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, came in as a sigh of
relief to the hopeful liberalists in our country, paving way for a new age of
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 and
Kharak Singh v State of Uttar
Pradeshwas 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
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 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
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 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. 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
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, 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
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, 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.
The Prevention of Corruption Act, 1988 contains provisions regarding Persons
authorized to investigate. 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,
# 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. 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). 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, 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. 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 framed under this Act stating the
procedure for carrying out the interception and for prevention of unlawful
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, 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.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.
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 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.
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 .
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.
2017 (10) SCC 1
1950 SCR 1077
1962 (1) SCR 332
1955 AIR 367
 AIR 1950 SC 27
 1978 (1) SCC 248
Section 17, Prevention of Corruption Act, 1988
Section 37, Code of Criminal Procedure, 1973
2017 (2) SCC 18
Section 65A and 65B of the Indian Evidence Act, 1872
Section 5, Indian Telegraph Act, 1885
Rule 419A, Indian Telegraph Rules, 1951
(1973) 1) SCC 471.
AIR 1968 SC 147
 389 US 347 (1967)
 Justice K.S. Puttaswamy (Retd.) &Anr -V/s- Union of India, Part K, Page 145
Written by Swathy Suresh, Lawyer, Bangalore