Analysis | Supreme Court ruling on mandatory voice sample silences the right to privacy

[dropcap]T[/dropcap]HE Supreme Court, earlier this month, declared that a Magistrate has the power to direct a person to compulsorily give voice samples during the course of investigation (Ritesh Sinha v. State of Uttar Pradesh and Anr., Ritesh Sinha II).

It can be argued that voice print identification is a useful tool in investigation, especially in cases where evidence includes tapped phone conversations. But the approach taken by the top court to arrive at this conclusion points to two troubling trends – first, the manner in which the Supreme Court assumes law making powers and second, the summary dismissal of privacy claims on grounds of public interest.

Introduction

In 2012, a two-judge bench of the Supreme Court in Ritesh Sinha I placed two issues before this larger three-judge bench; (i) whether obtaining voice samples from an accused person without consent would be violative of the right against self-incrimination protected under Article 20 (3) of the Constitution; and (ii) even assuming it was not violative of this right, whether it could be mandated in the absence of a legislative provision in this regard. 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 taking of voice samples.

On the first question, the Supreme Court held that obtaining voice samples without consent would not be violative of the right against self-incrimination, due to the decision in Kathi Kalu Oghad(1961), rendered by an eleven-judge bench of the Supreme Court in the context of handwriting samples. This judgment concluded that Article 20 (3) only protected the accused against being forced to convey information based on her 'personal knowledge', and did not protect against giving 'material evidence', as such material evidence only lent itself to comparison, as opposed to having the tendency to directly incriminate the accused.

With respect to the second question, the court found that there was no provision allowing 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.

Judicial law making

Ideally, the judgment ought to have ended here since in the absence of a law, no authority could exercise this power. Yet, the court decided to use principles of 'statutory interpretation' to bring in an entirely new law, on account of having the power to do 'temporary patchwork of filling up to make the Statute effective and workable'.

Clearly, the court did not interpret an existing provision of the CrPC or the Identification of Prisoners Act, 1920 to hold that such provision included the power to take voice samples, as had been done by one of the judges in Ritesh Sinha I. If this bench of the Supreme Court had followed such an approach, the 'principles of statutory interpretation' could arguably have been invoked.

Neither did the court explain how the CrPC was rendered 'unworkable' in the absence of this provision. So far, investigation agencies have used other methods to identify voice samples, such as calling witnesses that are familiar with the voice of the accused to identify it, which avoided taking voice samples from the accused.

Hence, one wonders how the principles of statutory interpretation were applicable at all in the present case – especially since in the conclusion, the court declared that it has exercised its extraordinary power to declare law under Article 142 of the Constitution to confer this power on Magistrates.

It leads us into the larger problem of the Supreme Court creating a new law, despite acknowledging that the legislature has expressly chosen to not enact such a provision. While Supreme Court has taken on the mantle to create laws several times before, an important differentiation must be drawn between introducing law to protect the fundamental rights of citizens versus creating laws that restrict the fundamental rights of its citizens. In the first scenario, the court is acting in furtherance of its duty to protect fundamental rights under Article 32 of the Constitution, while in the other, it is compromising on the same.

Infringement of the right to privacy

The Supreme Court noted the argument that the compulsion to give voice samples should not come from the court, since it involved infringement of fundamental rights. However, the argument was dismissed stating that such a law would not fall foul of the right against self-incrimination. The privacy implications of such a requirement were dismissed at the end of the judgment, almost as an after-thought, on the ground that this issue was not raised before the court.

However, once the court decided to introduce a law using Article 142, it was bound to analyze whether such a law would be inconsistent with any other fundamental rights as well – in this case, the right to privacy, irrespective of whether it was an issue before the court.

The Supreme Court had drawn the link between the right to privacy and Article 20 (3) of the Constitution in the landmark ruling of Selviv. State of Karnataka(2010), which outlawed narco-analysis and the infamous 'lie detector test'. The Court had held:

While giving a voice sample may not amount to giving a 'statement', the court's ruling on autonomy and private choice relating to speaking or being silent as an element of 'right to privacy' assume significance in light of the nine-judge bench judgment on the right to privacy in 2017 (Puttaswamy). In Puttaswamy, the Supreme Court located 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 autonomy, is the concept of bodily privacy. The majority opinion in Puttaswamy held that privacy enables the individual to retain autonomy of the body and mind. Previous judgments of the Supreme Court in Suchita Srivastava (2009) and NALSA (2014) upheld the right to make decisions with respect to one's own body as an important facet of the right to privacy. Hence, the coercion involved in taking voice samples would by itself infringe on the right of autonomy and of bodily privacy.

Since voice samples amount to identity or biometric information, informational privacy concerns would also arise over collection of such samples by the State. In Puttaswamy, all nine judges unequivocally 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 retain 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) ought to have been considered by the court.

If the court had entered this analysis and found that the right to privacy would be restricted by the requirement to give voice samples without consent, it ought to have stopped short of exercising its power under Article 142. It is settled law that the Supreme Court cannot use its power under Article 142 to pass an order inconsistent with fundamental rights.

'Compelling Public Interest'

Yet, in Ritesh Sinha II the court went onto observe that in any event, the right to privacy is not absolute and must "bow down to compelling public interest". By dismissing the privacy concerns with this one statement, the Supreme Court has, in effect, declared that a law of its own creation can be subject to lesser scrutiny than a law passed by the executive or legislature.

Any law infringing on the right to privacy must show that the infringement is proportionate to the object sought to be achieved. The State would have to show the efficacy and need of voice print 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 persons 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. Hence, mere reference to 'compelling public interest' could not validate a law that infringes the right to privacy.

Conclusion

After the Puttaswamy judgment, criminal investigative techniques ought to be tested against the stricter constitutional scrutiny of the right to privacy, due to their tendency to infringe upon the privacy of the person subject to investigation. Yet, with Ritesh Sinha II the Supreme Court has shown that privacy interests can be summarily dismissed. The judgment in Ritesh Sinha II signals the concern that arose after the Aadhaar judgment: That the Supreme Court has failed to give effect to the progressive principles enshrined in Puttaswamy, on the basis of an all-encompassing notion of 'public interest'.

More worryingly, the Supreme Court has introduced new provisions in criminal procedure, a matter solely reserved for the legislature, while compromising on its role as the protector of the fundamental rights.

Disclaimer: The views expressed by the author are personal.