Collection of Voice samples and the right to privacy: Obedience or violation
On the global dimension, international conventions such as the United Nations Declaration of Human Rights, the International Covenant on Civil and Political Rights, and numerous other treaties and conventions acknowledge the right to privacy as a fundamental human right. This right exists alongside human dignity, security, and reserve. Article 21 of the Indian Constitution protects the right to privacy, which is a requirement of the right to life and personal liberty. In our constitutional framework, the scope of this article is viewed as multi-dimensional. The case of K.S Puttaswamy v. Union of India, in which the supreme court ruled that the right to privacy is a basic right that will not lose its significance/status among the Golden Trinity of Article 14 (Right to Equality), Article 19 (Right to Freedom) and Article 21 (Right to Life and Personal Liberty), marked a crucial turning point in this right's history. Because the right to privacy is safeguarded by Article 21, it is critical that it be given the highest priority possible, and the government must avoid intruding on these rights as much as possible in times of need. The bottom line is that infringing on a person's right to privacy should be avoided unless it is the only option for solving an issue.
A voiceprint is a crucial forensic tool for identifying a speaker, and it is mostly utilised for corroboration in order to determine culpability. A voice sample for forensic research requires the availability of both the sample in question and the reference sample, which is the sample against which the other sample in the investigation is compared in order to draw a conclusion. The 87th Report of the Law Commission of India in 1980 describes a voice print as a “visual recording of voice”. Voiceprints resemble fingerprints, in that each person has a distinctive voice with characteristic features dictated by vocal cavities and articulates. Sometimes in criminal cases, the sample in question is obtained surreptitiously either by the state or under certain circumstances by a private person, which would lead to the violation of privacy. The collection of voice samples, which is also for the purpose of matching voice samples, has sparked a controversy about the fundamental right to self-incrimination. Self-incrimination is defined as conveying information based on the accused person's personal knowledge and does not include merely the mechanical process of producing documents in Court that may shed light on any of the issues in dispute but do not contain any statement of the accused based on his personal knowledge.
Section 53 of the Code of Criminal Procedure, 1973
The present section provides for an examination of the accused by a medical practitioner at the request of a police officer. It was incorporated in the Code, with the sole intention of facilitating effective investigation according to Anil Anantrao Lokhande v. the State of Maharashtra. It has been made for the medical examination of an arrested person at the instance of a police officer of a proper rank and such an examination necessarily forms part of the investigation as defined in section 2 (h) of the Code. An 11-bench judge of the Supreme Court in the case of the State of Bombay vs. Kathi Kalu Oghad & Others where it was held that such prohibition against self-incrimination merely extends to the making of oral or written statements; but not in the larger sense of the expression so as to include giving of thumb impression, palm impression or specimen writings for purpose of identification. The section permits the taking of samples of blood, hair, nails, etc., from the accused. Furthermore, the apex court laid down that 'To be a witness is not equivalent to 'furnishing evidence' in its widest significance and that mere examination of the person and taking of blood sample in itself is not an incriminating circumstance in Jamshed v. the State of U.P.
Ritesh Sinha v. State of U.P: A brief analysis
In the present case, the Hon'ble Supreme Court considered the permissibility of voice sampling in light of the requirements of Article 20(3) of the Constitution and the power of the Magistrate to permit the investigating agency to record the accused's voice sample. An FIR was filed against the Appellant, Ritesh Sinha, and his associate, stating that they were involved in the collection of money from various people in return for promises of police jobs. The associate was apprehended, and his cell phone was taken. The Investigating Authority filed an application with the Chief Judicial Magistrate, Saharanpur (CJM) requesting that the court summon the Appellant for a voice sample in order to verify whether the conversations were recorded on the phone were between the associate and the Appellant.
Both the Judges presiding on the Hon'ble Bench agreed that providing a voice sample throughout the course of an inquiry would not constitute a violation of the accused's right under Article 20(3) of the Constitution. The court identified handwriting or finger impression as materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. It further propounded that, “The prohibition contemplated by the constitutional provision contained in Article 20(3) would come in only in cases of the testimony of an Accused which are self-incriminatory or of a character which has the tendency of incriminating the Accused himself and does not say that an Accused person shall not be compelled to be a witness.” It was also held that the fundamental right to privacy cannot be construed as absolute but must bow down to compelling public interest.
The Punjab and Haryana High Court in a recent order ruled that a judicial order to gather voice samples for investigation/comparison purposes cannot be considered to be a violation of the right to privacy. The judgment of additional sessions judges SBS Nagar to allow the Vigilance Bureau to obtain voice samples of two accused for comparison with their recorded calls was upheld by the high court bench headed by Justice Avneesh Jhingan. The current revision petition was filed to challenge the order of the Additional Sessions Judge permitting the Vigilance Bureau to take voice samples from the petitioners. The petitioners (both typists at Tehsil Banga Complex) were accused of collecting money from the Tehsildar and other revenue officers of the revenue department in order to have the sale deeds registered. During the proceedings, the Vigilance Bureau filed an application for permission to obtain voice samples from the petitioners, which was allowed. The petitioners contended that the impugned order violated Article 20(3) of the Constitution by infringing on the right to privacy. Here, the Court referred to Supreme Court's ruling in Ritesh Sinha’s and observed that voice samples in a sense resemble fingerprints and handwriting, it was added that the violation of the basic right to privacy cannot be used to impede the investigation by simply asserting that the voice on the intercepted phone conversations is not that of the petitioners without there being any comparables. The Supreme Court ruled in State of Bombay vs Kathi Kalu Oghad that this was not an infringement of Art.20(3) of the Constitution if an accused person is asked to give his specimen handwriting or signature; or impressions of his fingers, palm, or foot to the investigating officer or under court orders for the purpose of comparison under the provisions of Section 73 of the Indian Evidence Act. It was further declared by the court that until explicit provisions are engrafted in the Code of Criminal Procedure, 1973, by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in the exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India. In conclusion, the arguments put forth by the petitioners were rejected and the impugned order was upheld.
Article 142 gives the Supreme Court discretionary power, stating that in the exercise of its jurisdiction, the Supreme Court may pass such decree or make such order as is required for dispensing complete justice in any cause or matter standing before it. The powers vested with the court by virtue of this article have created uncertainty, initiated by the obliviousness to the fundamental rights of individuals. However, in Supreme Court Bar Association v. Union of India, the Apex Court stated that Article 142 could not be used to supplant the existing law, but only to supplement the law. But the Apex Court is required to introspect the exercise of power under this article.
Furthermore, privacy concerns are frequently cited as technology advances at a rapid pace, to the stage wherein technology is being utilized to deal with a variety of criminal cases, with a propensity to encroach on the privacy of the accused subject to investigation, criminal investigative techniques should be subjected to the stricter constitutional examination of the right to privacy.
The article first published on Lexology.com and the same can be accessed here.