This is the second part of a two-part post by Benjamin Vanlalvena, a final year law student at NALSAR University of Law. In this post, he critiques a recent judgement by the Supreme Court which allowed Magistrates to direct an accused to give voice samples during investigation, without his consent. Part 1 can be found here.
Judicial discipline and the doctrine of imminent necessity
In the previous part, I dealt with the certain privacy concerns that may arise with respect to voice sampling and how various jurisdictions have approached the same. In this part, I will be critiquing the manner in which the Supreme Court in Ritesh Sinha has imparted legislative power onto itself, is by the terming the absence of legislative authorization for voice sampling of accused persons as a procedural anomaly, and extending its power in filling such assumed voids by invoking not only the principle of ejusdem generis, but also citing the “principle of imminent necessity”.
This strangely arises since reference is made to Ram Babu Misra, where it had earlier looked into Section 73 of the Indian Evidence Act, 1872 and whether the same afforded the Magistrate the power to direct the accused to give her specimen writing even during the course of investigation. In absence of such a provision, such powers were denied. Subsequently, section 311A (vide Code of Criminal Procedure (Amendment) Act, 2005 later afforded the Magistrate the power to direct any person to submit specimen signatures or handwriting. In this regard, the Supreme Court in Sukh Ram, held that the powers provided by the Amendment were prospective and not retrospective in nature and therefore such direction was impermissible since they were not provided for.
In the present case, the Supreme Court notes that “procedure is the handmaid, not the mistress, of justice and cannot be permitted to thwart the fact-finding course in litigation”. This is prima facie problematic given the relevance of the maxim in civil matters in resolving dilemmas by by-passing procedure in the interest of justice. In criminal matters, the State holds an instrument of enquiry against the accused, with the balance of powers weighing heavily against the individual. The jurisprudential trend of privileging crime control interests and merely opposing oppression or coercion in cases which would affect the reliability of the evidence, has thus continued. It would be relevant to look at the right against self-incrimination, explored by Abhinav Sekhri in his article ‘The right against self-incrimination in India: the compelling case of Kathi Kalu Oghad’, to be one that had originally arisen as a protection against the State by placing procedural safeguards and substantive remedies.
In this case, the Court refers to Puttaswamy, to hold that the right to privacy must “bow down to compelling public interest”. However, in Puttaswamy, Justice Chandrachud had cited A K Roy vs Union of India whereby, the Constitution Bench of the Supreme Court recognised that “…[p]rocedural safeguards are the handmaids of equal justice and …, [that] the power of the government is colossal as compared with the power of an individual…”, (emphasis mine) that preventive detention finds its basis in law, and thus is permissible under the Constitution.
Indeed, Maneka’s reference to R.C. Cooper in understanding permissible restrictions of personal liberty is of assistance, noting that abrogation of the rights of individuals must fulfil the tests of reasonableness. Irrespective of whether the demand of an individual’s voice sample is a permissible violation vide the individual’s right to privacy guaranteed under the Constitution, the order itself must find a basis in law. Alas, the same cannot be said for the present matter.
As this is a policy decision, entrusted to the State, it is curious to see how Courts have time and again found justification in intruding the halls of the Legislature. The same was also recognised in the Puttaswamy judgment where deference to the wisdom of law enacting or law enforcing bodies was sought. Silence postulates a realm of privacy, wrote Justice Chandrachud. While the same is not an absolute right, it is for the Courts to protect the individual from the State’s powers, to adjudge whether the laws and actions consist of legitimate aims of the State, and not for the Courts to provide power became an arm of the State itself. The part of the Kharak Singh judgment which was upheld, had recognised the importance of the existence of a “law” to term something as either constitutional or unconstitutional, and thus termed the relevant regulation as unconstitutional.
Presently, it is the Court which has taken on such a burden to create the law encroaching on the accused’s rights. This is even after alluding to the Legislature’s possible choice to be “oblivious and despite express reminders chooses not to include voice sample”, and only provide for a few tests (though in Selvi, the Court recognised the impropriety and impracticality to look into Legislative intent given the lack of “access to all the materials which would have been considered by the Parliament”).
Curiously, in affording the Judicial Magistrate the power to order voice sampling for “the purpose of investigation into a crime”, there is ambiguity at what stage this power can be invoked, the manner in which it can be invoked, and who can invoke the same. Ordinarily, medical examinations under 53/53A/54 of the Cr PC have been read to be done at the instance of “the investigating officer or even the arrested person himself…[or] at the direction of the jurisdictional court.” We may also look at Section 53 of the Cr PC, as per which medical examination can occur only when there is sufficient material on record to justify the same, and is impermissible otherwise.
Finally, the Court has not only failed to illustrate the existence of an imminent necessity, to make such an alteration or confer such a power, it has failed to explain in what context can Courts invoke such a maxim and has not developed the same in detail. One might note, that the principle of necessity is one generally afforded to individuals in cases of private defence or in cases of emergencies, excusing individuals from acts that would ordinarily make them liable of certain crimes. Curiously, there is no mention of an affidavit from the side of the police administration, no studies have been cited. Mere legislative delay as a justification for imminent necessity in light of certain advancements does not seem sound.
In light of the same, given Navtej, NALSA, and Puttaswamy, and the failure of the Legislature to amend at least the Special Marriage Act to recognize the rights of LGBTQI individuals to marry, and be with their individual of choice, should not the same have also provided for? Can the same be taken as a justification to abrogate digital privacy rights in the world of evolving technologies, by mandating backdoors? At what stage does Legislature’s refusal also amount to Legislature’s lax? Does this apply only for social developments or technological developments? If the Legislature was in fact, aware of voice exemplars (as has been observed), and chose not to incorporate the same into the relevant sections and clauses, can the same be read as legislative delay or refusal? Whether this aspect of the judgment, invoking “imminent necessity”, will be read into to provide justification for some other transformation is yet to be seen.
Conclusion
The Court had a path available to it through Selvi and indeed Justice Desai, had charted through the same invoking precedents which permitted such a reading. However, the Court in this reference judgment seems to have (unnecessarily) gone the extra mile by mention of this principle of imminent necessity. Whereas the former is a matter of difference in opinion, the latter is a clear bypass of the Legislature’s powers at the Court’s own pleasure. We may take heed to Justice H.R. Khanna’s dissent, in the ADM Jabalpur case, that when the means don’t matter, when procedure is no longer insisted upon, the ends can only lead us to arbitrariness, a place devoid of personal liberty.
I conclude by noting Lord Camden’s dictum in Entick vs Carrington (which we would now find through our Article 21 protection: “No person shall be deprived of his life or personal liberty except according to procedure established by law” (emphasis mine) (also read into the right against self-incrimination through Selvi):
If it is law, it will be found in our books. If it is not to be found there, it is not law.