Seizure of Mobile Phone whether Legal- Right To Privacy- Paradigm Change- Safeguard for Taxpayers during Search & Seizure
The statutes in all Fiscal Laws provide specifically for power of Search & Seizure. In fact, innumerable Search & Seizure operations are carried out throughput the country by Income Tax & GST authorities to curb tax evasion. There is a charter of rights available to taxpayers during Search operations but there are continuing reports of harassment and coercion by the Tax Authorities during the course of searches & surveys. One of the many grievances of the Taxpayers is the illegal seizure of mobile phones during the course of searches/surveys on the ground of violation of Right to Privacy and also as mobiles are purely for personal use and are not a business appliance and contain family photos & personal messages, which cannot be accessed by outsiders.
It is common knowledge that during search/survey under the Income Tax/GST it is standard SOP that the Revenue Officers ask to ‘hand over his phone’, whether or not the phone has got anything to do with the case. It cannot be denied that personal devices may contain sensitive and confidential personal information and photographs which cannot be made public.
It is common knowledge that the taxpayers move to the High Courts in writ petitions praying for declaring the searches ab- initio illegal on various grounds. One of the grounds consistently raised is that Searches are violative of the Right of Privacy. In a landmark 5 member Constitution Bench judgment of the Apex Court in the case of Pooran Mal v. The Director of Inspection (Investigation), New Delhi & Ors 1974 (1) SCC 345, the Apex Court held that there is no recognised right to privacy under the Indian Constitution. The Court also categorically held that the Income-tax authorities can use as evidence any information gathered from the search of the documents and accounts and articles seized although the search may be subsequently held by the Court as illegal. The Court held that neither by invoking the spirit of our Constitution nor by strained construction of the fundamental rights the exclusion of evidence obtained on an illegal search could not be established and the Court thus negated the plea of the Petitioner that the Department could not use the material seized in an illegal search against him. The Court held thus:
“It, therefore, follows that neither by invoking the spirit of our Constitution nor by a strained construction of any of the fundamental rights can we spell out the exclusion of evidence obtained on an illegal search.”
It would be trite to refer to 8 member Constitution Bench of the Apex Court in M. P. Sharma & others vs. Satish Chandra, District Magistrate, Delhi & others 1954 AIR 300, 1954 SCR 1077 which was followed in Pooran Mal case (supra). The Court repelled the plea of fundamental right to privacy and held thus:
“A power of search and seizure is in any system of jurisprudence in overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy,. analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction. Nor is it legitimate to assume that the constitutional protection under article 20(3) would be defeated by the statutory provisions for searches.”
A six member Constitution Bench of the Apex Court in Kharak Singh vs. State of Uttar Pradesh (1964) 1 SCR 332 reiterated that the right to privacy is not a guaranteed right under the Constitution and held thus:
“Having given the matter our best consideration we are clearly of the opinion that the freedom guaranteed by Art. 19 (1) (d) is not infringed by a watch being kept over the movements of the suspect. Nor do we consider that Art. 21 has any relevance in the context as was sought to be suggested by learned Counsel for the petitioner. As already pointed out, the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movements of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.”
The Right to Privacy again came up for consideration of the Apex Court and a 9 Judge Constitution Bench of the Apex Court was constituted to reconsider the correctness of the dictum of M. P. Sharma & others vs. Satish Chandra, District Magistrate, Delhi & others (supra) & Kharak Singh vs. State of Uttar Pradesh (supra) in the case of Justice K.S. Puttaswamy (Retd.) and Another v. Union of India and Others, (2017) 10 SCC 1, wherein the Court unanimously acknowledged the existence of Right to Privacy as an extension of the fundamental rights enshrined under Articles 19 and 21 of the Constitution and as an element of human dignity. The said judgment has given a new perspective to the Right to Privacy of the citizens.The Court after elaborate discussion & analysis of all the various judgements passed by the Apex Court concluded thus:
“83. Let the right of privacy, an inherent right, be unequivocally a fundamental right embedded in part-III of the Constitution of India, but subject to the restrictions specified, relatable to that part. This is the call of today. The old order changeth yielding place to new.”
The Court disposed the reference thus:
“The reference is disposed of in the following terms:
(i) The decision in M P Sharma which holds that the right to privacy is not protected by the Constitution stands over-ruled;
(ii) The decision in Kharak Singh to the extent that it holds that the right to privacy is not protected by the Constitution stands over-ruled;
(iii) The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.
(iv) Decisions subsequent to Kharak Singh which have enunciated the position in (iii) above lay down the correct position in law.”
It would be apropos to deal with the doctrine of ” fruit of the poisonous tree” which is meticulously followed in USA and “The Unfair Operation Rule” which is followed in UK which absolutely exclude illegally collected evidence. However, under the Indian Evidence Act 1872, there is no such absolute exclusion in our country and the courts have discretion to admit such evidence if found ‘relevant’. It should be borne in mind that no statute is above fundamental rights enshrined in the constitution.
It is relevant to cite Baldev Singh vs State of Punjab (1999) 6 SCC 172 wherein the 5 member Constitution Bench of the Apex Court in a case under NDPS Act held thus:
“We, therefore, hold that an illicit article seized from the person of an accused, during search conducted in violation of the safeguards provided in Section 50 of the Act, cannot by itself be used as admissible evidence of proof of unlawful possession of the contraband on the accused.”
After the implied debacle of Pooran Mal, the Courts should apply the “fruit of the poisonous tree” and/or “The Unfair Operation Rule” in India.
Seizure of personal Mobile Phones during Search & Seizure operations, after Puttaswamy’s Judgment declaring Right to Privacy as a Fundamental Right duly protected under Article 21 of the Constitution, is illegal and unwarranted. The judgment of the Karnataka High Court in Virendra Khanna vs. State of Karnataka (in WP No. 11759 of 2020, judgment dated 12.3.2021) holding that providing password to a mobile/electronic device, after a search warrant, neither tantamount to ‘self-incrimination’ nor can be considered a violation of right to privacy and thus is not constitutionally invalid does not appear valid after Puttaswamy’s Judgment.
It is pertinent that US Supreme Court has laid down certain protective measures against arbitrary seizure of electronic devices in the case Riley vs State of California. A strong case can be made that unauthorised access to a mobile phone is a blatant infringement of right to privacy. U.S. Supreme Court recognised, the onset of new technology cannot mean a situation where people have fewer rights for protection from coercive state action [Riley v. California, 134 S. Ct. 2473, 2445, 2489 (2014); Carpenter v. United States, 138 S. Ct. 2206, 2214 (2018)]. In Riley v. California (supra)the Supreme Court of USA observed thus:
“Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life”. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”
It would be apposite to refer to Delhi High Court in the case of Jatinder Pal Singh v. Central Bureau of Investigation & Ors. (CRL. M.C. 3118 of 2012), wherein the court disregarded illegally intercepted audio recordings and set aside the charges framed on the basis of such illegally intercepted audio recordings.
It is high time that the Legislature and/or the Apex Court should apply the dictum of Justice K.S. Puttaswamy (supra) as far as ” Right to Privacy ” is concerned as the crucial pillar in Pooran Mal’s reasoning has crumbled now and stands impliedly overruled. After Puttaswamy’s declaration of right to Privacy the admissibility of illegally obtained evidence is now being questioned. The Government/ Courts should issue necessary directions/circulars not to normally seize mobile phones particularly in Income Tax & GST searches & surveys. The Revenue authorities cannot and should not have access to the WhatsApp conversations. The potential for misuse of the personal information available on a mobile phone is grave and real, and necessitates strong checks on power to seize mobile phone.
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