the present case, an accusation of sexually assaulting and video-graphing a lady was made against the accused. The supply of the memory card/pen drive to the accused under Section 207 for the Cr.P.C. was in issue.

The accused was seeking for a duplicate of the video recording on the ground that there was more than one voice in the said video. Subsequently, he needed to get it inspected independently. The Court held that sections 173 and 207 of Cr.P.C. are intended to ensure that accused gets a fair trial. It is not that fair trial cannot take place without giving the secret documents recovered from the accused back in the hands of accused during trial. It was held that, ultimately, the guilt of the accused has to be decided at the end of the trial and not before trial.[8]

The application petitioned for a duplicate of the said video was dismissed by the magisterial court on the ground that it "would encroach upon the regard, respectability, modesty, pride and notoriety of the victim and furthermore against the public interest." However, the magisterial court permitted the accused to look at the said video in the court premises. The learned Single Judge of the High Court of Kerala likewise refused the same, in appeal.

It is fascinating to take note of that in the this case, the actual prosecution neglected to maintain the privacy and dignity of the victim by naming her in the FIR, in her assertions under Section 161 and 164 Cr.P.C., just as in the chargesheet/police report documented before the magistrate. The Supreme Court coordinated that providing a duplicate of the video to the appealing party might be inclined to misuse and that safeguards such as watermarks shall not suffice, as "with advancement of technology", watermarks might be taken out and duplicates may be circulated. Partly allowing the appeal, the Apex Court allowed the accused to inspect the video in the court premises and to take the expert opinion of an independent agency in such manner.[9]

Despite the fact that the standard is to supply a duplicate of all evidence depended on by the prosecution to the accused, the Apex Court cut out an exemption and did not permit the accused to get a duplicate for the video in the P. Gopalakrishnan case[10], inferable from the affectability of the offense. Such special cases must be directed on based on the facts and circumstances of every individual case.

As an exception, the prosecution may decline the supply of on the ground of national security even at the risk of possible loosing of the case. if the State chooses not to give copies of those documents for the reason of the security of nation, no fault can be found with the State, and the court cannot force the prosecution to hand over the secret documents to accused at the cost of security of Nation.[11]

Though accused is entitled for his rights, it is not absolute and even outside section 207 Cr.P.C, 1973 there can be restrictions regarding the right under section 207 Cr.P.C., 1973 It was contended that, if the above statutory provision infringes the right of privacy of the victim involved, fundamental right will supersede the statutory right of the accused. In Sherin V. John vs. State of Kerala,[12] this Court had held that, when there is a conflict between Fundamental Rights of a person and statutory rights of another person, Fundamental Rights will prevail.

It is basic that guidelines or legislative amendments be made to direct circumstances in which such electronic record might be provided to the accused. For instance, as in the previously mentioned case, an accused might be permitted to inspect the evidence in court with the assistance of a forensic expert. In such cases, it is imperative to adjust the right of an accused to a fair trial with the right to dignity and privacy of a victim, and there is a requirement for guidelines on the most proficient method to approach it.

The UN Human Rights Council and the UN General Assembly have expressed concern and appreciated that �violations and abuses of the right to privacy in the digital age may affect all individuals, with particular effects on women, as well as children, and persons in vulnerable situations, or marginalized groups�[13]. They have urged upon the states to act towards prevention of violation of the right to privacy against all individuals, particularly women, children and the vulnerable sections of the society, and devise suitable remedies for addressing the issue.

In this digital era, when the invasion of privacy is very easy, we, therefore, need to realize that enactment of suitable privacy laws with a greater affirmative focus on women and other weaker sections of the society, and their rigorous implementation, is the order of the day.

  1. Maruti Nivrutti Navale v. State of Maharashtra, (2012) 9 SCC 235 (India
  2. Olga Tellis & ors. v. Bombay Municipal Corporation & ors., 1985 SCC (3) 545 (India).
  3. Hussainara Khatoon & Ors. vs. Home Secretary, State of Bihar, 1979 SCR (3) 532 (India).
  4. Sadhvi Ritumbhara v. .State of M.P., (1997) KHC 2835 (India).
  5. Section 3 of Indian Evidence Act, 1872 (Act No.1 of 1872) (India).
  6. Ibid.
  7. P. Gopalkrishnan @ Dileep v. State of Kerala & Anr., (2020) 9 SCC 161 (India
  8. CDR (Retd) Jarnail Singh Kalra Jasvinder Kalra v. C.B.I., 2011 Cri.L.J. 1416 (India).
  9. S.J. Chowdhary v. The State, 1984 Crl.L.J. 854 (India).
  10. Supra note 7.
  11. Supra Note 8.
  12. Sherin V. John v. State of Kerala, (2018) 3 KHC 725 (India).
  13. United Nations Human Rights Office of High Commissioner, Privacy and technology from a gender perspective: report, The Special Rapporteur on the right to Privacy, A/HRC/40/63 (27 February 2019).

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